Lelov v Blacktown City Council
[2024] NSWPIC 91
•28 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lelov v Blacktown City Council [2024] NSWPIC 91 |
| APPLICANT: | Tony Lelov |
RESPONDENT: | Blacktown City Council |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 28 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation; causation; degree of incapacity; Held – academic vocational assessment not capable of reality testing in the labour market; the evidence on balance discloses the applicant remains totally incapacitated for employment; respondent ordered to pay the applicant weekly compensation pursuant to section 37 and section 38. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has had no current work capacity from 21 December 2022. 2. That the pre-injury average weekly earnings figure (PIAWE) is $1,051.88. 3. The respondent is to pay weekly compensation to the applicant pursuant to ss 37 and 38 of the Workers Compensation Act 1987 (80% of the PIAWE) as indexed from 21 December 2022. |
STATEMENT OF REASONS
BACKGROUND
This matter has a long history in the Personal Injury Commission, (the Commission), and in the interests of brevity will not be slavishly repeated.
The only issue that remains in dispute in the present proceedings, is Tony Lelov’s (the applicant) claim for weekly benefits for the balance of the s 37 entitlement period of the Workers Compensation Act 1987 (the Act) (21 December 2022 and 28 March 2023) and then weekly compensation claimed under s 38 of the Act, commencing from 29 March 2023. The applicant claims total incapacity.
Despite obtaining an Award for weekly compensation in proceedings commenced in the Commission previously,[1] Blacktown City Council (the respondent), following further independent medical review denied liability for ongoing weekly payments (with effect from 20 December 2022) maintaining incapacity was no longer related to workplace injury and/or in the alternative relied on a vocational assessment dated 12 October 2022 which identified suitable roles which would remunerate the applicant equal to or more than his pre-injury average weekly earnings (PIAWE).
[1] Certificate of Determination – Matter Number W5468/21 where Member Isaksen determined the applicant suffered injury in the course of his employment and had no work capacity from 3 September 2020.
The current proceedings also claimed s 66 lump sum compensation, ultimately determined by Medical Assessor Dr Suman on 12 September who in his Medical Assessment Certificate assessed the applicant as having an 18% whole person impairment (WPI) arising out of workplace injury. This was dealt with via consent orders.
At the conciliation/arbitration the applicant was represented by Mr Adhikary of counsel instructed by Mr Gauci. The respondent was represented by Mr Saul of counsel instructed by Ms Palamara. Conciliation was exhausted and the parties sought a determination on the capacity issue.
The law relevant to this application is found in the Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD) filed by the applicant on 26 May 2023;
(d) AALD filed by the respondent dated 5 June 2023 and 19 January 2024, and
(e) Medical Assessment Certificate Dr Suman dated 12 September 2023.
Oral evidence
No oral evidence was called.
FINDINGS AND REASONS
Injury has been determined and findings remain undisturbed. These reasons will focus on the applicant’s capacity as claimed.
Applicant’s evidence
Two statements have been provided by the applicant. The most recent statement dated 1 May 2023 confirms day to day struggles relating to concentration, social relationships, fear of returning to the workforce, lack of motivation, lack of self care, estrangement from family and social networks, suicidal thoughts and significantly a change in his treatment regime including Nortriptyline, Lamotrigine and Propranolol daily. The statements discuss the long course of treatment which has largely been ineffective ultimately resulting in inpatient ‘magnetic therapy’ treatment for depression at the Northside Clinic for almost one month in September 2022.
Dr Canaris, consultant psychiatrist
In a report dated 21 October 2022[2], with regards to capacity, Dr Canaris concluded (unedited)
“Mr Tony Lelov continues to be unwell despite a recent hospitalisation although this had resulted in significant improvement. He remains an anxious man leading an unstructured existence who is much distressed by the loss of his relationship with his children. He is isolated and socially withdrawn and his relationship with his mother is fraught. His concentration is poor as is his self-care and he has not been able to work. …
He is presently not working and has only recently found more stable accommodation. He would not be well enough to work in his current situation though in the long run might be able to do very limited casual work as indicated in my assessment of whole person impairment below
Employability/Adaptability Class 4.
