Hurley v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hurley v Westpac Banking Corporation [2024] NSWPIC 326
APPLICANT:	David Wayne Hurley
RESPONDENT:	Westpac Banking Corporation
MEMBER:	Mitchell Strachan
DATE OF DECISION:	21 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation; general claim for medical expenses; psychological injury accepted; whether injury ongoing; whether applicant has no current work capacity; Held – applicant has no current work capacity; award for the applicant for weekly compensation and medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury in the course of his employment with the respondent with a deemed date of injury of 30 November 2021. 2. The applicant’s pre-injury average weekly earnings were $3,237.05 per week. 3. The applicant has had no current work capacity from 30 November 2021 to date. 4. The applicant’s entitlement to weekly compensation under ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) exceeds the adjusted maximum statutory rate pursuant to s 34 of the 1987 Act. 5. The respondent to pay the applicant weekly compensation as follows: a. 23 April 2022 to 23 July 2022 at the rate of $2,318.10 per week pursuant to s 36 of the 1987 Act; b. 24 July 2022 to 30 September 2022 at the rate of $2,318.10 per week pursuant to s 37 of the 1987 Act; c. 1 October 2022 to 31 March 2023 at the rate of $2,341.80 per week pursuant to s 37 of the 1987 Act; d. 1 April 2023 to 30 September 2023 at the rate of $2,395.30 per week pursuant to s 37 of the 1987 Act; e. 1 October 2023 to 31 March 2024 at the rate of $2,423.60 per week pursuant to s 37 of the 1987 Act, and f. 1 April 2024 to date and continuing at the rate of $2,497.70 per week pursuant to s 37 of the 1987 Act. 6. The respondent to have credit in accordance s 50 of the 1987 Act for any sick leave paid during the periods in order 5 above. 7. The parties have liberty to apply with respect to the indexed rates of weekly compensation in order 5 above within 14 days. 8. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant joined St George Bank in 2005, prior to St George Bank merging and becoming a subsidiary of the respondent. The applicant was employed in a senior executive role with the respondent.
Following the merger between St George Bank and the respondent, the applicant experienced perceived interpersonal difficulties with colleagues leading him to develop a psychological injury. He made a claim for workers compensation benefits on the respondent which was ultimately declined.
The applicant commenced proceedings in the Personal Injury Commission (Commission) on 15 February 2023 seeking weekly compensation, medical expenses and lump sum compensation.
The matter initially came before Member Garner for preliminary conference on or about
22 March 2023. The matter was unable to be resolved and was listed for conciliation conference and arbitration hearing on 13 April 2023 for determination of a liability dispute with respect to injury and a defence under s 11A of the Workers Compensation Act 1987 (the 1987 Act), the extent and quantification of the applicant’s entitlement to weekly compensation and medical expenses and the extent and quantification of the applicant’s entitlement to lump sum compensation in accordance with s 66 of the 1987 Act in respect of psychological injury.
On 14 April 2023, Member Garner issued a certificate of determination – consent orders, referring the matter to the President for referral to a Medical Assessor for assessment of whole person impairment. Implicit in the referral, and conceded in the course of the arbitration hearing before me, the injury dispute and defence under s 11A of the 1987 Act were not maintained by the respondent. The balance of the issues in dispute were adjourned to a date to be fixed following the assessment by the Medical Assessor.
The applicant was assessed by Medical Assessor Yu-Tang Shen on 21 August 2023 and a Medical Assessment Certificate (MAC) was issued dated 25 August 2023 assessing the applicant’s whole person impairment at 8%.
The MAC of Medical Assessor Yu-Tang Shen was the subject of an appeal to a medical appeal panel and was confirmed on appeal (Hurley v Westpac Banking Corporation [2024] NSWPICMP 173).
The matter came before me on 29 May 2024 for conciliation and arbitration hearing with respect to the remaining issues in dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether there is any ongoing effect of the injury giving rise to an entitlement of weekly compensation, and
(b) entitlement to s 60 expenses.
At the commencement of the arbitration hearing, the respondent indicated it would make a formal submission that the Commission did not have jurisdiction to make an award under s 38 of the 1987 Act. While the issue was not previously notified, this was not opposed by the applicant.
The parties agreed that if I were to find there were ongoing effects of injury giving rise to an award of weekly compensation, then a general order for s 60 expenses would be appropriate.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $3,237.05 in accordance with the respondent’s wage schedule dated 20 May 2024.
It was further agreed between the parties that at all times the PIAWE exceeded the maximum statutory rate pursuant to s 34 of the 1987 Act and that any award could not exceed the amount in s 34 (as indexed).
Finally it was common ground that the respondent would have credit for any period where payments of sick leave had been made to the applicant.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conciliation conference and arbitration hearing in person on
29 May 2024 conducted by MS Teams.
The applicant was represented by Mr Perry of counsel, instructed by Mr Velleley of Slater & Gordon Lawyers. Mr Robison of counsel appeared for the respondent, instructed by
Ms Corry and Ms Stafidas of HWL Ebsworth Lawyers. Ms Anota attended on behalf of the self-insured respondent employer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Oral evidence

