NSW Department of Education & Training v Synnott
[2008] NSWWCCPD 21
•19 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:NSW Department of Education & Training v Synnott [2008] NSWWCCPD 21
APPELLANT: NSW Department of Education & Training
RESPONDENT: Karen Elizabeth Synnott
INSURER:GIO General Ltd
FILE NUMBER: WCC5457-07
DATE OF ARBITRATOR’S DECISION: 5 November 2007
DATE OF APPEAL DECISION: 19 February 2008
SUBJECT MATTER OF DECISION: Partial incapacity for work; section 38(1)(a) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: McLean Lawyers
Respondent: MacMahon Associates Lawyers
ORDERS MADE ON APPEAL: Clause 3(e) of the decision of the Arbitrator, dated 5 November 2007, is revoked and the following clause is substituted:
(e) s 38 from 1/4/07 to 27/8/07 at $1535.90 per week.
The Arbitrator’s decision is otherwise confirmed.
There is no order as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 14 November 2007, the NSW Department of Education & Training (‘the Department’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 5 November 2007. The Respondent to the appeal is Karen Elizabeth Synnott. The Department’s workers compensation insurer is GIO General Ltd.
Ms Synnott, who is now aged 51, is a long-term employee of the Department. On 20 July 2007, the Commission registered her ‘Application to Resolve a Dispute’ in relation to her claim for weekly compensation and medical expenses resulting from a psychological injury arising out of or in the course of her employment.
On 24 August 2007, the Arbitrator conducted a teleconference with the parties. On 2 October 2007, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing. On 5 November 2007, the Commission issued the Arbitrator’s decision in the terms set out below.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 5 November 2007, records the Arbitrator’s orders as follows:
“1. Award in favour of the Applicant for a psychological injury resulting from the nature and conditions of her employment between 1 January 2004 and 4 April 2006.
2. Award in favour of the Applicant for her claim for s 60 medical expenses in relation to the period 1 January 2004 and [sic] 4 April 2006.
3. Award in favour of the Applicant for weekly benefits compensation as follows:
Section 36 payments at the maximum prescribed rate for the first 26 weeks of total incapacity:(a) s 36 from 30/5/06 to 30/9/06 at $1479.40/week.
(b) s 36 from 1/10/06 to 27/11/06 at $1506.90/week.
Section 37 payments at maximum statutory rate after the first 26 weeks of total incapacity:
(c) s 37 from 28/11/06 to 26/2/07 at $354.40/week.
Section 38 payments at the maximum prescribed rate for first 26 weeks:
(d) s 38 from 27/2/07 to 31/03/07 at $1506.90/week
(e) s 38 from 01/04/07 to 27/08/07 at $1536.90/week.
Section 38 payments after the first 26 weeks of partial incapacity at 80% of the maximum prescribed rate:
(f) s 38 from 29/08/2007 to 16/09/2007 at $1228.72/week.
4. The Respondent is to receive credit for payments already made to the Applicant under s 36.
5. Award in favour of the Applicant for s 60 medical expenses for the period 15 November [2006] to 16 April 2007.
6. The Respondent to pay the Applicant’s costs as agreed or assessed. For the purposes of Schedule 6 of the Workers Compensation Regulation 2003 I certify this matter as complex pursuant to Table 4, Item 4, and certify that there is to be a 25% increase in the costs otherwise available at Item F of Table 1.”
Accompanying the Certificate of Determination was the Arbitrator’s Statement of Reasons for her decision. The relevant parts of that Statement are referred to below.
ISSUES IN DISPUTE
The sole issue in dispute in the appeal is whether Ms Synnott was partially incapacitated for work from 17 April 2007. The Department submits Ms Synnott was no longer incapacitated for work from this date and, therefore, the Arbitrator erred in awarding weekly compensation from 17 April 2007 to 16 September 2007. The parties’ submissions are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by the Department that the appeal can be determined on the basis of these documents, Ms Synnott’s solicitors not having made any submission on this issue, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue exceeds $5,000 and constitutes more than 20% of the amount awarded in the decision appealed against. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS AND DISCUSSION
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the Department must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
As stated above, the sole issue in dispute is whether Ms Synnott was partially incapacitated for work from 17 April 2007. The Department concedes that no “suitable duties” were provided in response to Ms Synnott’s request made on 29 January 2007 and that she did not return to work for the Department until 19 September 2007. However, the Department submits that notwithstanding this, Ms Synnott was no longer incapacitated for work from 17 April 2007 and was, therefore, not entitled to payment of weekly compensation pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’). Thus, the Department contends the Arbitrator erred in awarding weekly compensation from 17 April 2007 to 16 September 2007.