I elicited the following history:
He is not working saying, ‘What hurts the most is that the guys that put in those false allegations on me is still working… this guy ruined my life…’. He talked of his fear that he might encounter something similar in another workplace. He has been wondering about perhaps undertaking a course in shiatsu massage explaining that he had been a massage therapist in his younger days. Otherwise, he has thought of getting a van or a ute and try and do lawns and hedging and does not know whether he would be up to the task. Comment: I think he would struggle in open labour market employment as he would have major problems working alongside other people. However, people such as your client are able once their situations are more stable for example with regard to accommodation to undertake very limited self-employment on a casual basis.”
[2] Folio 13 of the ARD.
Dr Sajeeva Jayalath, treating psychiatrist
In a report dated 6 March 2021,[3] Dr Jayalath reported that applicant at that stage had a capacity to respond to authority, work independently, concentrate, work in a team and communicate with others. He recommended a phased return to work over six to eight weeks.
[3] Folio 20 of the Reply.
On 5 April 2022,[4] Dr Jayalath reported (unedited):
“I have known Mr Lelov for over 4 years. He suffers from Bipolar Affective Disorder type 2. His mental health symptoms are currently stable on medications. He is treated with Lamotrigine 50mg bd. He suffers from significant functional impairment and has a high risk of relapsing if he is to return to work”.
[4] Folio 262 of the ARD.
In his report dated 29 July 2022,[5] Dr Jayalath reported:
“He is not fit enough for employment at present and this status is likely to remain for the next 2 years”.
[5] Folio 110 of the ARD.
On 1 February 2023,[6] Dr Jayalath reported the applicant’s moods continue to fluctuate and recorded a complaint of tremors likely to be secondary to Nortriptyline.
[6] Folio 249 of the ARD
Northside Clinic – admission notes
The applicant was admitted voluntarily to the Northside Clinic on 1 September 2022 and discharged on 29 September 2022. The records show fluctuating symptoms and treatment regime.[7]
[7] Folios 94-247 of the ARD.
Dr Abhishek Karavadra – general practitioner
A certificate of capacity[8] issued on 8 November 2022 certified the applicant as having no capacity for work between 8 November 2022 to 8 February 2023.
Respondent’s evidence
[8] Folios 264-265 of the ARD.
Dr Doron Samuell
Dr Samuell in his report dated 27 November 2020[9] considered prognosis promising and the applicant was fit to perform pre-injury duties.
[9] Folio 32 of the Reply.
On 28 November 2022, following further review of the applicant, Dr Samuell concluded (unedited)
“… he has not worked now for a considerable period and is separated from his former wife and children. Although he downplayed the impact of the social factors, in my opinion, they highly predict a poor outcome. His underlying condition should be characterised by relapses and remissions on an indefinite basis...
In my opinion, the work related condition no longer exists. Mr Lelov is suffering from a Bipolar Affective Disorder. The workplace issues aggravated that underlying condition. The evidence that the aggravation is ongoing is not strong, despite Mr Lelov’s belief to the contrary…
At the time that I assessed him, if he has accurately represented his difficulties, then he is totally unfit to work
One could reasonably expect a remission of his Bipolar condition, however, I cannot reliably predict when that may be. When he does have a remission, he could return to work
In my opinion, his incapacity is a reflection of his pre-existing condition.”
Sebastian Bass, vocational assessor
In a report dated 12 October 2022 following one interview with the applicant and reference to the report of Dr Jayalath dated 6 March 2021[10] only, Mr Bass concluded the applicant was fit to work as a garden and nursery labourer, courier, delivery driver, transport and dispatch clerk, purchasing clerk, driver, product assembler and packer. Each of these vocations were said to have remuneration greater than PIAWE.
[10] Folios 41 to 50 Reply
Dr John Roberts, consultant psychiatrist
On 26 May 2023, Dr Roberts reported (unedited)
“In terms of my assessment of the above, Mr Lelov suffers from a complex history of psychopathology interwoven with his physical health, of a Bipolar II disorder.
The probability of him being able to maintain employment is as previously mentioned between 40 and 60% at best.
Mr Lelov’s employment would be potentially interrupted at future dates by virtue of mood disturbances, arising in the context of a Bipolar II disorder, namely characterised by periods of depression and/or euphoria with a comprise in functionality which is characteristic of the Bipolar condition.
