Newton v Goulburn Mulwaree Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Newton v Goulburn Mulwaree Council [2023] NSWPIC 178
APPLICANT:	Kylie Louise Newton
RESPONDENT:	Goulburn Mulwaree Council
Member:	Michael Moore
DATE OF DECISION:	21 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation; worker suffered an admitted psychological injury while working as the Business Manager Finance and Customer Service for the respondent; the only issue for determination was whether the applicant suffered from an ongoing incapacity from the psychological injury that would give her an entitlement to weekly compensation and if so the extent of such an entitlement; consideration of the law as expressed in the decisions in Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd and Ludowici v Cutri; applied Wollongong Nursing Home Pty Ltd v Dewar in finding position with respondent was not a “real job”; Held – work capacity decision set aside and award of weekly payments entered.
determinations made:

The Commission determines:

The work capacity decision made by the respondent on 1 December 2021 is set aside.
From 1 December 2021 to 7 January 2022 the applicant had no current work capacity as a consequence of the admitted injury received arising out of or in the course of her employment.
From 8 January 2022 to date the applicant had current work capacity to perform non-stressful rote clerical and administrative tasks as follows;
(a)    from 8 January 2022 to 20 January 2022 for four hours a day two days a week;
(b)    from 21 January 2022 to 12 May 2022 for two hours a day three days a week;
(c)    from 13 May 2022 to 9 June 2022 for three hours a day two days a week;
(d)    from 10 June 2022 to 19 August 2022 for four hours a day three days a week, and
(e)    from 20 August to date and continuing for six hours a day three days a week.

The Commission orders:

There will be an award that the respondent pay the applicant weekly compensation pursuant to s 36(1) of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $2,282.90 per week from 1 December 2021 to 9 December 2021.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act at the rate of $2,282.90 per week from 10 December 2021 to
7 January 2022.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $2,042.90 per week from 8 January 2022 to
20 January 2022.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $2,101.90 per week from 21 January 2022 to
25 March 2022.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $2,138 per week from 26 March 2022 to
19 May 2022.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $995.10 per week from 20 May 2022 to 2 June 2022.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $955.20 per week from 3 June 2022 to 16 June 2022.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $1,355.89 per week from 17 June 2022 to
30 June 2022.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $1,958 per week from 1 July 2022 to
19 August 2022.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $1,778 per week from 20 August 2022 to
30 September 2022.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(3) of the 1987 Act at the rate of $1,801.70 per week from 1 October 2022 to
2 January 2023.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(2) of the 1987 Act at the rate of $1,684.61 per week from 3 January 2023 to date and on a continuing basis as adjusted if necessary applying relevant indexing.
The respondent is entitled to a credit for payment of sick leave during the periods of incapacity if the applicant was not entitled to a payment of accrued sick leave on termination of her employment.

STATEMENT OF REASONS

BACKGROUND

Kylie Louise Newton (the applicant) is presently 48 years of age and was previously employed by Goulburn Mulwaree Council (the respondent) as the Business Manager Finance and Customer Service having commenced employment with the respondent in approximately 2006.
The applicant has apparently worked for the respondent as a Finance Manager since 2009 and was promoted to the position of Business Manager Finance and Customer Service in around 2017.
The applicant normally worked a 35 hour week but at different times of the year she was required to work longer hours. Those periods of longer work hours were principally between June and November each year.
The applicant’s role was a senior one within the respondent’s business and her pre-injury average weekly earnings were $2,806.15 as at September 2021 but were increased to $2,840 per week with effect from 30 September 2021.
The applicant states that from around late June 2019 her work load increased due to a number of factors including (but not limited to) the resignation of the senior accountant at the respondent, a heart attack being suffered by another accountant and poor work performance by other staff members.
On 1 September 2021 the applicant had what she describes as a breakdown on the phone while working and says that she couldn’t continue working and has been off work since that date although for reasons that are unclear a claim for workers compensation benefits was only lodged claiming benefits from 10 September 2021.
It is not disputed by the respondent that the applicant developed a psychological injury arising out of or in the course of her employment and accepts that the applicant has suffered a definable psychiatric disorder, or the aggravation of a pre-existing psychiatric condition, to which her employment was the main contributing factor.
The respondent does not rely on any defence under s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).
Provisional liability for payment of weekly compensation was accepted and payments were made up until 1 December 2021 when liability for payment of weekly compensation was denied following a work capacity decision made by the insurer of the respondent.
The work capacity decision was based upon a report prepared by a Richard Erber dated
19 November 2021.
The applicant was given alternative duties in the period of May /June 2022 working part time at a museum and an aquatic centre doing some data entry work.
On 6 June 2022 the respondent gave the applicant a show cause letter indicating that the respondent was looking to terminate the applicant’s employment on the basis of medical incapacity.
A meeting was held between the applicant and the acting General Manager of the respondent on the 30 June 2022 where discussions took place about the intention to terminate the applicant’s employment and possible alternatives to termination of employment.
Following the meeting on 30 June 2022 the respondent sent a letter dated 7 July 2022 terminating the applicant’s employment and confirming, inter alia, that the applicant would be paid five weeks pay in lieu of notice.
The applicant subsequently sought to challenge the decision to terminate her employment and brought unsuccessful proceedings in the Industrial Relations Commission.
Following termination of her employment with the respondent the applicant obtained
part-time work of a bookkeeping nature with MA Tablelands Accounting commencing that employment on 26 August 2022.
On the 3 November 2022 the applicant’s solicitors sought on the applicant’s behalf a review of the work capacity decision made on 1 December 2021 providing further materials for consideration by the respondent’s insurer.
By letter dated 17 November 2022 the insurer of the respondent advised the applicant’s solicitor that the work capacity decision of 1 December 2021 was maintained.
On 7 February 2023 the applicant filed an Application for Expedited Assessment (Application) seeking payments of weekly compensation from 1 December 2021.
A Reply to the Application for Expedited Assessment (Reply) was filed to the Application on
16 February 2023.
At a teleconference on 27 February 2023 the parties agreed that the matter was not suitable to be determined on an expedited basis given the complexity of the matter, the duration and quantum of the dispute and the matter was allocated to a Member of the Personal Injury Commission (Commission) for conciliation/arbitration.
The conciliation/arbitration was heard on 20 March 2023.

