Leitze v Employers Mutual Limited
[2024] NSWPIC 45
•7 February 2024
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Leitze v Employers Mutual Limited [2024] NSWPIC 45 |
| APPLICANT: | Scott Leitze |
| RESPONDENT: | Employers Mutual Limited |
| PRESIDENT’S DELEGATE: | Rachel Brittliff |
| DATE OF DECISION: | 7 February 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the worker sustained a psychological injury while working as a disability support worker; the respondent determined that the worker could return to work for 18 hours per week as an aged and disability carer; the respondent did not provide sufficient evidence that there are roles in the labour market which are consistent with the worker’s incapacity; Held – the role of aged and disability carer was not suitable employment for the worker; the worker is entitled to payments of weekly compensation under section 37. |
| ORDERS MADE: | The Commission determines: 1. The applicant has no current work capacity. 2. The respondent is to calculate the applicant’s entitlement to weekly payments of compensation in accordance with s 37 of the Workers Compensation Act 1987. |
BACKGROUND
Scott Leitze (the applicant) was employed by Sunnyfield (the respondent) as a disability support worker in a supported independent living facility.
The applicant was assaulted by a resident of the facility on 17 October 2022 and again on 28 January 2023. The deemed date of injury is 28 January 2023.
The applicant did not return to work with the respondent and commenced receiving weekly payments of compensation under s 36 of the Workers Compensation Act 1987 (the 1987 Act).
After the first 13 weeks of payments made under s 36 of the 1987 Act, the applicant’s entitlement to weekly payments was calculated in accordance with s 37 of the 1987 Act.
On 26 September 2023, the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent determined that the applicant had capacity to work in suitable employment as an aged and disabled carer and was able to earn $1,386 per week in suitable employment.
The applicant applied for an internal review of the respondent’s decision. On 11 October 2023 the respondent issued a notice of the outcome of its review in which it maintained the original findings.
The applicant made an application to the Personal Injury Commission (Commission) for a direction for interim payment of weekly payments under s 297 of the 1998 Act.
PROCEDURE BEFORE THE COMMISSION
The parties attended a remote conference before me, as a delegate of the President, on 24 January 2024.
The worker was represented by Mr Stuart Moffatt of counsel and the respondent was represented by Ms Sahra Magan.
The parties were unable to reach an agreed resolution of the dispute.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them.
The parties each made submissions in writing.
ISSUE FOR DETERMINATION
The issues for determination are:
(a) whether the worker has current work capacity in accordance with the definition under cl 9 of Schedule 3 of the 1987 Act;
(b) whether the role of aged and disability carer is suitable employment for the applicant, and
(c) the amount the applicant is able to earn in suitable employment.
DOCUMENTS
I considered the Application and attachments when making my decision.
The respondent and applicant both made applications to submit late documents. I will deal with the applications before proceeding to the substantive issues in the matter.
Late documents
Applications to Admit Late Documents must be considered in accordance with rule 67(4)(b) of the Personal Injury Commission Rules 2021 (Rules). To admit late documents, I must be satisfied that it is in the interests of justice to do so and the party seeking to lodge the documents sought consent.
There is additional guidance under Procedural Direction PIC-3 (PIC-3) which I have also considered when making my determination.
Respondent’s late documents
The respondent was required to lodge its reply to the application for expedited assessment no later than three days before the first teleconference proceedings in accordance with rule 79(4) of the Rules.
The first teleconference proceedings were conducted on 24 January 2024. The respondent lodged a reply to the application on 22 January 2024 accompanied by an Application to Admit Late Documents.
The respondent also submitted a supplementary report prepared by Dr Mohsin Chowdry on 22 January 2022 with a separate application to admit late documents. I will deal with both applications together.
The respondent did not request the applicant’s consent to admit the documents; however, the applicant was aware of the application and provided written submissions objecting to the admission of the documents. I have considered the applicant’s submissions.
