Philpott v Australian Plays Transform
[2022] NSWPIC 96
•4 March 2022
| 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 he had no current capacity until he received the s 78 notice of 26 May 2021, which advised him that his payment was to be reduced by $1,184.30 to leave him with a weekly entitlement to compensation of $649.20.
This assessment was based on a Vocational Assessment Report dated 30 September 2019 prepared by Ms Vritika Chandra[1].
[1] Reply p 26.
Ms Chandra noted that Mr Philpott presented as motivated to find employment as soon as possible. The certification by his general practitioner (GP) Dr Man was of some capacity to work between 9 August 2019 and 9 September 2019 for six hours per day, five days per week, the certificate noting Mr Philipott was certified as being fit for three months work. It is common ground for the purposes of this dispute that Mr Philpott is able to work for 26 hours per week.
Mr Philpott’s educational history and employment history were then set out confirming the details Mr Philpott gave in his statement of 16 April 2019. It speaks to Mr Philpott’s international reputation that when he was first appointed as the respondent’s Artistic Director/Chief Executive Officer on 4 July 2018, he was in fact resident in Paris. The role was accepted on the basis that he would work remotely one day per week whilst he completed his residency there.[2]
[2] ARD p 3.
Mr Philpott’s education history and employment history as recorded by Ms Chandra were as follows:[3]
[3] Reply p 29.
“EDUCATION
Education
MFA Screen Writing VCA School of Film and Television, 2018- present Fulbright Professional Playwriting Scholar, 2014-15
Playwrights Studio National Institute of Dramatic Arts, 2003
Post-graduate Diploma of Directing, Victorian College of the Arts, 1999
Diploma of Education (with merit),University of Sydney, 1995
Bachelor of Arts (English Literature/Theatre Studies), University of NSW, 1994
Training / courses Completed
NESA accreditation
NSW department of casual teaching
Literacy
Mr Phillpott self-reported very high literacy skills. This is consistent with
his profession, educational history and presentation
Computer Literacy
Mr Phillpott self-reported high computer literacy skills. This is consistent
with his educational history
Licences
Mr Phillpott reported that he has a valid driver's licence.
Mr Phillpott reported that his is NESA accredited and holds a current NSW casual teaching approval number
EMPLOYMENT HISTORY
Dates
Employer
John title
Role description
2017 [sic] - 2019
Playwright Australia
Artistic Director/ CEO
Overseeing all aspects
2019 of the artistic production of the organisation, such
as assessing and
selecting the performances that will be
shown, recruiting actors
and performers, setting
production schedules as
well managing budgets.
2000 - 2019
Various theatre companies, film and television
Writer
Prepare and edit scripts for a wide range of television, film and
theatre companies
2007 - 2018
Various employers including; Red stich theatre, griffin theatre company, playwright's foundation, the lark play development
centre, check point
theatre, Kansas state
university, Newington
college
Writer in residence
A writer holding a temporary residential post in an academic establishment, in order to share their professional insights
March 2015
University of Southern Alaska
Guest Lecturer in playwriting
lecture planning, preparation and
research. contact and
teaching time with
students. checking and
assessing students'
work. encouraging
personal development
via tutorial or pastoral
work.
Jan – February 2015
K. State University, Manhattan
Teacher of undergraduate Drama students
lecture planning, preparation and
research. contact and
teaching time with
students. checking and
assessing students'
work. encouraging
personal development
via tutorial or pastoral
work.
2006 - 2015
Various employers including; Interplay festival, international emerging playwrights Europe, National Young Writers’ studio, Sydney for
Arts start program,
Sydney theatre
company
Tutor for writers
Assist students learn, reviewing content with them, explaining how to improve on writing. Checking completed work.
2006 - 2008
Sydney Secondary College
Drama teacher
Plan and implement coherent, well sequenced
teaching and
learning programs in
Drama.
Use a range of teaching
strategies to deliver
Drama teaching
programs that are
responsive to the
learning strengths and
needs of students.
1996 - 1998
Port Hacking High School
Drama teacher
Plan and implement coherent, well sequenced
teaching and
learning programs in
Drama.
Use a range of teaching
strategies to deliver
Drama teaching
programs that are
responsive to the
learning strengths and
needs of students.