ISSUES FOR DETERMINATION

The parties agree that the only issue in dispute is whether the applicant suffers from an incapacity from the admitted psychological injury that would give her an entitlement to weekly compensation under the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply;
(c)    Application to Admit Late Documents (AALD1) filed by respondent’s solicitor on 22 February 2023 and attached documents;
(d)    Application to Admit Late Documents (AALD2) filed by applicant’s solicitor on
2 March 2023 and attached documents;
(e)    applicant’s wages schedule dated 2 March 2023;
(f)    respondent’s wages schedule dated 20 March 2023;
(g)    respondent’s wages schedule dated 3 April 2023, and
(h)    applicant’s wages schedule dated 4 April 2023.

Oral evidence

No oral evidence was given at the hearing.

FINDINGS AND REASONS

As noted at point 23 above the parties agree that the only issue for determination is whether the admitted psychological injury suffered by the applicant has given rise to an incapacity that would give her an entitlement to weekly benefits under the 1987 Act.
I note that strictly speaking there is a further issue namely determining the quantum of any weekly payment of compensation in the event incapacity is found to exist.
Not surprisingly the submissions of counsel for each party were directed to the points noted in 27 and 28 above.
Ms Goodman of counsel appeared on behalf of the applicant and (without intending to oversimplify her submissions) argued that the applicant had suffered a psychological injury being a major depressive disorder that had produced serious and ongoing problems with concentration, feelings of anxiety, distress and maladaptive behaviour patterns.
In addition to relying on the opinions of the applicant’s treating doctor Dr Abedin and the applicant’s qualified psychiatrist Dr Frank Chow Ms Goodman pointed to the opinions of
Dr John McMahon and Dr Jeff Bertucen as also supporting the applicant’s claim of incapacity to perform her pre-injury employment duties. Dr John McMahon is a psychologist qualified by the respondent to assist the respondent in determining the applicant’s fitness for work as a Business Manager and Dr Jeff Bertucen was qualified by the respondent’s insurer to determine inter alia the issue of the applicant’s fitness for work.
Ms Goodman submitted that having regard to the medical opinions the work being performed by the applicant subsequent to suffering her injury should be regarded as the appropriate measure of her work capacity. Ms Goodman submitted that such an approach accorded with long established precedent in wokers compensation law citing the decisions in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd [1] and Ludowici v Cutri.[2]
[1] [1945] NSWStR 29.
[2] (1992) 26NSWLR 580.
Accordingly Ms Goodman argued that the work capacity decision of the respondent of
1 December 2021 should be set aside and an award entered for weekly compensation at various rates from 1 December 2021 to date and continuing having regard to the applicant’s agreed pre-injury average weekly pre-injury average weekly earnings (PIAWE) and her disclosed earnings from time to time.
Mr Robison appearing for the respondent submitted in response (again without intending to oversimplify the submissions) firstly that the applicant’s inability to return to work with the respondent was the consequence of a sense of grievance with the respondent that impacted her ability to work there in any capacity, secondly the doctors qualified in the matter had not received the benefit of a full picture of the applicant’s actual abilities on a day to day basis and in terms of past history, thirdly that a true view of the medical evidence was one of expected improvement and that the applicant should have recovered her pre-injury work capacity and finally the position being taken in the present proceedings was diametrically opposed to the position the applicant had taken in industrial relations proceedings when she had sought reinstatement to her old role.
Mr Robison argued that taking all those factors into account the applicant’s present earnings did not provide a true reflection of her ability to earn and that the work capacity decision made by the respondent dated 1 December 2021 should be confirmed.
This matter is somewhat unusual in that each party relied fairly heavily on evidence that came from the other party to the proceedings and it is fair to observe that there is material in each case that assists the other party.

The work capacity decision

The work capacity decision that the respondent seeks to have confirmed was, in my view, principally based upon a report prepared by Richard Erber who is described as “Rehabilitation Counsellor, Vocational Assessor, Master in Rehabilitation Counselling” and whose report is dated 19 November 2021.[3]
It is unclear to me exactly what formal qualifications Mr Erber holds however his capacity as an expert was not challenged in the proceedings.
[3] Reply pp 68-100 inclusive.
The report of Mr Erber refers to an assessment of vocational/psychological capacity however it is not clear from the report what tests were actually administered and what the results of those tests meant in terms of work capacity.
The assessment referred to in point 38 above seems in many ways to simply repeat details of the applicant’s work experience and qualifications rather than providing any separate assessment of the applicant’s then current work capacity on the basis of identified testing results.
The report of Mr Erber indicates a number of documents were reviewed for the purposes of preparation of the report as follows;
a.certificate of capacity of Dr Abedin dated 10 September 2021;
b.certificate of capacity of Dr Abedin dated 24 September 2021;
c.certificate of capacity of Dr Abedin dated 8 October 2021;
d.notice of meeting letter from Brendan Hollands, Director Corporate and Community Services to Kylie Newton dated 30 August 2021;
e.clinical records of Bradfordville Family Medical Centre Goulburn dated from 31 August to 8 October 2021;
f.signed statement of the worker dated 19 October 2021;
g.signed statement of Brendan Hollands dated 18 October 2021;
h.signed statement of Elise Jackson dated 19 October 2021;
i.signed statement of Maria Timothy dated 20 October 2021, and
j.medical report of Dr Jeff Bertucen, IME, psychiatrist to StateCover dated
[4] Reply p78.
19 October 2021.[4]
In addition Mr Erber also reviewed his letter of referral from StateCover Mutual Limited dated 20 October 2021 and the Commission’s code of conduct.
Of the documents outlined above the statements of Brendan Hollands, Elise Jackson and Maria Timothy appear to be irrelevant to the issue of work capacity and were instead only relevant to the possible issue of injury/causation.