I am satisfied that it is necessary in the interests of justice to allow the respondent’s Application to Admit Late Documents. I am satisfied that the interests of justice are best served where a decision maker who is to determine a matter has all relevant information about the issues in dispute before them to make a correct and preferable decision.
The applicant objected to the admission of the documents; however, he did not give any reasons that the late admission may cause prejudice and had the opportunity to respond to the contents of the documents.
The respondent’s Application/s to Admit Late Documents are accepted.
Applicant’s late documents
The applicant applied to admit late documents on 18 January 2024.
The applicant did not request the respondent consent to admit the documents; however, the respondent was aware of the application and provided written submissions objecting to the admission of the documents. I have considered the respondent’s submissions.
I am satisfied that it is necessary in the interests of justice to allow the applicant’s Application to Admit Late Documents. I am satisfied that the interests of justice are best served where a decision maker who is to determine a matter has all relevant information about the issues in dispute before them to make a correct and preferable decision.
The respondent objected to the admission of the documents; however, it did not give any reasons that the late admission may cause prejudice and had the opportunity to respond to the contents of the documents.
The applicant’s Application/s to Admit Late Documents are accepted.
SUBMISSIONS
The parties each made written submissions.
Applicant’s submissions
The applicant relies on a report prepared by Dr Richa Rastogi which indicates he has no current work capacity.
Respondent’s submissions
The respondent submits:
(a) the medical evidence indicates the applicant has capacity for employment as an aged and disability carer;
(b) the applicant has capacity to work between 8 and 18 hours per week in suitable employment;
(c) work as an aged and disability support worker is real work in the labour market that supports the applicant’s medical restrictions, and
(d) the applicant is able to earn $616 in suitable employment per week.
EVIDENCE
I have considered the evidence provided in the application for expedited assessment, the applicant’s late documents and the respondent’s late documents.
REASONS
Legislation
A dispute concerning work capacity requires consideration of whether a worker has current work capacity or no current work capacity.
Clause 9 of Schedule 3 of the 1987 Act sets out the meaning of “current work capacity” and “no current work capacity” as follows:
“(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 any 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.”
The term “suitable employment” is defined in s 32A of the 1987 Act as follows:
“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.”
Nature of incapacity
Dr Abdur Rashid Alamgir
Dr Abdur Rashid Alamgir, the applicant’s general practitioner (GP), sent a referral letter to Overcoming PTSD dated 24 February 2023. The referral sets out the history of the applicant’s injury and requests support for the applicant.
Dr Alamgir issued certificates of capacity for the applicant from May 2023 to January 2024 as follows:
(a) 11 May to 5 July 2023 – capacity to work four hours per day, two days per week in a shared living facility, not at his previous place of work;
(b) 25 September to 8 October 2023 – capacity to work eight hours per day, three days per week in a shared living facility, not at his previous place of work;
(c) 9 October to 4 December 2023 – no current work capacity, and
(d) 5 December 2023 to 29 January 2024 – capacity to work four hours per day, two days per week in a shared living facility, not at his previous place of work.
Dr Alamgir wrote to Dr Richa Rastogi dated 22 October 2023. He referred the applicant for an opinion and management of post-traumatic stress disorder as the result of the workplace injury.
There is a clinical note from Dr Alamgir dated 17 November 2023 which states that the applicant suffers from insomnia and has recently been prescribed with medicinal cannabis for sleep.
Leanne Stynes
Leanne Stynes, psychologist, sent a progress report to the respondent dated 8 May 2023. Ms Stynes recommended a graduated return to work for the applicant beginning with two shifts per week. She also recommended that the applicant return to a different work site.
Dr Mohsin Chaudhry
Dr Mohsin Chaudhry, GP and injury management consultant examined the applicant and issued a report dated 28 November 2023. Dr Chaudhry made the following findings about the applicant’s capacity for a return to work:
(a) able to return to work full time;
(b) should return to a different worksite, and
(c) should not have contact with residents with a known history of aggression or violence.