Neither party sought leave to adduce any oral evidence or cross-examine any witness.

Documentary evidence

The following documents were in evidence before the Commission:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attachments;
(c)    Medical assessment certificate of Medical Assessor Tu-Tang Shen dated
25 August 2023;
(d)    Application to admit late documents filed on behalf of the applicant dated
20 May 2024, and
(e)    Application to admit late documents filed on behalf of the respondent dated
20 May 2024.
There was significant documentary evidence before the Commission, which the parties agreed was relevant only to liability issues which were ultimately resolved by consent prior to the referral of the matter to the Medical Assessor.
In Gamestar Pty Ltd v Lockhart (1993) 112 ALR 623 (Gamestar) the High Court observed that a Court is not required to “search for supportive evidence” in support of a claim. The High Court stated:
“In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence which supports it. But if the opportunity is not taken, the judge is not bound to set out on a search for supportive evidence to support a claim which the party has failed to articulate intelligibly. Gaudron J was correct in holding that there was no denial of natural justice.”
These observations have been applied in the Workers Compensation Commission (see for example Jaffarie v Quality Castings Pty Ltd [2017] NSWWCCPD 2 at [208]; Carter v Star Track Express Pty Ltd [2015] NSWWCCPD 60 at [34] and in the Commission (Sara v G&S Sara Pty Ltd [2021] NSWPIC 286). The principle is otherwise consistent with the objects of the Personal Injury Commission Act 2020 which provide that the Commission is to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible” (section 3, Personal Injury Commission Act 2020).
I otherwise observe that the Commission has a statutory obligation to provide a “brief statement of reasons”.
Consistent with the observations of the High Court in Gamestar, in determining the remaining issues in dispute, I have confined my consideration to the evidence referred to by the parties during submissions.