The medical evidence

The report of Mr Erber while referring to the certificates of Dr Abedin and the clinical records of Bradford Family Medical Centre in the list of documents reviewed does not otherwise refer to those documents in terms of the assessment of work capacity even though the certificates of capacity listed all certified the applicant as having no current work capacity.
It appears that Mr Erber did not feel that the certifications by Dr Abedin as to total incapacity for work at that time were persuasive. Alternatively he just disregarded those certificates in coming to his assessment of work capacity.
In fairness it should be noted that Mr Erber does record in his report that he forwarded a range of suggested vocational options to Dr Abedin on 2 November 2021 and that he had not heard back despite follow up telephone calls on 3 November 2021 and 4 November 2021[5] however it is unlikely that Dr Abedin would have agreed with the suggested vocational options as the doctor certified the applicant as being totally unfit until 8 January 2022.[6]
[5] Reply p72.
[6] Application pp 141 to 147 inclusive.
It is clear from a review of the report of Mr Erber that in terms of medical opinion as to capacity to work he was essentially relying on the opinion of Dr Jeff Bertucen dated
[7] Reply p77.
19 October 2021 to suggest that the applicant was fit to return to work on a 35 hour week basis and to earn between $1,531.81 to $2,461.32 per week [7] albeit Mr Erber did suggest a graded return to work over two to three weeks.
At the time of preparation of his report Mr Erber did not have the benefit of the report of
Dr John McMahon dated 30 May 2022,[8] the report of Dr Gregory Cameron dated
[8] Application pp 43 to 54 inclusive.
[9] Reply pp 51 to 58 inclusive.
4 April 2022 nor to the further report of Dr Bertucen dated 15 August 2022[9] all of which reports were obtained by the respondent or its insurer.
In his first report dated 19 October 2021 Dr Bertucen had no hesitation in diagnosing an “adjustment disorder with features of anxious expression” and expressed the view that workplace factors had been the substantial contribution to the psychological conditions.[10]
Dr Bertucen also rejected the suggestion that the condition was wholly or predominantly caused by actions taken by the respondent with respect to “discipline”.[11]
[10] Reply p47.
[11] Reply p48.
At point 10 of his report Dr Bertucen expressed the view that the applicant was capable of a graduated return to her pre-injury work beginning within the next two to three weeks[12] but did qualify his opinion that the work remit needed to be very clearly delineated and defined.[13]
[12] Reply p 48.
[13] Reply p 49.
In my view it is important to note that Dr Bertucen did not state that the applicant was immediately fit for work and also felt that any return to her pre-injury position would require modification of her working conditions.
Dr Bertucen subsequently saw the applicant for a second time on 5 August 2022 at the request of the solicitor for the respondent. Dr Bertucen and following that consultation provided a report dated 15 August 2022.
In his report Dr Bertucen recorded a history that may be summarised as follows:
(a)    the applicant had been offered a redundancy and financial settlement by the respondent in November 2021 that had been declined;
(b)    that she had been certified fit for light duties in January 2022 (initially only eight hours per week) but that the respondent was unwilling or unable to accommodate that request;
(c)    that eventually the respondent had found work for her in May 2022 in the basement of the “War Memorial” initially for six hours per week increasing to
12 hours per week;
(d)    that the applicant was seen by a psychologist John McMahon and following that appointment had been offered a settlement which had been declined;
(e)    that having declined the settlement the applicant’s employment had been terminated by the respondent on 7 June 2022;
(f)    that the applicant was at the time of her examination by Dr Bertucen looking for alternative employment on the basis that she was capable of low-stress clerical work “without deadlines or managing anyone … if not, I would just stay in bed all day”, and
(g)    that the applicant had an incentive to return to work as she was a home owner.[14]
[14] Reply p 52.