Ms Chandra recorded that Mr Philpott was interested in returning to work in creative writing or teaching roles. She noted that he had recently joined a choir and was also a volunteer in helping with the homeless. He had some acting experience and was ready to obtain employment in terms of his then current certificate of capacity.
Ms Chandra advised that the following three jobs were suitable:
· secondary school teacher;
· drama teacher, and
· book or script editor.
Ms Chandra noted that she did not have the approval of Dr Man, who was Mr Philpott’s GP, at that stage.
In the s 78 Notice of 26 May 2021 it was noted that Dr Man had by then certified Mr Philpott as being fit for some type of employment for 26 hours per week without restriction. The Notice advised that the three vocational options identified by Ms Chandra constituted suitable employment. The Notice said:[4]
“At Work Occupational Health and Safety completed a Labour Market Analysis on 20 August 2020 and identifies that role of Secondary School Teacher as a suitable employment option for you. We have confirmed based on your transferable skills in addition to your previous roles that you have the skills and experience to undertake the role of a Secondary School Teacher. Employer contacts within the Labour Market Analysis confirmed that this role is within your restrictions and capacity as stated on your WorkCover Certificate of Capacity. Specifically, the employer contact at the Australian Performing Arts Grammar School confirmed that you have the necessary qualifications, skills and extensive work experience suited for the role.
Dr Elspeth Man has provided approval on 12 August 2020 that the role of Secondary School Teacher is a suitable employment option for you.”
[4] Reply p 3.
A Notice was issued under s 287A on 16 August 2021, following a request for a review. The Notice said, inter alia:[5]
“The information provided by At Work Occupational Health and Safety in their Labour Market Analysis report dated 20/08/2020 outlines that you would be capable of earning $1,184.30 per week (based off $45.55 per hour) … in the role of Secondary School Teacher at 26 hours per week. We note this is based on potential earnings with Shore School, not the Australian Arts Grammar School ($47.50 per hour), as was identified in the decision dated 20/08/2020 Accordingly, we are satisfied that the amount of $1,184.30 represents the amount that you would be capable of earning in suitable employment, pursuant to section 43(1)(c) of the 1987 Act.
We note your concerns that there are a very few employment options to match your training, accreditation, or expertise and advise that the assessment took into account your qualifications and experience in discussions with the prospective employers and they considered you were a suitable candidate for the roles.”
[5] ARD p 60.
The Notice referred to Dr Man’s certification that she had upgraded Mr Philpott’s capacity to 26 hours per week since Mr Philpott’s appeal to a Medical Appeal Panel had found that he suffered a 7% whole person impairment on 15 December 2020.
That opinion by Dr Man was confirmed in a report of 4 October 2021 by Mr Murray Smith, Senior Rehabilitation Consultant, of the Workers Health Centre. Mr Smith was retained by
Mr Philpott.Mr Smith noted the following employment since Mr Philpott’s return from Paris:[6]
“• 2020-2022: Writer in residence- to create a play with Year 11 and 12, Newington and PLC Croydon.
• 2019-2021: Writer in school, Newtown High School of the Performing Arts.
• 2019-2020: Writer in residence- to create a play with Year 10 Wenona, Sydney.
• 2019: Full day writing workshop Orara High School as part of Bellingen Writers’ Festival.
• 2019: Writing masterclasses for Year 12 Drama at St Catherine’s, Sydney..”
[6] ARD p 93.
Further evidence of Mr Philpott’s determination to find work following his injury was given by the rehabilitation consultants assigned to his case.
In a rehabilitation progress report dated 1 October 2020, the consultant, Ms Valentina Grasevski, noted:[7]
“In discussions with Mr Philpott he has reported that he is undertaking casual teaching work with Newton High School as required in the subjects of English and Drama.
Mr Philpott has advised that he may be applying for a permanent position within the school when a vacancy does arise. He mentioned that he has spoken with the Principal who has advised him that the role on offer would be a full time position as such he would need medical clearance to apply for the position. Mr Philpott stated that he is uncertain regarding his application given his current capacity..”[7] Reply p 69.
In a further progress report dated 17 August 2021, Ms Grasevski noted that:[8]
“…… Mr Philpott advised that he remains completing a 10 week teaching term at Newtown High School and will continue to undertake this teaching until the end of the term. Mr Philpot reported that he is completing teaching online due to the Covid restrictions and is uncertain as whether he will be offered further casual teaching at the commencement of term 4 of school.”