In regard to Mr Lelov’s present capacity for employment, I have commented on his statement that he was instructed not to look for work, since such may impact upon his claim.
I note that he intends to return to work and that I reiterate would indicate that he has not reached stability and that maximum medical improvement has not been reached.
I believe that Mr Lelov does have a future capacity for employment but such would be by virtue of his underlying condition, potentially interrupted employment since the psychiatric condition from which he suffers is characterised by spontaneous remissions and exacerbations of his psychopathology. The potential impact of his chronic Lymphatic leukaemia in terms of its physical impact is a matter for a haematologist/oncologist to comment upon…
I again returned to discussing employment and note that Mr Lelov indicated to me that he had looked for work but had been told by his barristers and solicitors that if he looked for work and was successful such would jeopardise his claim. He commented that he did not consider himself capable for work for two years.”
Medical Assessment Certificate – Dr Suman[11]
[11] Medical Assessment Certificate – Personal Injury Commission dated 12 September 2023.
As indicated above, Dr Suman assessed a 22% WPI but after the s 323 deduction of 20% (due to the pre-existing bipolar diagnosis), determined an 18% WPI arising out of employment injury.
The PIRS[12] is relevant in this matter and Dr Suman assigned impairment after establishing the applicant fell into the following classes (unedited)
[12] Psychiatric impairment rating scale
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Mr Lelov is living independently at this studio apartment in Northmead. He takes a shower every 2-3 days. He told me he is struggling with his energy and motivation daily. He is attending to activities of daily living and household chores although does struggle with it on some days
Social and recreational activities
3
Mr Lelov told me “I am isolating myself”. He told me that apart from 1 close friend, he does not like to associate with anyone. He avoids going to any social events. He feels anxious in any social setting
Travel
2
Mr Lelov avoids driving although is able to drive locally. He is able to shop locally although limits such trips as much as possible
Social Functioning
3
Mr Lelov told me that he has lost touch with most of his friends. He provided care for his mum in early 2020.He separated from his partner in 2019. Couple completed divorce in 2023
Concentration, persistence and pace
3
Mr Lelov is struggling with his concentration. He does struggle with his motivation and energy daily. He is avoiding any tasks requiring sustained concentration “I get flustered after a short while and tend to give up the task”.
Employability
5
Mr Lelov will not be able to take on any work commitments considering his ongoing struggle with complex mental health issues.
Submissions
Applicant’s submissions
When summarised these were:
i) Mr Adhikary submits that the medical evidence is consistent and uncontradicted. He submits, following Watts v Rake[13] and Purkessv Crittendon,[14] the respondent has the onus of showing there was another cause for the incapacity which it has failed to do;
ii) the respondent relies on the reports of Drs Roberts and Samuell and Mr Bass none of which take a history of the applicant’s significant inpatient stay at Northside Private Hospital and such reports are predicated on an assumption that the applicant has recovered from workplace aggravation, which is against the evidence as a whole and more specifically the findings of the Medical Assessor which are binding as to workplace apportionment;
iii) overall, the work capacity decision should be set aside with a finding that the applicant has no current work capacity and that such incapacity is likely to continue indefinitely;
iv) as to the applicant’s representations about work capacity, especially to Dr Roberts, it is not for the applicant to decide the extent of capacity for work but a matter for medical opinion. I was referred to Boral Recycling Pty Ltd v Figueira[15] especially in cases relating to incapacity arising from psychological injury, and
v) there is no evidence by the respondent to contradict the findings of the Medical Assessment Certificate.
Respondent’s submissions
[13] Watts v Rake [1960] 58 (Watts).
[14] Purkess v Crittendon [1965] HCA 34 (Purkess).
[15] [2014] NSWWCCPD 41.