In terms of symptoms at the time of the examination on 5 August 2022 it appears that the applicant while feeling some relief at having separated from the respondent as “my work had become untenable” also expressed feelings of demoralisation, as having been demeaned and even angry. The applicant also described lethargy and demotivation. The applicant also gave a history of being reclusive, ruminating about her former work and disturbed sleep.
Dr Bertucen also recorded the applicant as reporting cognitive difficulties with executive functioning, decision making, high anxiety and “freezing” if required to do anything involving detailed thought or concentration.[15]
[15] Reply p 53.
Dr Bertucen also recorded that on the day of the interview the applicant had a Montgomery-Asberg Depression Rating Scale score of 26 which Dr Bertucen described as being in the mid to upper range of depressive symptomatology.[16]
[16] Reply p 54.
In his opinion Dr Bertucen remained of the view that the applicant had suffered a chronic adjustment disorder with features of depressed mood and anxiety and he also expressed the view that her condition had improved over the last few months.[17]
[17] Reply p 55.
Dr Bertucen felt that the applicant required continuation of her current treatments until the end of 2023 (possibly meant 2022) at the earliest with reviews by a psychologist, the use of psychotropic medications, general practitioner reviews and appointments with a psychiatrist.[18]
[18] Reply p 56.
In terms of work capacity Dr Bertucen stated that he was not persuaded that the applicant was unfit for work from a psychological perspective and that she would then be capable of 12-15 hours per week increasing to 38 hours per week over an 8-12 week period.[19]
[19] Reply p 57.
Dr Bertucen recorded that in response to specific questioning the applicant stated that:
“she is highly motivated to return to work at the earliest opportunity not only because she is a homeowner (and struggling with a mortgage on a single income) but also perceives herself fundamentally as a worker, enjoyed her previous job and believes she is far too young to retire”[20]
[20] Reply p 57.
In my view it is very important to note that the report of Dr Bertucen of 15 August 2022 does not express an opinion stating that in his view the applicant had been fit to return to her old job or an equivalent position since the date of his first report.
At the time of the assessment in August 2022 Dr Bertucen appears to accept that the applicant had remained incapacitated to some extent through to the date of the examination and at that time was only fit for home based part time clerical work of 12-15 hours per week.
The opinion of Dr Bertucen as to the applicant’s work capacity as at 5 August 2022 is in fact consistent with the actual employment history of the applicant between the two examination dates with Dr Bertucen. The applicant had attempted to return to work in January 2022 on a part-time light duties type basis and had actually performed such a role (once provided) with the respondent in May 2022 until her employment had been terminated. Further the applicant also obtained part-time employment commencing on 26 August 2022 with M A Tablelands Accounting doing less stressful bookkeeping work.
I do not find any inconsistency between the reports of Dr Bertucen. I do not read the first report as expressing an opinion that the applicant was at the date of that report fit to return to work in her old or indeed in an equivalent position elsewhere. Dr Bertucen very fairly expressed the view that the applicant had suffered a work related injury and while incapacitated at that time should be capable of a graduated return to work beginning in the next two to three weeks. When seen some 10 months later he accepted the complaints of incapacity being made by the applicant and again suggested a graded return to work in a part-time and less stressful role. Dr Bertucen noted the need for ongoing medical treatment at that time.
Dr Bertucen may have been being optimistic in his prognosis at the time of his first report but as noted he accepted the applicant as being unfit for work at that time and his subsequent report did not suggest that the applicant had been fit between the dates of both reports to perform her old job, he still felt a graduated return to work in less stressful roles was required.
The fact that the degree of recovery was slower than hoped for by Dr Bertucen is consistent with many medical conditions and is not in my view significant particularly in a case where the applicant has quite obviously attempted to return to work at an early date.
In my view the totality of the evidence of Dr Bertucen’s opinion does not support the views of Mr Erber as to the applicant’s work capacity and as noted above the only medical evidence that Mr Erber cited in his report that supported the suggestion of the applicant as being fit to return to her old position with the respondent or to equivalent roles elsewhere was the opinion of Dr Bertucen. The remaining medical opinion as expressed in the certificates of
Dr Abedin was that the applicant was at that time totally incapacitated.
Other than the medical evidence referred to in the report of Mr Erber there is other medical evidence before me dealing with the issue of the applicant’s work capacity which should be considered.
As noted at point 35 above this is a case where rather unusually each party relied fairly heavily on evidence that came in one form or another from the other party to the litigation.
Ms Goodman referred me to the opinion of Dr John McMahon dated 30 May 2022 that was prepared after an examination by the applicant by Dr McMahon on 18 May 2022.[21]
[21] Application pp 43-54 inclusive.
Dr McMahon is a psychologist who was retained by the respondent directly to determine the applicant’s fitness for her work as a business manager.
Dr McMahon administered standardized tests to determine the applicant’s clinical personality and clinical syndromes. The personality assessment inventory was reported as showing significant elevations on the anxiety, depression and suicidal ideation indexes.
Dr McMahon also reported the testing as showing significant elevations on the anxiety-affective, anxiety-physiological, traumatic stress, depression-cognitive, depression-affective, depression-physiological and thought disorder scales.[22]
[22] Application p 50.
Dr McMahon expressed the view that the applicant’s pattern of responding produced a valid and reliable profile.
Dr McMahon diagnosed the applicant as suffering from a major depressive disorder with anxious distress and with (query) mood congruent psychotic features.
Dr McMahon expressed the view that at the time of his assessment the applicant was unfit to perform the substantial duties of her position as detailed in the position description. He also stated that “There would need to be very significant improvement for her to be able to minimally fulfill these duties”.
Dr McMahon went on to state:
“In my opinion, Ms Newton is fit for rote administrative duties that she is currently performing … but without further symptomatic resolution of her condition she is unlikely to perform other types of duties especially those requiring complex interpersonal and cognitive processes.”[23]
[23] Application p 53.
Dr McMahon also stated that in his opinion:
“Without a positive response to psychiatric treatment, for the near or foreseeable future Ms Newton is unable to perform her duties.”[24]
[24] Application p53.
Dr McMahon confirmed that view by further commenting:
“Ms Newton is unfit for the duties of her position. In my opinion she may be able to perform rote administrative duties with minimal time pressures and clear limits on her hours.
… Ms. Newton’s symptoms are the primary barrier to her working, rather than some environmental issue such as working conditions at this juncture.”[25]
[25] Application pp 53-54.
In my view the assessment of Dr McMahon as to the applicant’s work capacity at the time of the examination with Dr McMahon is consistent with Dr Bertucen’s assessment in the following August when he stated that he felt the applicant was fit for home based part-time clerical work as referred to in point 60 above. Both practitioners regarded the applicant as unfit for her pre-injury job at the time of the relevant examination and both felt there was some capacity for part-time administrative duties.
The respondent certainly appears to have accepted the opinion of Dr McMahon as following the receipt of Dr McMahon’s report a notice dated 6 June 2022 was sent by the respondent to the applicant giving her notice to show cause as to why her employment should not be terminated due to her incapacity to perform the inherent requirements of her role as Business Manager Finance and Customer Service.[26]
[26] Application pp 41-42.
Following receipt of the show cause notice it appears that a meeting took place between the applicant and Matthew O’Rourke the acting General Manager of the respondent. At the meeting the applicant was accompanied by a Laura Beecham as a support person.
From the contents of a letter sent to the applicant by Mr O’Rourke dated 7July 2022 following the meeting it appears that the applicant had requested that her position be kept open for a further 12 months to enable a graduated return to duties.
That request was not agreed to with Mr O’Rourke noting as follows:
“The medical evidence provided by Dr John McMahon in his letter dated 30 May 2022 indicates that you do not have present capacity nor capacity in the foreseeable future to undertake the inherent duties of your role and you have not provided any medical evidence contrary to this position.
You have had no capacity to undertake any of the duties associated with this role since 10 September 2021.”[27]
[27] Application p 55.
The letter went on to give notice to the applicant that her employment was terminated with immediate effect.
The respondent in its position as employer of the applicant certainly accepted that the applicant was unfit for her role with the organization as at 7 July 2022 and was likely to remain so.
Dr McMahon had expressed the view that the applicant was possibly fit for limited rote administrative type duties with limits on her hours and without time pressures.
In my view that opinion is not too dissimilar to the opinion of Dr Bertucen following his examination of the applicant on 5 August 2022. It is also my view that the opinion of
Dr McMahon is not consistent with the views of Mr Erber nor does it support the work capacity decision made by the respondent’s insurer on
1 December 2021.
The applicant’s counsel in her submissions referred to the medical report of Dr Frank Chow dated 20 September 2022[28] in support of the applicant’s claim.
[28] Application pp 59-64 inclusive.
Dr Chow was a specialist psychiatrist qualified on behalf of the applicant and in his report provided a diagnosis of a chronic adjustment disorder to which her employment was the substantial contributing factor.
Dr Chow’s assessment of work capacity of the applicant was difficult to understand. At page 5 of the report[29] he stated that his opinion was that the applicant was totally unfit for work and was likely to remain so in the short to medium term yet on the following page stated:
“I do consider she has work capacity for part time hours,10-15 hours a week in a lower-level bookkeeping role with limited interaction with others.”[30]
[29] Application p 63.
[30] Application p 64.
I do not see how those two opinions can sit with each other. The best that can be obtained from Dr Chow’s opinion is that the applicant was in his view incapacitated for her former employment but the extent of the incapacity otherwise is difficult to determine from the report.
Ms Goodman also submitted that another report dated 4 April 2022 obtained by the insurer of the respondent following an injury management consultation by Dr Gregory Cameron on
14 March 2022 supported the applicant’s claim of limited work capacity.
Dr Cameron for the purposes of his report reviewed a number of documents which had been forwarded to him including Dr Bertucen’s report of 19 October 2021 and the earning capacity assessment of Mr Erber dated 19 November 2021.
Dr Cameron recorded, inter alia, that the applicant felt that she had “gotten worse” following receipt of a letter from the employer in November 2021[31] (which I understand to be a letter suggesting termination of employment on a financial settlement basis) and recorded a range of significant symptoms including low energy levels, a limited ability to concentrate, thoughts of self-harm and low motivation.[32]
[31] Reply p 65.
[32] Reply p 62.
Dr Cameron expressed the view that the applicant may be fit for work for three hours a day, five days a week with a view to upgrading the hours progressively.
Dr Cameron did not see the applicant as being able to return to work with the respondent as in his view the relationship had broken down irrevocably.
Dr Cameron did not comment on the type of work the applicant should be capable of doing for the hours suggested however he was clearly of the view that there was scope to increase the hours of work beyond the treating doctors most recent certification that Dr Cameron had seen of two hours a day three days a week for the period 21 February 2022 to 20 March 2022.
It is equally clear that he did not consider her fit for full-time employment in her former role with the respondent.
The opinion of Dr Cameron is not consistent with the respondent’s work capacity decision of 1 December 2021.
In the Reply at page 101 the respondent attached a vocational assessment report dated
14 September 2022 prepared by Brenda Groeneveld who identified a range of less stressful positions that the applicant could consider but it was also noted that there were barriers to employment even in those roles which included the fact that the applicant was limited to working six hours a day two days per week at that time. Ms Groeneveld also noted that the applicant was suffering symptoms of depression and anxiety and low self esteem.
Ms Groeneveld did not appear to raise any issue that the barriers to employment identified in the report were not real nor unreasonable.
The respondent’s Reply also attaches a copy of the applicant’s treating general practitioner’s notes and without needing to deal with each entry in detail it is apparent that between
1 September 2021 through to 4 September 2022 that the applicant was regularly receiving treatment for her psychological injury with what might be described as varying levels of intensity of symptoms with the different intensity of symptomatology often being related to the manner in which her Workers Compensation claim and her employment situation was being handled.
As an example on 26 November 2021 the applicant saw her doctor Dr Abedin and appears to have expressed an optimistic view that if she could start slowly returning to her same job working part time initially from home she could work up to her full-time role.
On 2 December 2021 the applicant saw Dr Abedin following receipt of the work capacity decision of 1 December 2021 and apparently informed the doctor that the decision had pushed her backwards with the return of panic attacks, suicidal thoughts and flat emotions.[33]
[33] Reply pp 228-229.
There is no suggestion in the general practitioners notes that the applicant was at any time during the period 1 December 2021 to 4 September 2022 fit to return to her pre-injury role with the respondent.
It is my view that the totality of the medical evidence in the case does not support the work capacity decision of the respondent of 1 December 2021 based upon the report of Mr Erber.
Mr Robison did submit that the doctors who had been qualified in the matter had not received the benefit of a full picture of the applicant’s abilities on a day-to-day basis and accordingly the medical opinions needed to be read in that light.