[8] Reply p 81.
In the respondent’s ALD lodged on 3 December 2021, an offer of employment from
St Catherine’s School dated 29 September 2021 was lodged and on 5 October 2021Mr Philpott accepted that offer[9]. The employment was as a temporary drama artist in residence on a part time basis. The duration of the contract was for one school term.[9] At p 79.
It can be seen that Mr Philpott has applied himself to finding work from time to time since his injury, and the issue for determination before me devolves into a question of whether the teaching position identified in the original vocational assessment report of 30 September 2019 and confirmed in Mr Philpott’s vocational assessment report from Mr Smith on 4 October 2021, accurately assesses Mr Philpott’s current earning capacity.
The argument as to the relevance of preparation time was first raised by Mr Philpott in an addendum to his further statement of 14 September 2020 when he was discussing the findings of the Medical Appeal Panel.
Mr Philpott said[10]:
[10] ARD p 28.
“…4. It is also undisputed that the maximum hours I should work are 26 hours per week but, given I am going to be teaching no evaluation has considered how this 26 hours is accounted for.
5. The decision made by EML does not take into account the way a teachers time is allocated.
6. The non-face-to-face hours for a secondary school Drama teacher include admin, meetings duties, training, planning are outlined below:
• research, reading and planning for each hour of face-to-face teaching.
• assessing and marking each class's work, setting and marking exams, supervising exams.
• completing detailed reports for over 150 students twice a year
• fulfilling a range of school administration obligations such as reporting nonattendance,
welfare concerns and updates on DET policies
• responding to emails from parents and following up with calls.
• Documenting this contact in a teacher’s journal.
• fulfilling obligations re mandatory reporting and keeping up with policy changes
• managing student behaviour issues and nonattendance- putting student learning contracts in place, overseeing detentions and documenting concerns
• liaising with other teachers in your faculty regularly as well as with learning support staff to support a range of student learning needs.
• detailed reporting on a range of welfare matters for which you are legally accountable.
• attending and conversing with parents at parent teacher nights which can be up to 4 hours on 18 evenings in year.
• attending live performance in the evenings with students as most aren’t performed during the day.
• attending school camps of up to 5 nights away from home with no additional remuneration or time in lieu.
• working on school co-curricular performing arts activities like theatre productions which can involve hundreds of additional unpaid hours.
• the requirement to be at school before and after class as well as to be present for meetings regardless of whether you are teaching on the particular day.
• attending staff and faculty meetings both on a weekly basis.
• maintaining an awareness of specific medical needs of all students [up to 200 kids], ensuring you have a current first aid certificate and are up to date up-to-date with training as per government regulations with anaphylaxis, accident and emergency training etc
I have attached a document provided by the NSW Government Department of Education which states that a full-time secondary teacher's maximum face-to-face load teaching is 20hours and 40 minutes a week, however the additional duties and the time these duties take, as explained an more detail below are clearly hours of work which should be included in the decision since I would be unable to fulfil any teaching role without doing the work described in each of the components.
The Sydney University Report to the NSW Teachers Federation states that teachers are working an average of 54 hours per week (43 hours at school and 11 hours at home) due to the increasing administrative demands on them to meet compliance standards. If NSW teachers are working an average of 54 hours per week, they are doing 34 hours in addition to the 20 hours and 40 minutes of face-to-face teaching required since for every hour of face to-face teaching, the report suggest that an average of 2.16 hours of preparation work and administration work is being done by NSW teachers.
Applying the findings of this report, I have the capacity to do up to 26 hours paid work per week assuming the maximum is 38. Given the slowness of my work rate since the injury and the reality of the extra work anyone does when they begin employment in a new workplace, I will probably need to exceed 26 hours.
If we apply the average hours worked by a teacher [54] to my capacity [26] it is 54:26.
Where the average work hours for a teacher work are calculated in the context of work covers definition of a week then instead of 54;26, it becomes 38;18. Taking into account the assumption that I will need to do the same hours as any other teacher that are not face to face hours, in order to do the 26 hours agreed as my capacity I would do 9.95 face to face hours and the remainder of the time would be spent doing the work described above.
Given the unique nature of teaching and widely documented evidence of hours teachers must allocate, the calculations made in the review of my capacity are incorrect as they assume 26 hours of teaching to be the total amount of my work for the week.”