Applicant’s evidence

The applicant relies on three statements dated 10 March 2022, 8 February 2023 and
20 May 2024.
The first statement dated 10 March 2022 was prepared with the assistance of SureFact Australia. It sets out the applicant’s employment background, including that at that time he was employed with the respondent having joined St George Bank (now a subsidiary of the respondent) in 2005 following a successful career with Westpac, CBA and ANZ including the latter two in roles as an Executive Manager and Senior Audit Manager.
He details how in 2007/2008 the respondent announced a merger with St George and his trepidation that he may be seen as the junior manager he was when he left the respondent in 2005 rather than the senior manager he was at the time of the merger.
The statement details his complaints and perception of interpersonal difficulties he faced following the merger leading him to feel unfairly targeted and unsupported leading to psychological injury. As liability has been accepted for the claimed psychological injury, and I am only required to consider the issues of incapacity and medical expenses, I have not further set out the applicant’s complaints giving rise to the injury.
It is evident from the applicant’s statement though that he feels significant grievances towards the respondent and his perception of his treatment by them, particularly in light of his significant career achievements and contributions some of which he sets out at paragraph 37 of his statement.
During submissions, the respondent referred to paragraph 142 of the applicant’s statement where he stated he has “many hobbies (drawing, reading, walking, kayaking, fishing, golf, rock and roll dancing) and other than generally mild asthma, I am in good health”.
The applicant provided a further statement, prior to the current proceedings being commenced, dated 8 February 2023.
He details that he continues to see Dr Ian Jeffries of the Newcastle Family Practice for his mental health issues and had, until recent to the statement being prepared, consulted a psychologist as well, but Dr Jeffries advised that he did not consider continuing to consult the psychologist would be of benefit. He continued to take fluoxetine daily for depression.
He describes his ongoing symptoms including poor concentration and being easily distracted, very poor memory, consistently low mood, lack of energy and motivation, difficulty sleeping, resulting tiredness, poor appetite and weight loss, reduced selfcare and occasional suicidal thoughts.
The applicant’s final statement is dated 20 May 2024 and was prepared immediately prior to the conciliation and arbitration hearing before me.
The applicant states:
(a)    his concentration remains very poor and he is still easily distracted;
(b)    he suffers from poor memory and recall and lacks energy and motivation;
(c)    his mood is slightly improved due to the medication he is taking however he still has difficulty sleeping at night leaving him tired during the day;
(d)    he only tends to do basic tasks around the house and apart from that he finds himself zoning out and “maybe doing soemthing like playing Scabble”;
(e)    his concentration is poor and he cannot remember the last time he read a book, and
(f)    he will go for a walk in the afternoon but that is generally the only time he leaves the house most days.
The applicant records that he had previously volunteered as the treasurer of the Yacaaba Centre however he left the role as he did not agree with the governance and he was too uncomfortable with confrontation to raise the issues. He did not consider it was proper for him to remain in the role.
He avoids social situations and now often his wife will go out alone. On the rase occasions when he does go out, he avoids conversation and does not participate in groups.
He confirms that he continues to see Dr Jeffery and takes alvesco and desvenlafaxine.
He remains upset about how his career was taken from him and does not see any way that he can return to work before reaching retirement age.

Medical evidence

Medico-legal reports

Dr Khan, consultant psychiatrist, assessed the applicant and prepared a report addressed to his solicitor dated 28 September 2022. Dr Khan records a history of the onset of psychological symptoms within the context of interpersonal difficulties faced by the applicant in the course of his employment with the respondent. He recorded (as at September 2022) the applicant continued to experience pervasive symptoms of depression impacting various domains including his employability.
He noted that prior to the subject injury the applicant’s mental state was stable and he was not experiencing any symptoms of depression and anxiety and he was not engaging in any mental health treatment.
Dr Khan diagnosed the applicant with a major depressive disorder and generalised anxiety disorder. He did not consider he met the diagnostic requirements for post-traumatic stress disorder. He considered his prognosis was guarded and that he continued to suffer from pervasive symptoms of depression and anxiety.
Dr Khan did not consider the applicant capable of returning to his pre-injury employment or any other employment within his education, training, experience and skills for the foreseeable future. Dr Khan provided a psychiatric impairment rating scale (PIRS) assessment and with respect to employability assessed a class 5 noting the applicant “is unable to work due to the pervasiveness of his mental health and cognitive difficulties”.
Dr Verma, consultant psychiatrist and occupational physician, assessed the applicant and prepared a report addressed to the respondent dated 3 August 2022. The report is titled “Employee Fitness for Duty/Work Assessment and Report”.
Dr Verma recorded (as at August 2022) the applicant’s wife forces him to change his clothes and shower on a daily basis. He is able to do some tasks such as putting clothes on the line. His driving is generally okay although he had had a recent accident. He plays golf once or twice a week. He has not done yoga for a few weeks. He continues to walk 7km or 8km with his wife on a daily basis.
On mental state examination, Dr Verma noted the applicant was dressed in causal clothes, had reasonable eye contact, his speech was within normal limits and that there was no formal thought disorder or perceptual abnormality.
Dr Verma noted the applicant presented with “major depressive disorder in the context of a long history of a poor subjective workplace experience… his mood was low and there was evidence of reduced appetite, loss of energy, a sense of worthlessness, diminished ability to think or concentrate and recurrent thoughts of death.”
Dr Verma considered the applicant’s significant, ongoing symptoms were a barrier to his return to work and he required robust treatment and his prognosis for symptomatic recovery was guarded, including with respect to return to work at an alternative workplace. He considered the applicant unfit for any work for the next six months and that a review of his fitness for duty could be undertaken in another six months if considered appropriate.
Dr Roberts, psychiatrist, assessed the applicant and provided a report to the respondent’s solicitor dated 30 March 2022.
Dr Roberts recorded that when he questioned the applicant about work, he stated “he attempts not to think about work; that he tries to undertake enjoyable activities; that he plays gold once or twice per week, on each occasion playing 18 holes.”
Dr Roberts noted the applicant referred to working around the garden, reading novels, drawing pictures which he gives to people and spending time with his grandchild.
Dr Roberts further recorded that the applicant has “gone back to the local bowling club and was involved with dancing; that he walks each day with his wife and that once per month he ‘does the books’ for the Yacaaba Women’s Crisis Centre”.
In terms of the grandchild, he accompanies his wife to visit her since she does not want him to be alone due to her fear he may self harm.
Dr Roberts took a history of past psychological treatment including:
(a)    1998 in the context of a family fallout during a wedding;
(b)    2010 in the contect of his wife being diagnosed with breast cancer;
(c)    2014 and 2019 due to work stress, and
(d)    2021 in the context of the current claim.
Following a detailed examination Dr Roberts expressed the opinion that he did not consider the applicant was mentally ill. He considered that the applicant had made a decision not to return to work with the respondent. Dr Roberts considered the applicant was fit, from a psychological perspective, to undertake any employment for which he is suited by virtue of his training and experience, including working for the respondent but the applicant elects not to do so.
He conducted an informal PIRS assessment and assessed his impairment at 1 to 3% which Dr Roberts described as being within the normal variation of the general population. He considered that this confirmed his clinical impression that the applicant had a history of being upset and distressed by a variety of circumstances in his employment but that he had not contracted a mental illness.
Dr Roberts provided a supplementary report dated 22 January 2023. Dr Roberts was asked to consider further material but ultimately maintained the opinion expressed in his earlier reports. He noted that he was unable to correlate his examination with the symptoms described to Dr Khan.

