Houghton v Jack & Jill Pre-School Association (Lithgow) Incorporated

DECISION OF PRESIDENT’S DELEGATE
Citation:	Houghton v Jack & Jill Pre-School Association (Lithgow) Incorporated [2023] NSWPIC 36
APPLICANT:	Judith Houghton
RESPONDENT:	Jack & Jill Pre-School Association (Lithgow) Incorporated
PResident’s Delegate:	Parnel McAdam
DATE OF DECISION:	30 January 2023
CATCHWORDS:	Workers Compensation Act 1987; work capacity dispute; section 38 period; whether worker had no current work capacity; meaning of likely to continue indefinitely; Roberts v University of Sydney applied; consideration of medical evidence; no weight to be given to opinion of an occupational physician concerning psychological injury; Held – award for the applicant of weekly payments under section 38.
Orders made:	1. The respondent pay the applicant $928 per week pursuant to s 38 of the Workers Compensation Act 1987 from 28 October 2022 to date and continuing, to be indexed from time to time in accordance with the legislation.

STATEMENT OF REASONS

BACKGROUND

Ms Houghton has worked in childcare for over 25 years. She suffered an accepted psychological injury on 13 December 2020 in the employ of the respondent. She has been unable to return to work since that time.
On 19 July 2022, the respondent made a decision reducing Ms Houghton’s weekly payments. That decision took effect on 28 October 2022. Ms Houghton commenced proceedings in the Personal Injury Commission (the Commission) disputing the decision of the insurer. Ms Houghton’s Application for Expedited Assessment (the Application) sought weekly payments pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act), although the Application was amended during the course of the hearing.

Issue in dispute

The Application lodged in the Commission incorrectly claimed weekly compensation benefit under s 37 of the 1987 Act. In fact, Ms Houghton has been paid in excess of 130 weeks of weekly benefits and accordingly falls within the period after the second entitlement period, or s 38 of the 1987 Act.
The real issue of substance in this matter is whether Ms Houghton can satisfy the requirements of s 38(2) of the 1987 Act; that is whether Ms Houghton has “no current work capacity and likely to continue indefinitely to have no current work capacity”.

The evidence

I have reviewed all of the evidenced lodged by the parties attached to the Application and Reply. The key documents relevant to the determination of the issues in dispute are discussed below.

The dispute notices

The s 78 notice determines that Ms Houghton is capable of work in suitable employment four hours per day, three days per week. The roles identified are childcare worker, call/contact centre worker and receptionist. The s 78 notice refers to a downgrade of capacity and the overturning of an earlier work capacity decision. The respondent then referred Ms Houghton for the consideration of Independent Medical Consultant (IMC), Dr Robin Mitchell. Dr Mitchell confirmed that Ms Houghton could work for four hours per day, three days per week, in suitable employment.
The s 78 notice determined that Ms Houghton could earn $354 per week in suitable employment, reducing weekly payments to $574 per week from 28 October 2022.
A review notice issued under s 287A is also attached, confirming the decision previously made.

The reports of Dr Mitchell

Dr Robin Mitchell is a “consultant occupational health physician/injury management consultant”. I note that as an occupational physician, Dr Mitchell’s training, skills and experience is in the realm of physical injuries rather than those of a psychological nature.
Dr Mitchell provides three reports. The first is dated 7 March 2022. Dr Mitchell examined Ms Houghton via telehealth. The report is said to be based on “the history provided at the assessment, the appropriate clinical examination, and the documentation provided”. Dr Mitchell discussed the history of the work injury and treatment undertaken (described as “counselling, on one occasion only”).
Under the heading “diagnosis” Dr Mitchell states: “Ms Houghton reports ongoing psychological issues and said that she was not going to return to any form of employment in the future”. He goes on to opine that Ms Houghton “would normally have, in my opinion, a physical capacity for any form of work” (emphasis added).
Dr Mitchell notes that the main issue relates to a “motivational or psychological issue” and suggests an independent psychiatric opinion be obtained. He specifically comments:
“As the diagnosis would appear to be of a psychological nature and there outside my area of expertise, I suggest that an independent psychiatric opinion be sought with respect to any underlying diagnosis. Note, this lack of formal diagnosis does not interfere with my recommendations with regard to capacity.”
Dr Mitchell formed the view that Ms Houghton lacked motivation to resume any form of work.
Dr Mitchell provides a further report dated 26 April 2022. He was asked specific questions in response to a Labour Market report provided to him. He opined that the roles identified in that report “would be appropriate and well within Ms Houghton’s capacity to manage”.
A third report is provided dated 16 May 2022. He was provided with a rehabilitation report and Dr Fruckacz’s handwritten response to that report. He states that he does not agree with Dr Fruckacz, as “his handwritten notes are perfunctory and do not provide any reason as to why his opinion should be regarded to reflect Ms Houghton’s condition”. He states:
“I note that Ms Houghton has remained off work for 2 years and previously advised me that she would not go back to work under any circumstances. Furthermore and importantly, she said to me that she had not sought any psychological counselling during that time.”