This theme was taken up by Mr Smith in his vocational assessment report of 4 October 2021. Mr Smith in his first report again confirmed that he had contacted Dr Man. He said[11]:
“Contact was made with Mr Philpott’s Nominated Treating Doctor on 24 September 2021. Dr. Man confirmed Mr Philpott’s diagnosis and indicated that based on the psychiatrist and psychologist reports including her medical opinion, that Mr Philpott will be unlikely to achieve an upgrade in capacity to be fit for some type of work for his pre-injury hours. Dr. Man also confirmed her approval of the 3 vocational options identified which is based on Mr Philpott’s medical condition. Dr. Man further confirmed that
Mr Philpott’s current capacity of 26 hours per week if he was to pursue a teaching role, will include preparation time for classes etc.”[11] ARD p 90.
Mr Smith then explored the question of how much of a teacher’s time is spent in preparation and how much in face-to-face teaching the students. He said:
“Workers Health Centre contacted both the Techers Federation and the Independent Education Union regarding teaching requirements for teachers in both the public and private education systems. They confirmed that teachers are employed either full time, part time or casually. Full time teachers are employed for 35 hours per week based on 7 hours per day and part time and casual teachers are employed at either 7 or 3.5 hours per day. A 7 hour working day includes face to face teaching and paid class preparation time.”
Mr Smith added a supplementary report to his Work Capacity Review, also dated 4 October 2021. He was asked to advise on the following question: [12]
“4. Considering the additional hours required of a teacher in respect to planning and
administrative tasks, what do you believe Mr Philpott’s realistic capacity is in respect to a teaching role.”
[12] ARD p 118.
Mr Smith said:
“Based on the Understanding Work in Schools report 2018 by The University of Sydney:
Teachers on average undertake face-to-face teaching for 4.13 hours per day for a 7-hour day.
Teachers are paid for 7 hours per day which equates to 2.87 hours of paid preparation time.
Considering the ratio of 2.16 hours per 1 hour of face-to-face teaching time this equates to 8.93 hours per day in total preparation time. This results in an additional 6.06 hours per day of unpaid preparation time. As a result, a teacher spends 13.06 hours per day in total of face-to-face teaching time, as well as paid and unpaid preparation time. Based on Mr Philpott’s current
capacity of 26 hours which includes teaching and preparation time, he has the capacity to work:
26 hours per week divided by 13.06 hours per day, equating to approximately 2 days per week of paid employment.”
Mr Smith was of the opinion that although Mr Philpott had approval to work as a school teacher from NESA and approval to work as a casual school teacher from the Department of Education, he only possessed a 1995 Diploma of Education and subsequently to obtain employment as a secondary school teacher Mr Philpott will now need a Bachelor of Secondary Education.
Mr Smith also noted that the job vacancies identified were for full time positions except for those schools who indicated that casual positions were available but no indication was given as to how many hours of work would be guaranteed.
Although this advice was the subject of submissions from counsel, the primary question for determination is the calculation of the accepted capacity to earn in the light of the number of hours Mr Philpott agrees he is able to work.
SUBMISSIONS
The respondent’s submissions were prepared by Mr Brazel of counsel. He referred to the dispute notices that indicated that a secondary school teacher was suitable employment within the certification indicated by Dr Man.
Mr Brazel noted that at the time the s 78 notice was issued on 26 May 2021 the calculations were made according to s 78 of the Workers Compensation Act 1987 (1987 Act) and stated that since 21 September 2021 Mr Philpott’s entitlement was regulated by s 38.
I was referred to the relevant statutory provisions regarding the definition of suitable employment (s 32A of the 1987 Act) and work capacity assessments and decisions (s 43 and 43A). I was also referred to schedule 3(9). Mr Brazel also referred to the relevant legislation governing the assessment of weekly compensation.
Mr Brazel then addressed the vocational assessment report obtained by Mr Philpott, noting that Mr Smith was not briefed with a copy of the vocational assessment report of
Ms Chandra. Mr Brazel also observed that Mr Smith’s report relied heavily on the report commissioned by the University of Sydney “Understanding Work In Schools” which was commissioned by the NSW Teacher’s Federation.Mr Brazel submitted that it could be assumed that the University of Sydney report was prepared as a part of a campaign by the Teachers Federation for higher wages.