Treating medical evidence

Dr Karthik Modem, consultant psychiatrist, provided a report to the applicant’s general practitioner dated 9 March 2022. Dr Modem notes the onset of psychological symptoms.
Dr Modem noted on mental state examination the applicant was well groomed and clean shaven. He initiated and maintained eye contact and engaged well and rapport was easily established.
Dr Modem considered the applicant met the criteria for a major depressive disorder. He also considered he met the requirements for post-traumatic stress disorder.
Dr Modem reported to the general practitioner again on 17 May 2022. As part of a comprehensive treatment plan Dr Modem recommended aerobic exercises and “activity scheduling”.
The respondent referred me to the clinical records of the applicant’s treating general practitioner, Dr Jeffery of Newcastle Family Practice. It was noted the records show an active past history of depression from 11 November 2019. The clinical note for 11 November 2019 noted “feeling depressed. Requests referral to a psychologist. Has a long history of depression, has seen psychologist in the past”. The clinical note continues with reference to various stressors at that time.
The general practitioner has provided various certificates of capacity, all certifying the applicant as having no current work capacity. The most recent is dated 16 May 2024 and certifies the claimant as having no current work capacity from 16 May 2024 to
16 August 2024.

The applicant attended on Ms Lyndell Moore, psychologist. He attended from late 2019 for five sessions and by March 2020 the applicant indicated he didn’t require further counselling and was discharged.
The applicant saw Ms Moore again in 2021 however Ms Moore was not “Workcover accredited” and he was referred to other practitioners.