Dr Fruckacz

Dr Fruckacz is a consultant psychiatrist. He provides handwritten response to a fax questionnaire sent by the insurer. His diagnosis is adjustment disorder with anxious and depressed mood. The diagnosis is said to be work related. He outlines current symptoms. The current treatment plans are “continue to see psychologist. Continue on medications. Needs time to recover and consolidate improvement”. He states “she will need more time to recover and consolidate any improvements”.
In response to questions about capacity, Dr Fruckacz states “she is unfit to engage in pre-injury duties”. In response to the vocational options identified Dr Fruckacz states “remains too symptomatic” for each.

Psychology assessment report of Pierrick Jacquety

Pierrick Jacquety is the applicant’s treating psychologist. Mr Jacquety provides a report dated 7 November 2022. Mr Jacquety notes that Ms Houghton attended a total of 25 sessions with him and 20 sessions with clinical psychologist Tracy Bauer. Specific to the question before me relating to capacity, he states:
“In terms of Mrs Houghton’s capacity for work, at this stage it is my opinion that she does not have capacity for work, as she continues to be prone to episodes of anxiety and depression. Additionally due to her age, she would likely be limited in her opportunities and potential be met with a lot of rejection from potential employers, leading to a likely deterioration in her mental state. She may benefit from volunteer work as a means to find further meaning in her life, however a potential risk would be running into people from her previous job.”

Certificates of capacity

A number of certificates of capacity are attached to the Application. Those certificates date from March 2022 to 27 November 2022. Initially, Ms Houghton was certified with capacity for four hours per day, two days per week. This was reduced to Nil capacity in July 2022.

The applicant’s statement

Ms Houghton provides a statement dated 2 December 2022. She outlines the history of her injury and symptoms. Ms Houghton comments on some of the particular issues relevant to the current matter. In relation to her treatment she states:
“Initially I found it a little difficult to obtain treatment for my injury due to the COVID pandemic restrictions. I had some tele-health psychologist appointments with David Loe who was located in Parramatta.
I was then able to get in to see Tracy Bauer at PsychSolutions in Bathurst approximately once a fortnight.
Tracy left to take another job and I began to see Perrick Jacquety, also at PsychSolutions in Bathurst, again on a fortnightly basis.
I have also seen Dr Frukcaz, Psychiatrist for treatment on a number of occasions. He told me that he diagnosed me with adjustment disorder with anxious and depression mood.”
In response to comments that she allegedly made by Dr Mitchell, she states:
“I do not recall ever saying that I will not go back to work at all. I would love to be able to go back to work if I get well enough, and I feel like I still have a lot to offer as a childcare worker.”

Reports of Altius

Altius provides a vocational assessment report, a labour market analysis, and a job seeking report on behalf of the respondent. At the time the vocational assessment report was issued (3 September 2020), Ms Houghton had capacity for four hours, two days per week. She scored extremely severe or sever on the DASS-21 scales.
Three suitable employment options were identified. It was recorded that “upon improvements in current psychological states [Ms Houghton] would consider pursuing the identified vocational options”.
The labour market analysis was conducted on 29 October 2021. At that time Ms Houghton was certified to have capacity for four hours per day, three days per week. As is usual for a labour market analysis, three employers were contacted in relation to each of the identified employment options.

Submissions

Submissions were provided at the teleconference and recorded. The below is a summary of the parties’ submissions.