The weight given to the report should be questioned, particularly in view of the fact that it concerned the position of a full-time teacher and took no account that casual teaching would be associated with lower administration duties and higher wages, Mr Brazel said. He also noted that Mr Smith’s report did not nominate casual teaching rates.
Another matter going to the weight to be given to that report, Mr Brazel submitted, was the fact that only 11% of respondents to the survey on which it was based, were part time employees.
Mr Brazel noted that whilst Mr Smith’s report acknowledged that Mr Philpott had approval to work as a casual schooler by NESA, Mr Smith did not suggest that Mr Philpott could not do that work, nor did he say that Mr Philpott needed a change in his qualifications.
Mr Brazel also made submissions regarding drama teachers, which, although one of the recommended jobs, is not the primary issue for determination. Mr Brazel submitted that although the drama teacher position appeared to be conditional upon the hours increasing from 26 to 38, Mr Philpott’s qualifications were not regarded as being unsuitable.
Mr Brazel referred to the concept of “suitable employment”. He submitted that there should be no dispute that the suitable duties are those identified by Ms Chandra, and that the position of secondary teacher for 26 hours per week was suitable.
Mr Brazel noted that in any event, Mr Philpott has been undertaking teaching and writing work, as the evidence demonstrated.
Mr Brazel referred to the employment that Mr Philpott had in fact engaged in with Newtown High School and at St Catherine’s School. He submitted that none of the employers contacted by Ms Chandra in appendix 1 of her report were concerned with Mr Philpott’s qualifications. Mr Brazel submitted that Mr Philpott had previously worked as a classroom teacher so was suitably qualified for the job.
Mr Brazel submitted that the question of whether the proposed employment included preparation time or not was not something that the Commission had to determine.
Mr Brazel then referred to the bank statements that had been produced by Mr Philpott pursuant to a Notice to Produce which were lodged in the respondent’s ALD.
An analysis of those statements revealed, Mr Brazel submitted, that the applicant had a number of sources of income in the three month period for which the statements were produced. They showed that Mr Philpott was paying tax and superannuation and has an ABN as well.
Mr Brazel kindly attached a table of income received from different schools from September 2021 and 28 October 2021. It showed that Mr Philpott received various sums from different schools during that period and that accordingly over that period was earning $1,077 pw net to which there was a further sum from an entity called “Theatre work”. That converted to $1,360 gross which Mr Brazel noted was more than the $1,184.30 figure estimated in the report by Ms Chandra.
Mr Brazel submitted that it was difficult to reconcile the amounts in the table of income with the weekly declarations made by Mr Philpott in the respondent’s further ALD dated 23 December 2021 setting out the various statutory declarations of income by Mr Philpott to iCare.
Mr Brazel described the weekly declarations therein for the weeks of 6 September 221 and 6 December 2021 as being difficult to reconcile and “puzzling”. It was submitted that if nothing else, they showed that Mr Philpott was able to work the hours that were demonstrated in those declarations.
It followed that the bank statements and statutory declarations were clear evidence of
Mr Philpott’s ability to earn and reflective of Ms Chandra’s work capacity decision.
Applicant’s submissions
The submissions of Mr Philpott were lodged by Mr Lachlan Robison of counsel.
Mr Robison submitted that the real issue in dispute related to the manner in which the respondent assessed Mr Philpott’s weekly entitlements insofar as they impinged upon the recommendation that work as a teacher for 26 hours per week.
The dispute concerned an allegation that the respondent had not taken into account the unpaid work which a teacher had to do in addition to standing in front of a classroom actually giving the lesson. The number of hours in the classroom, it was argued, could not be equated with capacity in terms of s 43 of the 1987 Act. The assessment should include the out of classroom work to arrive at a reasonable assessment of entitlements.
Mr Robison submitted that this approach was consistent with the “legal orthodoxy of statutory interpretation and with common sense”. I read with interest Mr Robison’s footnote as to the historical allusions to application of common sense.
Mr Robison referred to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 384 in submitting that the words of a statutory provision should be given the meaning that the legislature is taken to have intended them to have. Mr Robison submitted that the workers compensation legislation is beneficial and accordingly points of ambiguity should be resolved in favour of the worker.
Mr Robison kindly referred me to authority for that proposition, which is now well established.
Mr Robinson referred to the long title of the 1987 Act, the operative provision of s 9(1) and the provisions of s 33.He submitted that, subject to any formula in the legislation (which he conceded did exist), the legislative intent “must primarily be to achieve restitutio in integrum to compensate an injured worker for the actual loss suffered by reason of the injury”.