Medical assessment certificate

Dr Yu-Tang Shen, Medical Assessor, was appointed by the Commission to assess the applicant’s degree of whole person impairment and provided a MAC dated 25 August 2023. The certificate was upheld and confirmed on appeal.
Medical Assessor Shen took a history from the applicant of the difficulties leading to him ceasing work with the respondent. He recorded that the applicant still feels depressed occasionally. He sometimes had issues falling asleep as well as waking in the night and finding it difficult to return to sleep. He has nightmares about work. He sometimes feels like going to sleep and not waking up which occurs occasionally. He has been going out, seeing friends and playing golf. He has a good marriage and is financially secure. His concentration is up and down and he has to make a list on his notebook to stick to things. He worries about going out, meeting people who have the personality similar to his manager.
Medical Assessor Shen provided a diagnosis of major depressive disorder in partial remission.
Medical Assessor Shen noted that there were inconsistencies in the assessment including the contrasting accounts he gave about his depression in 2019 and the account for his GP notes.
Medical Assessor Shen provided a PIRS assessment finding he had no impairment with respect to self care and personal hygiene and mild impairments with respect to social and recreational activities travel and social functioning.
He assessed a moderate impairment with respect to concentration, persistence and pace, noting that while he has been able to reach a few pages at a time, he struggled with his concentration and recall.
Medical Assessor Shen assessed a class 5, being the highest level of impairment, for employability. He noted that the applicant had not tried to work as he cannot maintain his concentration. He has not looked for alternative work as his anxiety levels are too high and he is no longer himself and doesn’t have capacity anymore.

SUBMISSIONS

The submissions of the parties during the arbitration hearing were recorded and I will not repeat each of the arguments of counsel in these reasons however the key issues are summarised below.

Applicant’s submissions

With respect to the jurisdictional issue, the applicant submitted that in circumstances where the claim had been declined and no payments of weekly compensation had been made, the issue was the subject of binding authority and that the Commission has jurisdiction.
Further, in any event, the applicant had recently made an application pursuant to s 38 of the 1987 Act on the respondent’s insurer for their determination.
With respect to capacity, the applicant submitted that at all times since the applicant ceased work, he has had no assessable capacity at all, including when regard is had to the definition of suitable employment in s 32A of the 1987 Act.
The applicant submitted (and it was not controversial) that it is now accepted that he sustained a compensable injury over a period of time in the course of his employment with the respondent.
The precise nature of the psychological condition that the applicant sustained has been differently diagnosed by a number of specialists however the diagnosis of a major depressive disorder is accepted by the majority of doctors who assessed the applicant. The applicant did not press the diagnosis of post-traumatic stress disorder.
The applicant submitted that I should accept the observations of Medical Assessor Shen that the applicant did not have any capacity for any employment whatsoever, as at
21 August 2023.
The applicant submitted that this position is further supported by the opinion of Dr Khan. He has said since (Dr Khan’s assessment) he has not tried to work as he cannot maintain his concentration. He has not looked for alternative work because his anxiety levels are too high, he is not himself, he does not have capacity to do that anymore.
The applicant submitted he disclosed to Medical Assessor Shen that he does have friends. He talks to his childhood friends, plays golf with golf friends and has gone to the golf course where he has met and made friends with whom he plays golf and sees once a week. He also conceded he goes out for lunch with his neighbours once a week. These concessions are the basis for the lower impairment allocations for various PIRS categories. This does not however impinge on the higher assessment for employability.
The applicant submitted that his treating providers, including his general practitioner
Dr Jeffers and his psychologist Ms Moore were well placed to provide opinion based on their ongoing therapeutic relationship.
The applicant sought awards of weekly compensation under ss 36 and 37 of the 1987 Act at 95% of the applicant’s agreed PIAWE for the first 13 weeks and then 80% to date and continuing together with a general order for medical and related treatment expenses under s 60 of the 1987 Act.
The applicant submitted he was entitled for an award during the time he was paid sick leave however subject to adjustment in accordance with the relevant legislation.

Respondent’s submissions

Jurisdiction

As a preliminary issue, the respondent made a formal submission that the Commission did not have jurisdiction to make an award of compensation after the end of the second entitlement period under s 38 of the 1987 Act. This was a formal submission only and the respondent did not seek to persuade me of the correctness of the position, conceding the issue had been considered by the Court of Appeal in Sabanayagam v St George Bank [2016] NSWCA 145 and applied by Arbitrator Harris (as he then was) in Roberts v University of Sydney [2021] NSWWCC 25. The respondent conceded that both decisions supported the position that the commission enjoys jurisdiction.
Further, the respondent ultimately conceded that the second entitlement period would not expire until 19 October 2024 and therefore, if I was to make awards of weekly compensation in favor of the applicant, they would only be with respect to the first and second entitlement period in any event.