Applicant’s submissions

The applicant submits that the report of Dr Mitchell should not be given any weight. He is not qualified to assess current work capacity and himself recommends that a psychiatric report be obtained. On review of the reports, Dr Mitchell’s lack of appropriate qualifications becomes evident. In addition to his expertise to provide the report, it is also based on two misstated facts. Firstly, Ms Houghton never stated that she would not return to work, and secondly, there has been extensive treatment undertaken as indicated in the report of
Mr Jacquety.
The certificate of capacity from July onwards certifies Ms Houghton with no current work capacity. This is supported by Dr Fruckacz.
The applicant submits there is no evidence that the Commission could rely upon that shows Ms Houghton has current work capacity. In relation to the requirement in s 38(2) of the 1987 Act that the incapacity is likely to continue indefinitely, the reports of Dr Fruckacz,
Mr Jacquety and the certification of capacity show no indication of any imminent recovery.

Respondent’s submissions

The respondent submits that the applicant has capacity to work four hours per day, three days per week. The applicant was certified with part time capacity for approximately two years. The labour market report identified three roles as suitable and this is supported by the vocational assessment report.
In respect of Dr Mitchell, he was engaged as an independent medical consultant. It is submitted that weight should be given to his reports as they summarise all of the other evidence and should be considered. He took a history from the applicant that she is independent, is capable of looking after a 26 Acre property, and could return to work in a workplace other than her pre-injury environment. Dr Mitchell liaised with Dr Austria, the applicant’s treating general practitioner, who said that the applicant had capacity for volunteer work on a part time basis. Dr Mitchell considered and confirmed the vocational assessment.
The respondent submits that following the issue of the work capacity decision there was a downgrade, which was unexplained by Dr Austria.
The respondent submits that I could not be satisfied that the applicant’s incapacity would be likely to continue indefinitely. In that regard, the applicant has the onus. The respondent submits that the report of Mr Jacquety notes that she would benefit from volunteer work and in the applicant’s own statement, she says that she would like to go back to work.

Applicant in response

The applicant provided brief submissions in response.
In response to the respondent noting that the report of Dr Mitchell was a summarisation of other views and evidence – that is in essence the problem. He does not rely on specialised knowledge he possesses.
In relation to any deficiencies in reasoning from Dr Fruckacz and Mr Jacquety – they are qualified to provided opinions based on their background and if there’s a deficiency in reasoning it should be challenged by someone with the qualifications to do so. There is nothing in the evidence that suggests an imminent work capacity.
The applicant submits that Ms Houghton’s statement about wanting to return to work were in the context of refuting that she told Dr Mitchell that she’d never work again.

Amendment of the APplication

During the course of proceedings it became apparent that the Application was lodged claiming weekly benefits under s 37 of the 1987 Act, which in fact should have been claimed under s 38, as the applicant had been paid more than 130 weeks of weekly payments.
Accordingly an application was made to amend the Application to make a claim under s 38. This was unopposed by the respondent, and accordingly the Application is amended to that effect.