The Industrial Relations Commission proceedings

In my view there is a consistency of histories given by the applicant to the various doctors as to her activities on a day-to-day basis and the veracity of those histories is not really in dispute. There is however one aspect of the history that is missing and that also arises with Mr Robison’s related submission namely that the position taken by the applicant in the present proceedings is diametrically opposed to the position the applicant took in her self represented proceedings in the Industrial Relations Commission when she sought reinstatement to her position with the respondent.
None of the doctors or rehabilitation consultants who have seen the applicant and provided reports in these proceedings refer to a history of the applicant having informed them that the applicant had brought proceedings to be reinstated to her old role with the respondent.
Arguably therefore the true picture of the applicant’s work capacity is gained not by looking at the medical evidence because it is based on an incorrect history which omits a vital fact but rather the true picture is gained by accepting the applicant’s own position that she is fit for her pre-injury job with the respondent.
I acknowledge that within the various histories recorded by the doctors, the statements of the applicant and the statements of the lay witnesses from the respondent there are significantly different interpretations or understandings shown between the applicant and the respondent in relation to the attempts to return the applicant to work, offers of retrenchment and the process of termination of employment but for the most part it seems to me that those different interpretations and understandings can be readily understood in the context of someone suffering a significant psychological illness.
For instance the statement of Mr Brendan Hollands Director of Corporate and Community Services dated 16 February 2023 refers to having a Jo Miller say to him “ … something along the lines of ‘Kylie has asked me to convey ‘If they pay me out ,I’d go’”.[34] Following that comment by Jo Miller an offer was made to the applicant to end her employment after which the applicant later gave a history of receipt of the offer having caused a significant regression of depressed mood, marked negative cognitions of low self worth and demoralisation and contemplated suicide.[35]
[34] AALD1 pp 2-3.
[35] Reply p 53.
The reaction to the offer appears to be disproportionate in normal circumstances particularly if the applicant had been seeking a financial settlement but in the context of the illness behaviour the reaction does appear understandable and the medical practitioners appear to have accepted it as such.
This pattern of different interpretations of the same event can be seen in other instances such as the offer to the applicant by the respondent to perform part of but not all of the duties of her old role as part of a return to work process which the applicant appears to have regarded with suspicion and a cause of distress[36] but the respondent considered a genuine attempt to assist a return to work.[37]
[36] AALD1 p 95.
[37] AALD1 pp 14-15.
The different interpretation of events does not in my view constitute a failure to provide a complete history to the doctors but rather may simply be regarded as the manifestation of the illness from which the applicant was suffering, it should be noted that the applicant’s first dramatic demonstration of illness behaviour was the rather inappropriate reaction by the applicant to a neighbour’s complaint about a barking dog in August 2021.
Overall the medical practitioners have accepted the applicant as a truthful historian and none of them suggest that her reported symptoms and claimed incapacity are untrue.
The absence of the history of the Industrial Relations Commission proceedings in those histories is prima facie a concern as a claim to be reinstated to one’s former job is inconsistent with a claim of incapacity to perform that role.