Incapacity

The respondent submitted that I would not be satisfied that the applicant had no current work capacity for a number of reasons.
Firstly, the applicant had a significant grievance with the respondent, and it was that grievance rather than any injury preventing him from returning to work. This grievance was associated with a return to work with the respondent specifically rather than a return to suitable employment within the meaning in s 32A of the 1987 Act more generally.
Secondly that I would not place any weight on the MAC of Medical Assessor Shen as the history obtained does not support the opinion expressed or the assessment by Dr Khan because Dr Khan had not been provided with a fair climate to express his opinion.
Thirdly, Dr Verma’s opinion as to incapacity was time limited and he had recommended capacity be re-assessed six months following the assessment, such that I could be satisfied it ought to be a closed period claim. The respondent submitted that the prognosis is a proper basis for make a factual finding on the issue.
Fourthly, having found the applicant had a current work capacity, that in assessing residual capacity I would have regard to his overall social functioning and mental state examinations. Where evidence is imprecise, I would attempt to aggregate what is known of the applicant’s capacity and form a best estimate of say capacity for 20 hours per week such that the award may be reduced by half.

FINDINGS AND REASONS

Jurisdictional issue

It is appropriate to deal firstly with a preliminary issue as to the Commission’s jurisdiction with respect to an award of compensation pursuant to s 38 of the 1987 Act.
The respondent made a formal submission that the Commission did not have jurisdiction to determine a claim for weekly compensation following the end of the second entitlement period and that any claim after 130 weeks pursuant to s 38 of the 1987 Act requires a determination by the insurer.
This relevance of the issue is limited, as when asked to confirm the dates of the relevant entitlement periods, the respondent conceded that any award would only be with respect to the first and second entitlement period.
So far as it is necessary for me to determine the issue, I am bound to follow the position of the Court of Appeal in Sabanayagam v St George Bank [2016] NSWCA 145 and I adopt the reasoning of Arbitrator Harris (as he then was) in Roberts v University of Sydney [2021] NSWWCC 25 at [46-67]. The Commission has the power to order weekly compensation pursuant to s 38 of the 1987 Act.