Discussion

These proceedings concern s 38 of the 1987 Act.
As Ms Houghton has not returned to work for more than 15 hours per week, in order to be entitled to weekly benefits, she must satisfy the requirements of s 38(2):
“A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.”
The section involves a number of considerations. The evidence of the parties and submissions go to the applicant’s capacity, and is largely focussed on her medical restrictions.
Before turning to the question of Ms Houghton’s capacity, it is appropriate to consider the Commission’s jurisdiction to make the order sought by the applicant. This issue was not raised before me during the proceedings so I will only comment briefly on it.
Section 38(2) refers to an assessment by the insurer. Previously, based on Lee v Bunnings Group Limited [2013] NSWWCCPD 54 (Lee) the Commission did not have jurisdiction to make an award in the s 38 period. Since the decision of Lee, the Workers Compensation Legislation Amendment Act 2018 made amendments to the jurisdiction of the Commission, restoring the Commission’s jurisdiction in regard to work capacity disputes. In Nzobakenga v Costaexchange Pty Ltd [2023] NSWPIC 11, Member Bamber determined that the Commission “jurisdiction to make findings about work capacity and orders for payment of weekly compensation relating to the s 38 period” (at [121]). I agree with this conclusion.
The other aspects of s 38(2) for consideration are whether Ms Houghton has “no current work capacity” and that she is “likely to continue indefinitely to have no current work capacity”.
The definition of “no current work capacity” appears in Schedule 3 to the 1987 Act:
“An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
This definition is connected to the definition of suitable employment in s 32A of the 1987 Act. That definition includes a list of factors that must be considered and other factors that cannot be considered. For present purposes, the relevant factors relate to Ms Houghton’s medical capacity, being “the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B)”.
The evidence in the case, as is evident from the summary above, really concerns
Ms Houghton’s medical capacity to perform suitable duties. No submissions were made addressing the other aspects of the definition of suitable employment in s 32A, and based on my determination, it is not necessary to consider those aspects.
The respondent’s s 78 notice relied on the report of Dr Mitchell. Both parties made submissions addressing the weight that I could give to that report.
As already identified, Dr Mitchell is an occupational physician, and has no specific qualifications in dealing with psychological injuries (the injury suffered by Ms Houghton and what, it is alleged, continues to cause her incapacity). Dr Mitchell acknowledges as much in his first report where he suggests an independent psychiatric opinion be obtained. Despite his lack of qualifications to provide such an opinion, he goes on to make comments regarding her maximum medical improvement and capacity, amongst other things.
The respondent submits that I should give weight to the report as Dr Mitchell reviewed and summarised all of the other evidence, contains an appropriate history, and liaised with the applicant’s treating doctor. Those factors are generally how such a report is developed and structured. That does not mean that I can give it weight where the expert has no qualifications to provide the opinion contained therein. Whilst Dr Mitchell’s report may be comprehensive, it was provided absent the crucial requirement of an expert opinion – expertise.
In addition to the lack of qualification of Dr Mitchell to comment on Ms Houghton’s psychiatric symptomatology and how it affects her capacity, Dr Mitchell appears to have proceeded on two incorrect assumptions. The first is the comment that “she has not received any significant treatment other than one session of psychological counselling 2 years ago”. This assertion is entirely incorrect and contradicted by the near 50 sessions with two psychologists that
Ms Houghton has attended, as well as appointments with Dr Fruckacz.
The other assertion is that Ms Houghton “said that shew was not going to return to any form of employment in the future”. It may be here that Dr Mitchell has mis-recorded what he was actually told by Ms Houghton. This commentary appears to have coloured Dr Mitchell’s view of the applicant in some way, and is contradicted by the applicant’s statement evidence and the vocational assessment report, which records:
“Ms Houghton advised minimal interest to engage in any type of employment at the current time owing to significant psychological impairments, however, reported that upon decrease in anxious symptomatology, she would like to obtain employment in her preinjury role as a Pre-School Teacher.”
Further, the report does not comply with Procedural Direction PIC4 – Expert Witness Evidence. The repot does not contain details of the expert’s qualifications to prepare the report or identify that a particular issue or question falls out of his field of expertise (see [11]). As such it is probably that the evidence is not admissible.
In any event, I find that I can give the report of Dr Mitchell no weight. Dr Mitchell did not possess the expertise to express the opinion contained therein and further proceeded on incorrect assumptions made about Ms Houghton. Given the strong reliance placed on the reports of Dr Mitchell in the s 78 notice (where it is stated that “Given that Dr Mitchell conferred with Dr Austria to form a firm basis of his reports, we rely on them to form the view that you are fit for 4 hours per day 3 days per week in suitable employment”) the basis for much of the respondent’s case falls away.
However, as the respondent points out, the applicant still has the onus in this matter.
Ms Houghton has to prove that she has no current work capacity and that incapacity is likely to continue indefinitely.

