Philpott v Australian Plays Transform - [2022] NSWPIC 96

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Philpott v Australian Plays Transform [2022] NSWPIC 96
APPLICANT:	Lachlan Philpott
RESPONDENT:	Australian Plays Transform
MEMBER:	4 March 2022
DATE OF DECISION:	John Wynyard
CATCHWORDS:	WORKERS COMPENSATION - Challenge to work capacity assessment; applicant assessed as capable of doing suitable employment as a teacher for 26 hours per week; a University of Sydney report which demonstrated that approximately half a teacher's time is spent in preparation for face to face teaching was relied on to support a submission that the assessment of the applicant's earning capacity should be halved; Held- application dismissed; the Personal Injury Commission has no jurisdiction to alter mandated rates of pay; work capacity assessment confirmed.
DETERMINATIONS MADE:	1. The work capacity decision of 26 May 2021 is confirmed. 2. The respondent will pay the applicant the sum of $649.20 per week from 6 September 2021 to 27 September 2021.

STATEMENT OF REASONS

BACKGROUND

Lachlan Philpott, the applicant, brings an action against Australian Plays Transform, the respondent, seeking payment of weekly compensation for an admitted psychological injury sustained on 26 March 2019 (deemed).
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) does the Work Capacity Assessment contained in the dispute notice of 26 May 2021 and subsequently confirmed by the further dispute notice of 16 August 2021, accurately describe the Mr Philpott’s earning capacity?

PROCEDURE BEFORE THE COMMISSION

The matter was heard at a teleconference conciliation and arbitration on 12 January 2022. The applicant was represented by Ms Kathleen Harley of Messrs Santone Lawyers briefing Mr Lachlan Robison of counsel. The respondent was represented by Ms Lily Fung of Messrs Hall & Wilcox briefing Mr Larry Brazel of counsel. 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 Personal Injury Commission (the Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Document (ALD) lodged by the respondent dated 3 December 2021, and
(d)    ALD lodged by the respondent dated 23 December 2021.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

As indicated above the issue in dispute concerns the appropriate assessment of Mr Philpott’s ability to earn.
It was common ground that the applicant suffered a psychiatric injury when he was employed by the respondent between July 2018 and 25 March 2019.
He was paid weekly compensation on the basis…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Philpott v Australian Plays Transform

Details

AGLC: Philpott v Australian Plays Transform [2022] NSWPIC 96
Case: [2022] NSWPIC 96
Decision Date: 4 March 2022

CaseChat Overview and Summary

In the case of Philpott v Australian Plays Transform, the applicant, Mr. Philpott, sought to challenge the assessment of his work capacity by Australian Plays Transform. The dispute centred on the assessment's conclusion that Mr. Philpott was capable of undertaking suitable employment as a teacher for 26 hours per week. The matter was heard and determined in the Personal Injury Commission of New South Wales.

The primary legal issue before the court was whether the assessment of Mr. Philpott's earning capacity, as determined by Australian Plays Transform, was flawed. Specifically, the applicant argued that the assessment should be halved due to the substantial amount of preparation time required for teaching, which was estimated to constitute approximately half of a teacher's working hours. This argument was supported by a University of Sydney report, which highlighted the significant time commitment involved in preparing for face-to-face teaching.

In dismissing the application, the court held that the Personal Injury Commission does not possess the jurisdiction to alter the mandated rates of pay. The court emphasised that it was not within their purview to modify the assessment of earning capacity based on subjective perceptions of the amount of preparation time required for teaching. Consequently, the court confirmed the work capacity assessment as conducted by Australian Plays Transform, and the application was dismissed in its entirety.

No further orders were made by the court, as the dismissal of the application resolved the matter at hand. The court's decision underscored the importance of adhering to the established framework for determining work capacity assessments and the limited role of the Personal Injury Commission in reviewing such assessments.

Orders