Incapacity

Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worked shall include a weekly payment during the incapacity.”
Section 34(1) of the 1987 Act limits the maximum weekly compensation available to $1,838.70 per week (subject to adjustment in accordance with the Act).
The provisions in ss 36 to 38 require consideration of whether a worker does or does not have ‘current work capacity’. Schedule 3 to the 1987 Act contains definitions for the purpose of weekly payments under Division 2 of Part 3.
The definitions of “current work capacity” and “no current work capacity” are contained in cl 9 of Schedule 3 of the 1987 Act:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) 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.”
In assessing the applicant’s capacity for suitable employment, s 32A of the 1987 Act establishes a number of matters which should be taken into consideration:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) 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), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
It is the applicant’s position that he has, and has had at all relevant times, no current work capacity, such that he would be entitled to an award of weekly compensation under ss 36 and 37 of the 1987 Act at the maximum statutory rate pursuant to s 34 for the entirety of the period claimed.
It is the respondent’s submission that I would not be satisfied, having regard to the totality of the evidence referred to in submissions and in particular the applicant’s demonstrated ability to engage in day-to-day activities within the community, other than employment, that the applicant has no current work capacity. Rather, that he does have a current work capacity and that any award should be reduced by the amount the applicant can earn in suitable employment having regard to the extent of his capacity.
I do not accept the respondent’s submission.
Having regard to the statement evidence of the applicant, the qualified medical evidence, the Medical Assessment Certificate of Medical Assessor Shen and the certificates of capacity of the applicant’s treating general practitioner, I do not accept the applicant has a current work capacity. I make that finding for the following reasons.
I do not accept that it is merely the applicant’s grievance with the respondent, as opposed to psychological incapacity, which is preventing him from returning to suitable employment.
The most contemporaneous assessment of the applicant’s capacity is the certificate of capacity issued by his general practitioner at Newcastle Family Practice dated 16 May 2024. The certificate of capacity provides significant detail, beyond what is normally provided by a treating general practitioner in a certificate of capacity. This is unsurprising where the applicant has been consulting the general practice with respect to his psychological injury since 16 June 2021. The general practitioner has provided additional notes following each consultation. Most recently on 16 May 2024 it was recorded:
“16.05.24- Had PIC (personal injury commission) appointment a few days ago. Still unfit for work. Poor concentration, tiredness, low mood. Not seeing psychologist anymore, declines referral. Employment was terminated Feb 2023. Taking 50mg desvenlafaxine daily. r/v if any further concerns”
Having provided these comments, clearly following a consultation with the applicant, the general practitioner provides the certification that the applicant has no current work capacity for any employment from 16 May 2024 to 16 August 2024. I accept that the general practitioner is well placed, as the applicant’s long term general practitioner, to express opinion as to the applicant’s capacity as at 16 May 2024 and I accept his opinion that the applicant has no capacity for employment. While the certificate does not record any notes between 20 April 2023 and 16 May 2014, there is no evidence of any change in circumstances during that period which would suggest there would have been any change in the general practitioner’s opinion.
I am not assisted by the opinions of Dr Roberts which are prefaced by his primary conclusion that the applicant did not suffer a psychological injury, a position not taken by either party before me.
Medical Assessor Shen was required to consider the extent of the applicant’s employability in providing a PIRS assessment to determine whole person impairment when providing his Medical Assessment Certificate dated 25 August 2023. He found the applicant totally incapable of employment.
While the MAC is conclusively presumed to be correct with respect to the degree of whole person impairment, it is otherwise only further evidence before the Commission. It is not binding on me with respect to causation or any issue other than the extent of the applicant’s permanent impairment (see Karzi v Toll Pty Ltd [2024] NSWCA 120). However, the opinion of Medical Assessor Shen is provided from the perspective of an independent examiner appointed by the Commission rather than an expert briefed by either party. Further it is much more recent to current time than the assessments of Dr Khan, Dr Verma and Dr Roberts. For these reasons I find his opinion persuasive.
The respondent submitted that I should not put any weight on Medical Assessor Shen’s opinion with respect to employability as it is at odds with the balance of his PIRS assessment where he finds relatively mild impairments with respect to other domains of psychological functioning and therefore the factual basis for his assessment with respect to employability is not made out (see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305). The respondent referred to the applicant’s ability to undertake activities without a support person, to interact with strangers and the time away from home taken to play 18 holes as golf as being analogous with the physiological functioning required to undertake at least part-time white collar work of some sort, such that the assessment of employability by Medical Assessor Shen is unsupported by his earlier analysis. The respondent also submits that Medical Assessor Shen has taken the applicant at his word and accepted the opinion of
Dr Khan, that that he has not worked since his injury and that he is no longer himself.
The assessment of Medical Assessor Shen is detailed, and he had available to him the totality of the evidence attached to the Application to Resolve Dispute and Reply. This evidence, including the various statements by the applicant as to his functional capacity in various domains as well as the records of the general practitioner had been considered. Medical Assessor Shen noted that there were some inconsistencies in the assessment, “including the contrasting accounts he gave about the factors towards his depression in 2019 against the account from his GP’s clinical notes” (see page 5 of MAC). Reading the MAC as a whole, Medical Assessor Shen did not simply take the history provided by the applicant at his word. The resulting assessment was not otherwise generous or beneficial to the applicant.
The respondent’s submission that by going out without a support person, interacting with strangers and playing golf that the applicant is demonstrating the necessary psychological capacity for employment is misguided. It fails to consider the level of concentration required, even in basic roles and the consistency and responsibility inherent in any employment. Medical Assessor Shen records that the applicant’s concentration ‘has been up and down, and he has to make a list on his notebook to stick to things’. This in part forms the basis for Medical Assessor Shen’s assessment that the applicant had a moderate impairment of concentration.
For these reasons, I consider the assessment of Medical Assessor Shen provides persuasive evidence with respect to the applicant’s functional capacity in various domains, including reduced concentration and lack of capacity for employability.
The respondent submitted that I could not place weight on the assessment of Dr Khan, partly because he was not provided a fair climate to provide an opinion due to the limited history provided to him by the applicant, including with respect to the applicant’s premorbid personality and prior psychological treatment. As such the opinion does not comply with the principles in Paric v John Holland Constructions Pty Ltd [1985] HCA 58. The respondent also submitted that Dr Khan had been misdirected when asked about whether the applicant could return to “pre-injury employment” rather than whether he had capacity for any employment at all.
While the question posed to Dr Khan is imperfect, Dr Khan’s response demonstrates that the reasons the applicant could not return to his pre-injury employment as being “due to the ongoing impact of the subject injury on his mood regulation, motivation, energy, attention, concentration, memory, ability to tolerate stress, coping mechanisms, self-confidence, self-esteem, self-identity and trust in interpersonal relationships”. These various issues relate to the general psychological resilience required in any employment, not just the applicant’s pre-injury employment.
Dr Khan assessed the applicant on 28 September 2022 and using his clinical judgment having the benefit of that assessment and the material with which he was briefed, formed the opinion that the applicant was unfit for work. This opinion is consistent with the majority of evidence from that time. Further, while relevant to the question of injury, which is not in dispute, the history with respect to the applicant’s prior psychological conditions and treatment is of limited relevance to the issue of capacity at the time Dr Khan assessed the applicant. This is particularly so given the records of Ms Moore which indicate the applicant had been discharged from her services following the issues experienced in 2019.