The Department’s submissions
The Department notes that Ms Synnott’s treating psychiatrist, Dr Enrico Parmegiani, certified that Ms Synnott was “fit for suitable duties from 26/2/07 to 25/4/07” on the basis of a “graded return to work one day/week, administrative duties only” (WorkCover Medical Certificate dated 25 January 2007). On 17 April 2007, Dr Parmegiani certified Ms Synnott as “fit for pre-injury duties from 17/4/07”, stating that an assessment of workplace duties was not required (WorkCover Medical Certificate dated 17 April 2007). Moreover, another treating Psychiatrist, Dr Margaret Harper, in a report dated 28 June 2007, stated that Ms Synnott had: “fully recovered from her episode of illness ... [and had] remained well since August 2006. She is fit to return to her pre-injury duties ... This has been the case since April 2007.” In a later report dated 23 August 2007, Dr Harper said: “I am most concerned that while Mrs Synnott has been medically fit to return to work in her pre-‘injury’ duties since April 2007, she has not been offered a position ...”
The Department submits that the primary pre-condition upon which an employee is entitled to be compensated pursuant to section 38 is ‘partial incapacity’. The centrality of ‘partial incapacity’ is reinforced by the section 38A requirement for the worker to supply the employer with a medical certificate to that effect. The Department refers to the meaning of ‘incapacity for work’ discussed in Ball v William Hunt & Sons Ltd [1912] AC 496 in terms of a “physical defect” making the person’s labour unsaleable in any labour market reasonably available to the person, and ‘partial incapacity for work’ as being when such defect makes the person’s labour less saleable than would otherwise be the case. In Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 (‘Arnott’s Snack Products’), at paragraph 13, the High Court said:
“the concept of partial incapacity for work is that of reduced physical incapacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.”
The Department submits “the emphasis demonstrated by the authorities is based on the concepts of a ‘defect’ or ‘reduced physical incapacity’ by reason of ‘disability’”. Here Ms Synnott was certified fit for pre-injury duties and her treating psychiatrists were exhorting the Department to provide her with pre-injury duties. The Department contends that from 17 April 2007, Ms Synnott was no longer incapacitated in any way, and the Arbitrator’s finding in this regard was plainly wrong.
Ms Synnott’s submissions
Ms Synnott’s solicitors note that while, on 17 April 2007, she was certified fit for pre-injury duties, this was on the basis that she should not return to work at the school where she worked at the time of the April 2006 incident that led to her incapacity. Both Dr Parmegiani and Dr Harper were of the view that returning to work at that school would be detrimental to Ms Synnott’s health. Ms Synnott’s solicitors submit that she was, therefore, still partially incapacitated for work in April 2007 because there was a restriction on her ability to return to work. Such a finding of partial incapacity was open to the Arbitrator on the evidence.
With regard to the authorities cited by the Department in its submissions, Ms Synnott’s solicitors submit that the workers compensation legislation applies to both physical and psychological injuries as is apparent from the provisions relating to psychological injury in section 11A of the 1987 Act.
Discussion
Section 38(1) of the 1987 Act states:
“38 Partially incapacitated workers not suitably employed - special initial payments while seeking employment
(1) Entitlement. If:
(a) a worker is partially incapacitated for work as a result of an injury, and
(b) the worker is not suitably employed during any period of that partial incapacity for work,
the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.”
Section 38(4) states that compensation under this section is not payable during any period unless the worker is seeking suitable employment during that period. Section 38A states:
“38A Determination of whether worker seeking suitable employment
(1) Application. This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).
(2) General requirements. The worker is not to be regarded as seeking suitable employment unless:
(a) the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and
(c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(d) the worker is taking reasonable steps to obtain suitable employment from some other person.Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.”
The Department concedes that no suitable duties were provided to Ms Synnott in response to her request. The Department’s reference to section 38A is to “reinforce the centrality of ‘partial incapacity’ as the basis of receiving benefits pursuant to section 38”.
I have reviewed the evidence concerning Ms Synnott’s capacity for work in April 2007. I note that her treating Psychiatrist, Dr Parmegiani, in his WorkCover Medical Certificate dated 17 April 2007, while certifying Ms Synnott as fit for pre-injury duties from 17 April 2007, certifies that she is suffering from “major depression” and states, as the management plan, “continue current treatment with antidepressant medication & psychotherapy”, with a treatment review date of 17 October 2007. Dr Harper, a Psychiatrist who treated Ms Synnott at the Northside Clinic, in her report dated 28 June 2007, while stating that Ms Synnott had “fully recovered from her episode of illness” and was “fit to return to her pre-injury duties ... since April 2007”, nevertheless strongly recommended that Ms Synnott should not return to the area in which she had previously worked. In her report dated 23 August 2007, Dr Harper re-emphasised this point. She also noted that Ms Synnott had responded to treatment and: “is currently free of and is in fact recovered from her episode of depression. Recovery is defined as minimal or no symptoms for a six month period.”
In the Statement of Reasons for her decision, the Arbitrator noted that both Dr Parmegiani and Dr Harper made clear that for Ms Synnott to return to the area where she had previously worked “would be detrimental to her recovery and health” and recommended against this (paragraph 36). The Arbitrator agreed with Ms Synnott’s counsel’s submission that this recommendation indicated that although Ms Synnott was able to return to her pre-injury duties, “she continues to have incapacity because she cannot return to the site” where the injury had occurred.
In my view, it is clear from the workers compensation legislation that the definition of injury is intended to include psychological injuries. Section 11A of the 1987 Act makes express reference to this and provides that no compensation is payable for psychological injuries wholly or predominantly caused by certain reasonable action taken or proposed to be taken by or on behalf of the employer.