In an ideal world it would have been very helpful if the qualified medical practitioners in the case had been provided with the Industrial Relations Commission material before me (and any other material from the case) and asked to comment on whether that material caused them to alter their view as to the applicant’s condition and current work capacity however that does not appear to have been done by either party. I intend no criticism of the representatives of either party knowing the difficulties of litigating in the context of tight time frames where material can become available late in the piece however it would have been of assistance if such supplementary reports formed part of the evidence in the case.
Reviewing the judgment from the Industrial Relations Commission[38] it is my view that the applicant in those proceedings was not asserting that she was fit for work in her pre-injury role rather it seems her argument was that her dismissal was unfair because she had not been given enough of an opportunity to rehabilitate, that the respondent should have acceded to a request to keep her position open for a period of 12 months following her request (presumably to give her time to recover from her illness) and that her treatment by the employer in offering inappropriate duties and delaying in offering other suitable duties had adversely affected her rehabilitation.
[38] AALD1 pp 86-102.
The position that appears to have been advanced by the applicant in her Industrial Relations Commission proceedings might be best summed up as, “I am presently unfit but it is unreasonable for me to be dismissed given the failure of the Council to meet its rehabilitation obligations.” That case is not inconsistent with her claim of incapacity in these Workers Compensation proceedings.
In my view the absence of the history of the applicant’s participation in the Industrial Relations Commission case does not materially affect the weight of the medical evidence in favour of the applicant as presently being incapacitated for her pre-injury role with the respondent.
Mr Robison submitted that the applicant’s ability to bring and argue the Industrial Relations Commission case where she acted for herself and without the benefit of legal advice also indicates that the applicant has a capacity for work that is not reflected in her claimed level of incapacity. Mr Robison argued that bringing such proceedings was a complex matter and not consistent with the applicant’s claim of only being able to undertake relatively simple and undemanding tasks.
I do not agree with that submission as the limited material available relating to the proceedings suggests that the application may not have been particularly well drafted or argued. At point 21 of the judgment Commissioner Webster commented “As best as I can discern …” when trying to summarise the applicant’s case. That comment suggests that the Commissioner had something of a struggle understanding the case that was being put which is not consistent with it having been prepared competently.
My review of the affidavit the applicant prepared in the proceedings[39] is consistent with that view as it is a document that includes much irrelevant material and contains a lot of content where the distress of the applicant is clearly apparent.
Further the judgment highlights that the applicant’s case lacked evidence that should have been obtained e.g., a medical report in response to Dr McMahon’s opinion, evidence that the decision to terminate her employment was due to personal resentments, “cogent evidence” to contradict the evidence of Mr Hollands and so on.
[39] AALD2 pp64-113.
In my view the material that is available suggests that the Industrial Relations Commission proceedings were brought by the applicant in an attempt to try and save what was for her a well paid senior position with the respondent and was a role that would be difficult for her to replace with another employer despite the fact that she did not consider herself presently fit for that role. Such an action is understandable.
There is no material that enables me to determine why the applicant brought the proceedings without the benefit of professional legal advice. It could be because she had an unrealistic view of her capabilities, it could be because she could not afford the costs of legal representation at a time when her employment had been terminated and financial pressures were beginning to mount, it could be because she could not find a lawyer willing to take the matter on at that time just to set out a few possibilities. The reason why that happened is not in my view of much significance and I do not consider that her performance of her role as the self represented litigant in those proceedings as being inconsistent with her claim of wanting to fill simple and undemanding tasks until she recovered her capacity to return to her pre-injury position with the respondent.
I do not agree that the conduct of the Industrial Relations Commission proceedings by the applicant supports the earlier work capacity decision of the respondent dated
1 December 2021.

Sense of grievance

Mr Robison also argued that any incapacity from which the applicant suffered was the consequence of a sense of grievance against the respondent and its employees and that she could not return to her old role with the respondent not because of her work injury and resultant reduced work capacity but rather because of the resentment she had developed towards the respondent and its employees.
There is no doubt that the relationship between the applicant and the respondent has deteriorated and I have already referred to some examples of the deterioration of the relationship revealed by the evidence (see point 105 above) however it is my view that the deterioration of the relationship is readily understood in the context of her work injury and I note that Dr McMahon diagnosed an emerging psychotic process as part of the psychological injury[40] which may provide an explanation for some of the applicant’s behaviour and resentment of her former colleagues.
[40] Application p 52.
There is no evidence that would support a suggestion that the applicant has a sense of grievance that developed unrelated to her work injury and that would incapacitate her for her employment with the respondent only.