25. The submissions of Mr Saul when summarised were:
(a) the Medical Assessment Certificate is only binding with regards impairment and specifically WPI;
(b) the applicant’s evidence both lay and medical is out of date, the applicant had an opportunity to provide an updated statement and declined the invitation;
(c) the comments of Dr Roberts must be considered, particularly when the applicant informed him that looking for work could jeopardise his claim;
(d) the vocational assessment is sound and the assessor, was not obliged to take a medical history, rather assess the applicant’s suitability for employment, which he has done with reference to the applicant’s work history and statements;
(e) the applicant could work full time in the vocations nominated by the work capacity/vocational assessment and that such work would provide a remuneration greater than PIAWE;
(f) to succeed with the claim the applicant would have to demonstrate that he has no current work capacity and that cannot be so when referenced to s 32A of the Act as the vocational assessment identified the applicant has qualifications, work experience and ability to perform various blue collar occupations, and
(g) there is no dispute with respect to PIAWE and this was determined in previous proceedings before the Commission (differently constituted).
Application of the law
As indicated, the law relevant to this application is found in the Act and specifically ss 32A, 33, 37 and 38 of the Act.
Section 33 of the Act providers that if total or partial incapacity for work results from an injury, then compensation shall include a weekly payment during any incapacity.
Section 37 allows for compensation to be paid for incapacity following injury for a period of 14-130 weeks at the rate of 80% of the PIAWE where there is no current work capacity.
Section 38 allows for compensation to be paid after 130 weeks provided the applicant has no current work capacity (as in this case the applicant has not returned to work and is not a worker with high or highest needs).
The definition of “no current work capacity” is found in Item 9 of Schedule 3 of the Act and states that the applicant has no current work capacity if there is a present inability arising from an injury such that the worker is not able to work, either in pre injury employment or suitable employment.
Suitable employment is defined in s 32A of the Act as employment for which the worker is currently suited having regard to matters such as the incapacity; age, education, skills and work experience and regardless of availability of such work amongst other factors.
Here the most recent evidence from the applicant’s treating psychiatrist stated that he was unfit for work for a period of at least two years. A Certificate of Capacity certified the applicant as totally incapacitated between 8 November 2022 to 8 February 2023. There are no further medical certificates as the claim was declined and s 44B of the Act does not require the applicant to continue to furnish certificates in such circumstances. Dr Samuell in November 2022 indicated that if the applicant’s version of events was to be accepted then he was unfit for work. Dr Roberts expressed some concerns about the applicant’s motivation in light of legal advice that return to work could jeopardise the claim but much like Dr Samuell considered the applicant would experience relapses and remissions on an indefinite basis. Both Dr Roberts and Dr Samuell considered that the effects of any workplace aggravation ceased, a finding that has now been made redundant by conclusions of the Medical Assessor, but in any event confirm that capacity for work is compromised with Dr Robert’s reporting that the probability of “maintaining” employment is 40-60% at best.
Dr Suman determined the applicant had an 18% WPI after the s 323 deduction. The respondent submits the certificate is binding only in regard to impairment and not incapacity. This is true, but in reaching a conclusion on impairment, the AMA 5 Guides require a specialist to assess the applicant’s disability/impairment in classes. Once those classes are graded, they are added, a median score is obtained and ultimately WPI is assessed. The classes are specific and relate to self care and personal hygiene; social and recreational activities; travel; social functioning; concentration persistence and pace and employability. Comments on these matters cannot be disregarded and whilst only the impairment assessment is binding, that impairment assessment can only be reached after considering the impact on daily living by assessing the above key areas into classes. So whilst the submissions about the binding nature of the certificate are understood, I must appreciate the global assessment of the condition before accepting the binding impairment.