For these reasons I accept the opinion of Dr Khan with respect to incapacity and the applicant’s likely prognosis in this regard, and give the opinion greater weight than I might otherwise, due to its consistency with the other available evidence.
I do not accept the respondent’s submission that Dr Verma’s opinion that the applicant was totally unfit (as at August 2022) for at least the next six months but may be fit for suitable employment thereafter as being evidence of ongoing capacity. Dr Verma was clear in his opinion that it would be appropriate to have a further review in six months time. This is about the time the applicant saw Dr Shen who assessed the applicant as being totally impaired in the domain of employability.
The six-month mark would have also been about the time that the applicant saw his general practitioner on 20 April 2023 who noted at that time “ongoing depression and poor sleep. Too unwell to work. Employment was terminated a few months ago…”.
While I accept that an opinion expressed as to prognosis may form a basis for making a factual finding as to capacity, in these circumstances any future prediction as to capacity made by Dr Verma was not made out to have eventuated when regard is had to the subsequent evidence.
In addition to the expert medical evidence and the evidence of treatment providers the respondent submitted that I should consider a number of additional issues, which it said supported the position that the applicant has a current work capacity and opportunities for suitable employment.
The respondent submitted I should give consideration to the applicant’s mental state examination when assessed by Dr Modem. The respondent submitted that much of what was observed by Dr Modem was consistent with suitability for white collar employment including that the applicant presented as well-groomed and clean shaven in clean casual clothes, was able to initiate and maintained eye contact, communicate with coherent speech. The respondent submitted that the applicant’s mood may fluctuate up and down it does not, in a functional way, diminish capacity. The respondent submitted that if the applicant can have such an interaction with a doctor why can’t he have that quality interaction with a supervisor.
I do not accept that the interaction between an employer or colleague in the context of an employment relationship is analogous with a consultation with a trained doctor and mental health practitioner with whom the applicant was to have a therapeutic, confidential, relationship. It does not demonstrate a capacity for employment.
The respondent also submitted I would give consideration to the applicant’s ability to walk his dog, play with his grandchild and play scrabble as indicative of a current capacity for employment. In so far as the respondent was submitting that the applicant could work as a dog walker because he walks his own dog, I reject that submission. There is a significant difference between walking a family pet and the responsibility, interpersonal trust, concentration and consistency required to manage a dog walking business. With respect to playing with his grandchild this does not appear to be something he undertakes alone and the evidence was that he attended on his grandchild with his wife as his wife did not want to leave him alone. With respect to playing scrabble, it appears from the applicant’s statement evidence that it is something that he does to pass the time. There is no evidence as to how well he plays, for what period of time or whether he plays alone or with someone else. I do not consider anything can be read into these activities which would satisfy me that they demonstrate a capacity for employment.
Having considered the totality of the evidence and the submissions of the parties, I am satisfied the applicant has had no current work capacity since 23 April 2022 to the present time.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 326

21 June 2024