Work capacity

Returning to the medical evidence in the case it is apparent that while all of the health professionals appear to accept that the applicant is incapacitated to perform her pre-injury duties with the respondent the assessment of the extent of the incapacity varies.
Dr Chow is the most pessimistic in terms of assessment of incapacity and, as noted earlier, expressed the view that as at the date of his examination the applicant was totally unfit for work and that “The prognosis of her condition is likely to remain ongoing and chronic”.[41]
[41] Application p 63.
Having expressed the view that the applicant was totally unfit he later in the same report certified her fit for part-time hours 10-15 hours per week in a lower-level bookkeeping role.[42]
That part of the assessment was in line with the applicant’s work history at the time.
[42] Application p64.
I do not find Dr Chow’s assessment very helpful as the report appears to have been carelessly prepared and without the appropriate attention to the detail of the case.
As noted earlier I have read the two reports of Dr Bertucen as meaning that while he may have been hopeful of an earlier graduated return to work he accepted (as at the date of his second examination) that the applicant had remained incapacitated for her pre-injury job with a limited work capacity of around 8 to 12 hours per week from the time of his first examination to the date of his second examination.
At the time of his second examination Dr Bertucen indicated that the applicant remained unfit to return to work with the respondent due to the risk of “triggering” anxiety and panic symptoms but her condition had improved over the last few months following the termination of her employment.
Dr Bertucen indicated that a return to full-time hours over a graduated return to work plan sensitively handled was possible but starting with 12-15 hours per week.[43]
[43] Reply p60.
Dr McMahon was more cautious in his assessment of the applicant’s work capacity considering that she was fit for the role she was currently performing involving rote administrative duties with clear limits on her hours and that there would need to be a very significant improvement for her to minimally fulfill the substantial duties of her pre-injury role.[44]
[44] Application p53.
As noted earlier Dr Cameron expressed the view that the applicant was unable to return to work with the respondent and was fit for three hours a day, five days a week.[45]
[45] Reply p 64.
All of three of Drs Bertucen, Cameron and McMahon were qualified by the respondent or its insurer to provide reports and all of them as at the date of their report or last report (as applicable) express the view that the applicant is fit for less stressful part-time work for around 12 to 15 hours per week.
Both Dr Bertucen and Dr Cameron are hopeful of an improvement in the applicant’s work capacity in the future however I do not have the benefit of any subsequent reports from either doctor to know what their present view of the applicant’s capacity is.
The applicant’s treating general practitioner certified her current work capacity as follows;
(a)    from 1 December 2021 to 7 January 2022 – totally unfit;
(b)    from 8 January 2022 to 20 January 2022 – fit for 4 hours day/ 2 days a week;
(c)    from 21 January 2022 to 12 May 2022 – fit for 2 hours day/ 3 days a week;
(d)    from 13 May 2022 to 9 June 2022 – fit for 3 hours day/ 2 days a week;
(e)    from 10 June 2022 to 19 August 2022 – fit for 4 hours day/ 3 days per week, and
(f)    from 19 August 2022 to 9 December 2022 – fit for 6 hours day/ 3 days per week.[46]
For the purposes of the certifications it seems the general practitioner was certifying the applicant as being fit for the less stressful clerical or administrative roles she was filling either with the respondent or with her subsequent employer as a bookkeeper and that she has not been fit at any point to return to her pre-injury job with the respondent.
[46] Reply pp 134 to 180.
Unfortunately there is no useful material in the evidence from the treating psychologist Roger Laurie that would enable me to understand his view as to the applicant’s work capacity.
Reviewing the certifications of the treating general practitioner Dr Abedin (or from a fellow practitioner from that practice in Dr Abedin’s absence) and comparing those with the views of Drs Bertucen, Cameron and McMahon it seems to me that there is not a great divergence in those certifications and the opinions of Drs Bertucen, Cameron and McMahon.
Dr Abedin as the treating practitioner has the benefit of regularly seeing the applicant throughout the period of her illness and also has the benefit of a long history of treating the applicant prior to her work injury.
Given the benefit of her position as the treating general practitioner and given the general consistency of Dr Abedin’s certifications as to work capacity with the opinions of
Drs Bertucen, McMahon and Cameron referred to above I am of the view that I should accept the certifications of Dr Abedin as accurately reflecting the level of work capacity of the applicant from 1 December 2021 up to 9 December 2022.
As I noted earlier Ms Goodman had suggested that the proper approach to assessing the applicant’s capacity is to accept that her capacity is demonstrated from the work she is doing from time to time and referred to the decisions of Aitken v Goodyear Tyre & Rubber Co.[47] and Ludowici v Cutri[48] in support of that submission.
[47] (1945) 46 SR (NSW) 20.
[48] (1992) 26NSWLR 580.
In my view those decisions are of limited relevance as they were decisions relating to assessment of incapacity under earlier statutory regimes that were not in the same terms of the present legislation.
The applicant was apparently paid weekly compensation from 10 September 2021 to
1 December 2021 which is a period of just under 12 weeks. Therefore any entitlement to weekly compensation needs to be calculated pursuant to s 36 of the 1987 Act up to
4 December 2021 and thereafter pursuant to s 37 of the 1987 Act.
Relevantly for the purposes of this case s 36 provides as follows:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the workers pre-injury average weekly earnings”
I note that as I have accepted that the applicant had no current work capacity as at
1 December 2021 through to 7 January 2022 sub-s (2) of s 36 is not applicable.
For the period from 4 December 2021 to date the relevant calculation of any entitlement under to weekly payment of compensation is to be assessed under s 37 which provides as follows:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates-
(a) 95% of the worker’s pre-injury average weekly earnings, less the workers current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be the lesser of the following rates –
(a) 80% of the worker’s pre-injury average weekly earnings , less the worker’s current weekly earnings ,
(b) the maximum weekly compensation amount, less the workers current weekly earnings.”
For the purposes of the section it is necessary to understand firstly the definition of “current weekly earnings” which (in the rather Byzantine form of the relevant legislation) is not found in the definition section of the 1987Act nor in the definitions at the start of Division 2 of the 1987 Act but rather in cl 8 of Schedule 3 to the 1987 Act where the following definition appears;
“8. Current weekly earnings, of an injured worker in relation to a week, means whichever of the following is the greater amount-
(a)the worker’s actual gross earnings in respect of that week,
(b) the weekly amount the worker is able to earn in suitable employment.”
In my view it is very clear that I am required to undertake an assessment of the weekly amount the worker is able to earn in suitable employment and not simply accept the actual gross earnings as being the measure of “current weekly earnings”.
If the legislature had intended that the actual gross earnings per week were to be the measure of “current weekly earnings” the word “or” would no doubt have been inserted at the end of sub-cl (a) of cl 8.
Clause 8 raises the issue of the meaning of “suitable employment” which is defined in s 32A of the 1987 Act as being;
“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 but the worker (under section44B), 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 a 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”
Pursuant to the authority of the decision in the matter of Wollongong Nursing Home Pty Limited v Dewar[49] (Dewar) there needs to be evidence before the Commission of a “real job” that the applicant has the qualifications to perform, is physically fit to perform and would be expected to secure and retain.
[49] [2014] NSWWCCPD 55.
After being certified as having some work capacity from 7 January 2022 the applicant had a period of part-time employment with the respondent from 20 May 2022 to 30 June 2022 where she worked initially at the respondent’s museum and then at the aquatic centre doing what has been described as simple data entry work and was paid at the rate of $80.18 per hour.[50]
[50] AALD1 pp 74-78.
The rate of pay for the work the applicant was performing in the period 20 May to
30 June 2022 seems extraordinary for what was described as a simple data entry role and reviewing the payslips attached to AALD1 reveals that the rate of pay for the part-time work was in fact the same rate of pay the applicant was receiving in her pre-injury role with the respondent. It appears that for the period of the light part-time work the respondent simply decided to pay the applicant her old rate of pay.
I do not regard the part-time work and the very high rate of pay the applicant received working part-time for the respondent as representing a “real job” as required by Dewar. I do note however that if the applicant’s gross earnings during that period exceed her ability to earn in suitable employment the higher figure is deductible under s 37 of the 1987 Act.
After her employment with the respondent was terminated the applicant was able to obtain part-time work with MA Tablelands Accounting doing bookkeeping work.
The applicant initially commenced working two days a week six hours a day on
26 August 2022 but increased her work to three days a week six hours a day from
12 October 2022.
The work for MA Tablelands Accounting obviously carries much less responsibility and for a qualified accountant must be much easier from an intellectual point of view than her former role with the respondent and has the characteristics of being of a rote administrative or clerical type position in line with the certifications of capacity from Dr Abedin and the views of
Dr McMahon.
I accept Mr Robison’s submission that bookkeeping is not just a simple task and does it require concentration and care however in my view the level of responsibility and the complexity of the task is well below the requirements of her pre-injury role as set out in the vocational assessment report of Ms Groeneveld[51], the earning capacity assessment of
[51] Reply pp 105-106.
[52] Reply pp 83-84.
Mr Erber[52] and the applicant’s statements.
The applicant is presently being paid at the rate of $30 per hour.
Ms Groeneveld in her vocational assessment report identified three suitable roles for the applicant at the time of the assessment being accounts clerk, sales assistant and general clerk. Those roles were described as having rates of pay between $30.77 per hour at the highest (accounts clerk) down to $23.64 at the lowest (sales assistant).[53] Those rates of pay are in line with the applicant’s present rate of pay despite the difference in roles.
[53] Reply p 111.
Mr Erber in his earning capacity assessment report identified three roles that he considered the applicant was capable of filling namely finance manager, senior accountant or senior finance officer. Those roles are described as having a rate of pay between $70.32 per hour at the highest (finance manager) down to $43.77 per hour at the lowest (accounts clerk)[54] however I do not accept that at the present time the applicant is capable of fulfilling the requirements of those roles as described by Mr Erber in his report.[55]
[54] Reply p77.
[55] Reply pp 87-96.