Mr Robison allowed that statutory departures from that maxim included the definition of “suitable employment” in s 32A, and the equation set out in s 37 (and presumably, s 38).
Mr Robison said:“However, no provision requires or permits a failure to take into account the reality that teacher much prepare for lessons.”
Mr Robinson submitted that common sense should govern the assessment of weekly benefits, save for statutory exceptions.
In dealing with the factual issues Mr Robison submitted that there was no major medical contest in the case, and that the consensus was that the applicant was fit to work for 26 hours per week.
Mr Robison submitted that the issue was as to how that consensus was to be interpreted in the context of teaching.
I was referred to the opinions of Dr Takyar, certification of the GP Dr Man and the work capacity assessment report of Mr Smith.Mr Robison also referred to the report of
Dr Bertucen, the respondent’s medico-legal expert, as to the hours Mr Philpott could work.Mr Robison relied on the submissions made by Mr Philpott himself (which I have reproduced above). They stressed the fact that included in any estimate of an ability to work as a teacher had to be the recognition that preparation time was needed in order to actually teach a class.
Mr Robison referred to the University of Sydney report to the NSW Teachers Federation and the discussion therein of the dichotomy between preparation and actual class work.
Mr Robison submitted that a “fair synthesis” of the material was that if the applicant had a capacity to work for 26 hours per week, then he had a capacity for face-to-face teaching of about half that and the award in his favour should reflect the same.
He submitted that additionally the Christmas holiday period should be compensable as if the applicant were totally incapacitated, because the schools were closed in the Christmas period.
With regard to the respondent’s submissions, Mr Robison submitted that the speculation regarding motivation for the report was not supported because of the evidence that the report collated in the form of statistical data. The report would assist me to make a more accurate factual determination than might otherwise be available by “merely allowing for ‘common sense’ for matters in which juridical notice can be taken”.
Mr Robison submitted that the assertion that the applicant would not only be paid for face-to-face teaching but also for preparation had no evidentiary foundation and was contrary to the report of the University of Sydney.
Mr Robison submitted the purpose of that report was to “highlight the unpaid work which teachers do”.
Mr Robison submitted that in any event even if the hours were paid, the applicant would not be able to do 26 hours of teaching per week and additional hours of unpaid work in order to prepare.
The applicant’s total capacity Mr Robison submitted, was 26 hours per week and the number of face-to-face hours which he could undertake in the classroom was therefore less, as
I understood his submission.With regard to the evidence of the suitable income shown by the bank statements,
Mr Robison submitted that they should be approached with care as they were based on higher casual rates of pay. He submitted that casual staff did not have the responsibilities outside the classroom to some extent as a permanent member.Mr Robison submitted that the award “should increase the amount of compensation by double” excluding the holiday period for which I would be able to find that Mr Philpott was totally incapacitated.
Submissions in reply
Mr Brazel submitted that there was nothing equivocal about the interpretation of the principles applicable to the essential dispute in the case and therefore the question of beneficial interpretation did not arise.
Mr Brazel said that the definition of suitable employment is set out in s 32A and the evidence showed that full time teachers are paid for 35 hours per week but only required to teach a face-to-face classes of 20 hours and 40 minutes per week according to the “school days fact sheet”.
Mr Brazel submitted that the maxim restitutio in integrum had no application within the workers compensation scheme. The purpose of the scheme was to provide a level of benefits in accordance with the legislation.
Mr Brazel argued that it was not correct to assert that Mr Philpott had been out of the teaching sphere for many years, as was asserted. The evidence shows that Mr Philpott has, since his injury, been working in schools as set out in the evidence.
Mr Brazel submitted that it was not a fair synthesis of the material to say that the applicant could only work for 13 hours. He submitted that the applicant can be paid for 26 hours even if his face-to-face teaching was for less time.
Mr Brazel submitted that Mr Philpott should not be treated as a totally incapacity worker during the holidays as it ignored the distinction between permanent and casual employees,
I understood Mr Brazel to say as casual employees are paid at the higher rate to compensate for the fact that they would not get holiday pay.
DISCUSSION
Section 32A provides relevantly:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited-
(a) having regard to-
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of-
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.