There is a supplementary report from Dr Chaudhry dated 17 January 2024. Dr Chaudhry reviewed the applicant’s file from the respondent but did not re-examine him, nor did he speak to the applicant’s GP.
Dr Chaudhry reiterated his previous findings and indicated that unless there had been a significant change since his review of the applicant in November, there should be no reason for him having a reduced capacity for employment during that time.
Dr Richa Rastogi
Dr Rastogi, consultant psychiatrist, examined the applicant for the purpose of providing an independent medical examination report. Dr Rastogi issued the report on 8 January 2024. Dr Rastogi provided the following opinion on the applicant’s current work capacity:
“He has no capacity to work currently. He may be able to return to work in restricted duties and hours in graded return to work with a new employer in foreseeable future with ongoing treatment. He needs treatment for six months and then be considered for work capacity. He has restriction of not working in a highly stressful and confronting environment with increased demands and pressures and will need gradual assimilation. He should be reintegrated gradually, and he is considering to start [sic] online training.”
Dr Nadeem Anwar
The applicant was examined by Dr Nadeem Anwar, psychiatrist, who produced an independent medical examination report dated 16 June 2023. Dr Anwar made the following recommendations for a return-to-work plan for the applicant:
(a) do not work with potentially aggressive clients for three to six months;
(b) can be assessed by his GP and psychologist for a potential return to his pre-injury role after three to six months;
(c) suggests a gradual return to work starting with four to six hours two days a week, then gradually increase to pre-injury hours;
(d) do not work nights for one month, then commence subject to GP review;
(e) meet with immediate manager on a weekly basis;
(f) see GP on a weekly basis for a month, then fortnightly until returning to pre-injury duties, and
(g) see a psychologist on a fortnightly basis for three months.
Finding on the nature of the applicant’s incapacity
The evidence indicates that the applicant has an incapacity to return to the site of his pre-injury employment at his pre-injury hours. This view is supported by each medical practitioner and psychologist except Dr Chaudry who believed the applicant could return to full-time employment at a different worksite to the one where his injury occurred.
I have considered Dr Chaudry’s opinion, however, I have given it less weight than the other reports because Dr Chaudry was the only practitioner who was satisfied that the applicant could work full time.
Doctors Alamgir and Anwar believed the applicant should undertake a graduated return to work, commencing with four hours a day, two days a week. He also noted that the applicant should not work with potentially aggressive clients for three to six months.
Dr Anwar set out a plan for increasing the applicant’s hours of work over the course of several months with supervision from Dr Alamgir and Ms Stynes.
Ms Stynes’s report also supports a graduated return to work.
Dr Rastogi considered the applicant had no current work capacity but believed the applicant may be able to return to work in the foreseeable future in a different workplace. He indicated the applicant should not be placed in a stressful and confronting environment.
I have determined that the applicant has some capacity for employment as follows:
(a) work four hours a day, two days a week;
(b) work at a different site with the pre-injury employer or with a different employer, and
(c) avoid exposure to potentially aggressive clients for at least three months.
Work capacity
Age, skills and work experience
The applicant provided the following information in a personal statement which was lodged with the application for expedited assessment.
The applicant is 55-years-old. He has the following qualifications:
(a) Bachelor of Arts;
(b) certificate in customer engagement;
(c) PART course (predict, assess and respond to aggressive or challenging behaviour), and
(d) safety access rail corridor.
He has the following workplace skills:
(a) communication in the workplace;
(b) customer engagement;
(c) health and safety;
(d) service delivery;
(e) product and service knowledge;
(f) customer engagement;
(g) e-learning;
(h) use of multiple information systems;
(i) disability support worker training;
(j) medication training;
(k) incident report writing;
(l) response team notification, and
(m) epilepsy training.
The applicant lists the following work experience:
(a) light rail driver;
(b) courier;
(c) customer service,
(d) disability service provider.
Occupational rehabilitation services and return to work plans
The respondent obtained a “vocational and labour market analysis” from Annabel Walsh, senior employment consultant at Benco. Ms Walsh determined that the role of an aged and disability carer was suitable employment for the applicant.