The abundance of medical opinion in this matter supports the conclusion that Ms Houghton has no current work capacity. Her treating general practitioner has, since July 2022, certified Ms Houghton with nil current work capacity.
Dr Fruckacz, in responding to a fax questionnaire, has answered “no” for the reason “remains too symptomatic” to each of the proposed suitable employment options.
Mr Jacquety, treating psychologist, opines that Ms Houghton “does not have capacity for work”. He qualifies that by stating that “she may benefit from volunteer work as a means to find further meaning in her life”. I note here that even if I accept that Ms Houghton had some capacity for volunteer work, that is not equivalent to capacity for work in suitable employment. Ms Houghton’s statement confirms the medical position, that is that she “can’t even think about going back to work without getting extremely anxious and worked up”.
On the other side of the ledger is the report Dr Mitchell, which I have dealt with above and explained why I do not accept. In addition, there is the vocational assessment report and the labour market analysis. The vocational assessment report was prepared on
3 September 2020, at a time when Ms Houghton was certified with capacity for four hours per day, two days per week. Even that report identified Ms Houghton’s extreme psychological disfunction under the DASS-21 scales, stating:
“Given the significant psychological dysfunction, Rehabilitation Services recommend a review of Ms Houghton’s current medication and diagnosis with a Psychiatrist in order to ensure she is effectively managing psychological symptoms.”
The labour market analysis is dated 29 October 2021. As with the vocational assessment report, this is significantly prior to the downgrade in capacity Ms Houghton suffered from
July 2022.
The respondent’s vocational evidence ranges from 1.5 to 2 years in age and does not appropriately consider the medical status of Ms Houghton from July last year. In other circumstances, if there existed other available evidence considering capacity, the inconsistency between the capacity recorded in the vocational reports and a downgrade in capacity after the reports have been issued can be reconciled. In present circumstances, I can give no weight to the report of Dr Mitchell and all of the other medical evidence supports a finding that Ms Houghton has no current work capacity. I am unable to reconcile the inconsistency in favour of the respondent and accept the medical evidence before me, which is uncontradicted. Ms Houghton has no current work capacity and has had no capacity since July 2022, or, at the latest, since the time the work capacity decision came into effect. The applicant has met her onus to prove such a finding.
There remains the question of whether Ms Houghton “likely to continue indefinitely to have no current work capacity”. Both parties made submissions addressing this point. Again, the applicant has the onus to prove that this is the case.
In Roberts v University of Sydney [2021] NSWWCC 25 (Roberts) Arbitrator Harris (as he then was) considered the meaning of that portion of s 38(2) of the 1987 Act. He states:
“[99] I agree with the applicant’s submission that the meaning of ‘indefinitely’ is akin to an unknown or non-specific period.
[100] I also agree with part of the respondent’s submission that the meaning relates to the ‘foreseeable future’, although the meaning is probably more restrictive than that because the satisfaction of the concept requires incapacity of an indefinite nature rather than just in the foreseeable period.
…
[103] The meaning of ‘indefinitely’ is not the same as ‘definitely’. ‘Indefinitely’ does not mean ‘permanent’, although this was only indirectly suggested by the respondent when it submitted that it meant the same as ‘maximum medical improvement’.”
Member Wynyard adopted that interpretation in Holmes v Central Coast Council [2022] NSWPIC 70 (Holmes). I agree with the interpretation in Roberts.
The answering of the question is a factual issue (Holmes). The evidence in this case supports a finding that Ms Houghton’s incapacity is likely to continue indefinitely. She has been certified as unfit for an extensive period. The medical evidence in the certificates of capacity, in the reports of Dr Fruckacz and Mr Jacquety, and in the applicant’s statement provide no indication that Ms Houghton is going to recover capacity in some determinate period.
Whilst Mr Jacquety expresses an opinion that the applicant may benefit from volunteer work, that is not “employment in work” per the definition of suitable employment in s 32A of the 1987 Act. There have been no steps toward obtaining any volunteer positions and the opinion is expressed not as though Ms Houghton is ready for such a role, but that “she may benefit” from it in terms of recovery. Mr Jacquety also describes risks associated with such action.
Ms Houghton expresses a couched desire to eventually return to work in her statement:
“I do not recall ever saying that I will not go back to work at all. I would love to be able to go back to work if I get well enough, and I feel like I still have a lot to offer as a childcare worker. One of the things that causes me a great deal of anxiety about going back to work is the possibility of having to work with someone who used to work at Jack and Jill with me.”
The respondent referred to this part of the applicant’s statement in their submissions. In my view it supports a proposition that Ms Houghton’s incapacity is likely to continue indefinitely. As the applicant submits, the comment is clearly addressed to Dr Mitchell’s erroneous assumption, that infected his report, that Ms Houghton never wanted to go back to work.
Further, expressing a desire to “go back to work if I get well enough” tends to suggest an indefinite period, particularly when there is no evidence going to when Ms Houghton might be “well enough”. A belief that one “still has a lot to offer” as an employee is also not an expression of capacity or evidence as to when incapacity may expire.
It also must be acknowledged that the words of the section are “likely to continue indefinitely”. There does not need to be absolute certainty that it is so. It is a test akin to the balance of probabilities.
Accordingly, for the reasons above I am satisfied that Ms Houghton is likely to continue indefinitely to have no current work capacity. The applicant’s medical evidence supports such a conclusion and there is no contravening evidence that I am able to rely on to refute it.

Decision

The applicant has no current work capacity and is likely to continue indefinitely to have no current work capacity. Accordingly, she satisfies the requirement for ongoing weekly payments in s 38(2) of the 1987 Act. I will make an award in her favour.

[2023] NSWPIC 36

30 January 2023