Section 43 work capacity decisions by insurers provides:
“(1) The following decisions of an insurer are work capacity decisions-
(a)a decision about a worker’s current work capacity,
(b) a decision about what constitutes suitable employment for a worker,
(c)a decision about the amount an injured worker is able to earn in suitable employment,
(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
(e)a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
(f)any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).
(2) The following decisions are not work capacity decisions—
(a)a decision to dispute liability for weekly payments of compensation,
(b)a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.
(3) (Repealed)”
Section 44A work capacity assessment provides:
“(1) An insurer is to conduct a work capacity assessment of an injured worker when required to do so by this Act or the Workers Compensation Guidelines and may conduct a work capacity assessment at any other time.
(2) A work capacity assessment is an assessment of an injured worker’s current work capacity, conducted in accordance with the Workers Compensation Guidelines.
(3) A work capacity assessment is not necessary for the making of a work capacity decision by an insurer.
(4) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it.
(5) An insurer may in accordance with the Workers Compensation Guidelines require a worker to attend for and participate in any assessment that is reasonably necessary for the purposes of the conduct of a work capacity assessment. Such an assessment can include an examination by a medical practitioner or other health care professional.
(6) If a worker refuses to attend an assessment under this section or the assessment does not take place because of the worker’s failure to properly participate in it, the worker’s right to weekly payments is suspended until the assessment has taken place.”
Section 38(3) of the 1987 Act provides:
“(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if-
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.”
I was grateful for the submissions made in this interesting matter.
I regret however that I am unable to accede to the logic that underpinned Mr Philpott’s submissions regarding the dichotomy between preparation for class and teaching in class itself.
The University of Sydney report was a helpful analysis of the way in which teachers employed their time, and it is axiomatic that a teacher would need preparation time in order to present to his/her classes, not to mention the additional work of marking papers and other functions not associated with the classroom teaching itself.
Beyond noting the content of that report however, the Commission is unable to make any finding as to the proper rate of pay to be paid to the State’s teachers beyond that mandated. The Commission can only apply the rates of pay that exist to cover all the duties of teachers, whether in class or not. I was not referred to any provision of any award that made such a distinction. I would in any event approach a report such as the University of Sydney report with some circumspection as it is impossible to distil all the facts and circumstances from the graphs and appendixes that accompanied that report. I appreciate the arguments advanced as to the interpretation of the report, but this jurisdiction is not the appropriate form to debate its virtues or shortcomings.
As the parties agreed, the issue before me is discrete. There is unanimity between the rehabilitation experts that the nominated employment of a secondary school teacher constitutes suitable employment, in terms of s 43(1)(b). There has been no dispute that
Mr Philpott’s current work capacity is limited to 26 hours per week, pursuant to s 43(1)(a).The dispute before me is as to the amount Mr Philpott can earn in the agreed suitable employment. Even then, there has been no argument that the amount of $1,184.30 is what Mr Philpott would earn teaching for 26 hours per week. The argument is that the nominated amount does not fairly represent the division of work required between face-to-face teaching and preparation for the same. Mr Philpott pleads that the University of Sydney report shows that 26 hours of teaching also entails a preparation time of approximately half, and that therefore his assessed ability to earn in that profession should be adjusted to reflect that reality.
I reject that interpretation of the interpretation of s 43(1)(c). There has been no submission that the assessment of $1,134.30 does not accurately reflect the applicable rate. Mr Robison advanced an argument that a proper reading of the workers compensation legislation showed an intent by Parliament primarily to achieve restitutio in integrum to injured workers. That has never been the case, as his concessions illustrated. Restitutio in integrum is a maxim appropriate to the Superior Courts.
For these reasons the application is dismissed, and the work capacity decision is confirmed. The effect of this ruling is that Mr Philpott should be paid the sum of $649.20 per week from 6 September 2021 to the date his entitlement expired pursuant to s 37 on 27 September 2021.
As Mr Philpott has a current work capacity, his entitlement to weekly payment of compensation is dependant on the provisions of s 38(3) of the 1987 Act, which I have reproduced above. There is no evidence as to whether the insurer has accepted liability pursuant to those provisions, and accordingly the award in Mr Philpott’s favour will cease on 27 September 2021.
Decision
The work capacity decision of 26 May 2021 is confirmed.
The respondent will pay the applicant the sum of $649.20 per week from 6 September 2021 to 27 September 2021.
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