Having regard to all the evidence I find on the balance of probabilities that since
7 January 2022 that the applicant has been fit for bookkeeping work for the hours per week as certified from time to time by her treating doctor Dr Abedin. I also accept on the balance of probabilities that the appropriate hourly rate of pay that the applicant was capable of earning during that period was one of $30 per hour.
I accept that the applicant obviously has the potential to move back to a much more responsible and remunerative position once she has been successfully treated for her work injury however in my view on the balance of probabilities she is not capable of doing so at the present time.
The parties agree that the applicant’s pre-injury average weekly earnings have at all relevant times been higher than the statutory maximum weekly compensation amount.
I have reviewed the wages schedules filed by each party and do not find them particularly helpful particularly that of the applicant. In assessing the applicant’s entitlements to weekly compensation I have relied upon the payment advices appearing at pages 32 to 82 of AALD1 as the evidence of the applicant’s earnings during the period from 1 December 2021 to the date of termination of her employment with the respondent as being the best evidence of those earnings.

SUMMARY

I set aside the work capacity decision of the respondent dated 1 December 2021.
I find that the applicant had no current work capacity from 1 December 2021 to
7 January 2022.
I find that the applicant had a current work capacity from 8 January 2022 to 20 January 2022 for four hours work for two days a week such work to be of a non-stressful rote clerical or administrative nature.
I find that the applicant had a current work capacity from 21 January 2022 to 12 May 2022 for two hours work for three days per week such work to be of a non-stressful rote clerical or administrative nature.
I find that the applicant had a current work capacity from 13 May 2022 to 9 June 2022 for three hours work two days per week such work to be of a non-stressful rote clerical or administrative nature.
I find that the applicant had a current work capacity from 10 June 2022 to 19 August 2022 for four hours work three days per week such work to be of a non-stressful rote clerical or administrative nature.
I find that the applicant had a current work capacity from 20 August 2022 to date and continuing of six hours a day three days per week such work to be of a non-stressful rote clerical or administrative nature.
I find that the applicant’s present rate of pay of $30 per hour to be an appropriate measure for calculation of her current weekly earnings for the period from 1 December 2021 to date.
There will be an award that the respondent pay the applicant weekly compensation as follows;
(a) pursuant to s 36(1) at the rate of $2,282.90 per week from 1 December 2021 to
9 December 2021;
(b)    pursuant to s 37(1) at the rate of $2,282.90 per week from 10 December 2021 to 7 January 2022 being the s 34 maximum;
(c)    pursuant to s 37(3) at the rate of $2,042.90 per week from 8 January 2022 to
20 January 2022 being the s 34 maximum less the applicant’s assessed current weekly earnings of $240 per week;
(d)    pursuant to s 37(3) of the 1987 Act at the rate of $2,101.90 from 21 January 2022 to 25 March 2022 being the s 34 maximum less the applicant’s assessed current weekly earnings of $180 per week;
(e)    pursuant to s 37(3) of the 1987 Act at the rate of $2,138 from 26 March 2022 to
19 May 2022 being the s 34 maximum less the applicant’s assessed current weekly earnings of $180 per week;
(f)    pursuant to s 37(3) of the 1987 Act at the rate of $995.10 from 20 May 2022 to
2 June 2022 being the s 34 maximum less the applicant’s current weekly earnings (being her actual gross weekly earnings) of $1,322.90;
(g)    pursuant to s 37(3) of the 1987 Act at the rate of $955.02 from 3 June 2022 to
16 June 2022 being the s 34 maximum less the applicant’s current weekly earnings (being her actual gross weekly earnings) of $1,362.98;
(h)    pursuant to s 37(3) of the 1987 Act at the rate of $1,355.89 from 17 June 2022 to 30 June 2022 being the s 34 maximum less the applicant’s current weekly earnings (being her actual gross weekly earnings) of $962.11;
(i)    pursuant to s 37(3) of the 1987 Act at the rate of $1,958 from 1 July 2022 to
19 August 2022 being the s 34 maximum less the applicant’s assessed current weekly earnings of $360;
(j)    pursuant to s 37(3) of the 1987 Act at the rate of $1,778 from 20 August to
30 September 2022 being the s 34 maximum less the applicant’s actual current weekly earnings of $540;
(k)    pursuant to s 37(3) of the 1987 Act at the rate of $1,801.70 from 1 October 2022 to 2 January 2023 being the s 34 maximum less the applicant’s assessed current weekly earnings of $540, and
(l)    pursuant to s 37(2) of the 1987 Act at the rate of $1,684.61 from 3 January 2023 being the s 34 maximum less the applicant’s actual current weekly earnings of $540 such payment to continue as adjusted if necessary applying relevant indexing.

[2023] NSWPIC 178

21 April 2023