On this point, with regards to suitable employment, the respondent relies on Mr Bass, a vocational assessor. I found his report to be suboptimal and academic, with little appreciation of the true nature of work in society. Whilst he may have had more documents before him he refers to only one report of Dr Jayalath dated 6 March 2021 which optimistically forecasted a return to work. Mr Bass appears not to have made any enquiry in relation to the progression of the condition in the intervening 19 months before his assessment and specifically the significant relapse resulting in inpatient at the Northside Clinic. No inquiry was made into the applicants medication or treatment regime, such matters being significant when assessing return to work as medications in this type of diagnosis can impact on the operation of machinery and vehicles. Mr Bass suggested a number of vocations but does not go further to explain why the applicant might be fit for those vocations with direct reference to his psychological condition, rather seems to suggest as the applicant had engaged in similar occupations prior to his injury, that he must have the capacity to engage in such duties. Certainly he may do so from a physical point of view, but this claim is a psychological injury and the assessor has failed to appreciate this globally when making conclusions. I further find that the opinion of Mr Bass is ipse dixit, devoid of reasoning with no real reference to the applicant’s certified capacity at the time and overall diagnosis, particularly given that he had only just recently been discharged from inpatient treatment. The report fails to explore the impact of any medications on day-to-day functioning, particularly with regards to motivation, the operation of machinery or whether they cause drowsiness, delayed response and did not comment on the tremor which was documented in the medical evidence. The report offers no clear insight as to why the nominated vocations were suitable with direct reference to the applicant’s diagnosis and ongoing treatment. The report is well written from a theoretical point of view, it however fails on a practical basis. I felt that the report was ‘template based’ and not personalised to the applicant’s diagnosis, prognosis and treatment. I conclude the vocational recommendations suggested are merely academic and not practical.
The respondent submitted that the vocational options identified were not mentally taxing. This may be so, however, the most the medical assessment certificate suggests that the applicant can only drive locally and isolates himself. His concentration, persistence and pace are impaired. It follows occupations such as delivery driver, transport and dispatch clerk, purchasing clerk, driver, product assembler and packer, are unsuitable given that each of these occupations require travel, concentration and persistence and pace. This leaves the vocations of gardening and nursery labourer however the assessor did not consider the impact of the applicants medications, fear of socializing and impairment in social functioning and struggles with concentration, all necessary for such work particularly if the use of any machinery or electrical equipment is involved or if the work was required to be done within a timeframe.
It beggars belief that the respondent accepted the report of Mr Bass without further enquiry. The respondent has a large workforce consisting of drivers, labourers, gardeners and clerks who to various degrees interface with the public and represent it in all day-to-day activities. The respondent would no doubt have in house occupational health and safety policies ensuring its workforce is unaffected by medications or unstable medical conditions that have the potential to increase risk to both staff and the public from a risk management lens. I would have also thought that it would be prudent to have the vocational assessment validated by either the treating doctor or psychiatrist or even the in house risk management/safety team. Had this been done, perhaps a better global case management strategy could have been adopted and the lack of attention to detail by the vocational assessor could have been reality tested and corrected at first instance. The respondent submitted that it is not the role of a vocational assessor to delve into the medical history. I disagree. Without taking a full and proper medical history and especially the well documented side effects of the medication, coupled with an understanding of relapses and remissions, any suggestion on vocational options are academic, null and void as they cannot be practically applied in the everyday workforce.
The applicant has throughout the course of this application and previous applications expressed an interest in returning to some form of work, either mowing lawns, barista type work and even expressed an interest in massage. Dr Roberts reported the applicant has been advised to avoid work because of the impact on his claim. As in Figueira, I place little weight on these statements given the applicant’s documented impairment in the areas of travel, social functioning and employability. I did however note that Dr Canaris on 21 October 2022 reported “However, people such as your client are able once their situations are more stable for example with regard to accommodation to undertake very limited self-employment on a casual basis”, however this is a generalised statement not specifically directed to the applicant’s circumstances.
I acknowledge the opinions of Dr Samuell and Dr Roberts who overall assessed the applicant’s incapacity as being predominantly unrelated to his employment, which is inconsistent with the previous Certificate of Determination and the most recent medical evidence available. Both specialists reported that the applicant was unfit on the basis of his presentation and that the condition would be subject to relapses and remissions on an indefinite basis.
Dr Jayalath reported in July 2022 that the applicant in his view was unfit for employment for at least a period of two years. This reported incapacity is consistent with Dr Suman’s assessment on employability but also in sync with the findings of Dr Roberts and Dr Samuell.
In the ordinary course of events, I would slavishly analyse the case law concerning suitable employment. However, this is unnecessary as I find on the basis of the evidence that the applicant is totally incapacitated and so qualifies for the weekly benefits claimed pursuant to ss 37 and 38 of the Act.
SUMMARY
For the reasons above, I find the applicant has been and remains totally incapacitated for employment. I accordingly make the orders set out on page 1 of the Certificate of Determination.
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