Ms Walsh conducted a labour market analysis in which she identified suitable employment for the applicant on the basis that he could work:
(a) six hours per day, three days per week;
(b) work in shared living (accommodation);
(c) weeks [sic] and weekday afternoons, and
(d) not work at the site of his pre-injury employment.
Ms Walsh contacted three employers about the role of age and disability carers in their organisations. Each of the employer contacts confirmed that work existed for six hours per day, three days per week.
Ms Walsh contacted Ample Life Care. The employer contact indicated the following role requirements:
(a) supporting the participants with their daily routines, including supervisory, and social support;
(b) maintaining accurate progress notes and incident reports during shifts, documenting;
(c) participant goals, achievements, and any issues that may arise;
(d) communicating effectively with participants, their families, and other support staff;
(e) adhering to health and safety guidelines and identifying and reporting any hazards or incidents to ensure a safe and healthy living environment for participants, and
(f) supporting participants in maintaining their independence and promoting their personal development by engaging them in community activities.
The second two employers reported similar requirements to those outlined by the representative from Ample Life Care.
Dr Alamgir approved a proposal put to him by rehabilitation services provider Benco, in which they proposed that the applicant could return to work as an aged and disabled carer for 18 hours per week. The document is dated 14 September 2023.
The respondent provided the applicant with a document titled “planning for your recovery” dated 14 November 2023. The plan identified the following responsibilities for achieving a recovery at work:
(a) Dr Alamgir – provide certificates of capacity, forward treatment referrals to the respondent and participate in medical case conferences;
(b) respondent – liaise with relevant parties, review injury management plan;
(c) Sunnyfield – provide suitable duties that are consistent with certificates of capacity and monitor suitable duties and workplace progress, and
(d) applicant – obtain certificates of capacity, make reasonable efforts to return to work and attend independent medical consultation with Dr Chaudry.
Ms Cassandra White, senior rehabilitation consultant for Rehab Management Pty Ltd, conducted a psychological workplace assessment for the applicant which is dated 7 December 2023. At the time Ms White prepared the report the applicant was certified as having no current work capacity by Dr Alamgir.
Following contact with Dr Alamgir, Ms White negotiated a change in the applicant’s certification such that Dr Alamgir issued a new certificate of capacity in which he certified that the applicant had capacity for some type of employment for working four hours per day, two days per week in a shared living facility, not at his previous place of work.
Finding on work capacity
Dr Alamgir considers the applicant would be able to return to work as an aged and disability carer. Other independent medical practitioners also believe that the applicant could return to employment in that work.
I am satisfied that the applicant could return to work as an aged care and disability carer within the parameters listed at paragraph 50 above.
None of the documents provided by the respondent establish that there is real work in the labour market for an aged and disability carer which can be undertaken for four hours per day, two days a week, in which the applicant would not be exposed to potentially aggressive clients.
I acknowledge that the definition of suitable employment does not require that the employment is generally available in the employment market. However, in accordance with the decision of Deputy President Bill Roche in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, proposed suitable employment must be real work, that is, it must exist in the employment market.
There is no evidence before me to suggest that work as an aged and disability carer which can be undertaken for eight hours per week and does not expose the applicant to potentially aggressive clients, is a real job that exists in the employment market.
Summary
Having regard to the relevant matters in s 32A of the 1987 Act and the definition of current work capacity and no current work capacity under cl 9 of Schedule 3 of the 1987 Act, I am not satisfied that the role of aged and disability carer is suitable employment for the applicant having regard to the specified factors under s 32 of the 1987 Act.
I am not satisfied that the applicant has current work capacity in accordance with the definition under cl 9 of Schedule 3 of the 1987 Act.
The respondent is to calculate the applicant’s entitlement to weekly payments of compensation from the date on which the applicant’s weekly payments of compensation changed in accordance with the s 78 notice and ongoing.
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