The Arbitrator found that Ms Synnott was partially incapacitated for work during the period 17 April 2007 to 16 September 2007. As stated in Arnott’s Snack Products, it is the physical incapacity for doing work upon which the right to compensation for an injury depends, whether the injury giving rise to the incapacity is of a physical or psychological nature. In relation to partial incapacity, the High Court said, at paragraph 13:
“[T]he concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.”
In my view, there was sufficient evidence to support the Arbitrator’s finding of partial incapacity, namely the evidence of Dr Parmegiani and Dr Harper that despite Ms Synnott being fit for her pre-injury duties, there remained a restriction on the work she could undertake following the injury, in so far as she could not return to work in the area in which she had previously worked and where the injury occurred. This suggests that at the time of Dr Parmegiani's WorkCover Medical Certificate dated 17 April 2007 and Dr Harper’s report dated 28 June 2007, while they considered Ms Synnott was symptom free and fit for her pre-injury duties, they both recognised that she had a reduced physical capacity by reason of her psychological injury. There was therefore evidence to support the Arbitrator’s finding of partial incapacity for work.
Thus, the Department has failed to establish its ground of appeal and the Arbitrator’s decision must be confirmed. I note, however, that the Arbitrator has made an error in the maximum rate for the section 38 payments to which Ms Synnott is entitled for the period from 1 April 2007. This should read $1,535.90 per week and not $1,536.90 per week as stated in the Certificate of Determination. I have therefore amended the Arbitrator’s decision accordingly. I express no opinion with respect to the calculation of the entitlement to compensation under section 38 and having regard to section 35, as this aspect of the Arbitrator’s decision was not in issue on appeal.
DECISION
Clause 3(e) of the decision of the Arbitrator, dated 5 November 2007, is revoked and the following clause is substituted:
(e) s 38 from 1/4/07 to 27/8/07 at $1535.90 per week.
The Arbitrator’s decision is otherwise confirmed.
COSTS
There is no order as to the costs of the appeal
Robin Handley
Acting Deputy President
19 February 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:NSW Department of Education & Training v Synnott [2008] NSWWCCPD 21R
APPELLANT: NSW Department of Education & Training
RESPONDENT: Karen Elizabeth Synnott
APPLICANT FOR RECONSIDERATION: Karen Elizabeth Synnott
INSURER:GIO General Ltd
FILE NUMBER: WCC5457-07
DATE OF ARBITRATOR’S DECISION: 5 November 2007
DATE OF APPEAL DECISION: 19 February 2008
DATE OF RECONSIDERATION DECISION: 31 March 2008
SUBJECT MATTER OF DECISION: Costs
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: McLean Lawyers
Respondent: MacMahon Associates Lawyers
ORDERS MADE ON APPEAL: That part of the decision stating “[t]here is no order as to the costs of the appeal” is revoked and, in substitution, the Appellant, the NSW Department of Education & Training, is to pay the costs of the Respondent, Ms Synnott, in the appeal.
RECONSIDERATION OF ORDER
On 19 February 2008, I issued the following determination in the appeal:
“Clause 3(e) of the decision of the Arbitrator, dated 5 November 2007, is revoked and the following clause is substituted:
(e) s 38 from 1/4/07 to 27/8/07 at $1535.90 per week.
The Arbitrator’s decision is otherwise confirmed.
There is no order as to the costs of the appeal.”
On 27 February 2008, Ms Synnott’s solicitors lodged an Application for Reconsideration of the Decision made on Appeal in relation to the costs of the appeal. The Commission invited submissions from the parties. On 5 March 2008, Ms Synnott’s solicitors lodged submissions. No submissions have been lodged by the Department.
Ms Synnott’s solicitors submit that traditionally costs follow the event when a party is successful. In this instance, the Department appealed against a decision of the Arbitrator, requiring Ms Synnott to respond or risk being penalised for default for not responding. Her solicitors state that, accordingly, they undertook a significant amount of work in defending the appeal, which involved a question of law, necessitating Counsel settling draft submissions. Ms Synnott’s solicitors submit that they cannot be expected to undertake such work on a pro bono basis.
I have reviewed my decision on the appeal in this matter and note that the Department failed to establish its grounds of appeal. The only amendment made to the Arbitrator’s decision was in relation to the rate of weekly compensation payment under section 38 of the Workers Compensation Act 1987 for the period 1 April 2007 to 27 August 2007, in respect of which the Arbitrator made an error, nominating a rate of $1,536.90 per week rather than the correct rate of $1,535.90 per week. I therefore amended the Arbitrator’s decision accordingly.
In view of the fact that the Department failed in its appeal, I agree that it is appropriate to make an order for the Department to pay Ms Synnott’s costs in the appeal and I therefore amend that part of my decision to reflect this.
DECISION
That part of the decision stating “[t]here is no order as to the costs of the appeal” is revoked and, in substitution, the Appellant, the NSW Department of Education & Training, is to pay the costs of the Respondent, Ms Synnott, in the appeal.
Robin Handley
Acting Deputy President
31 March 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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