Secretary, Department of Education and Communities v Oparah - [2015] NSWWCCPD 67

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Secretary, Department of Education and Communities v Oparah [2015] NSWWCCPD 67
APPELLANT:	Secretary, Department of Education and Communities
RESPONDENT:	David Oparah
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-1154/15
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	12 August 2015
DATE OF APPEAL DECISION:	30 November 2015
SUBJECT MATTER OF DECISION:	No current work capacity; suitable employment; s 32A of the Workers Compensation Act 1987; need for rehabilitation plan; no evidence
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Federation Law
ORDERS MADE ON APPEAL:	1. Paragraph two of the Arbitrator’s Certificate of Determination of 12 August 2015 is revoked and the quantification of the applicant worker’s entitlement to weekly compensation is remitted to a different Arbitrator for re-determination. 2. Paragraphs one and three of the Arbitrator’s Certificate of Determination of 12 August 2015 are confirmed.

INTRODUCTION

This appeal concerns the meaning of the phrase “suitable employment” in s 32A of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

The respondent worker, David Oparah, was a maths teacher at Narrabeen Sports High School (Narrabeen High). As a result of bullying and racist behaviour in the course of his employment as a teacher with the appellant, Secretary, Department of Education and Communities, he suffered a psychological injury. He claimed weekly compensation from 23 August 2015 to date and continuing, together with compensation for medical and related expenses.
The appellant denied liability on various grounds that are not relevant to the current appeal. The Arbitrator held that Mr Oparah suffered a psychological injury and that his employment had been a substantial contributing factor to that injury. She said that the appellant’s defence under s 11A of the 1987 Act “lack[ed] credibility”. Mr Oparah was therefore entitled to compensation.
Dealing with Mr Oparah’s entitlement to weekly compensation, the Arbitrator noted the evidence from his general practitioner, Dr Gunawardena, that from 29 December 2014 he was fit for teaching for two days per week “at any school other than Narrabeen High School” and that, from 29 January 2015, he was fit for the same work, on the same terms, for three days per week.
The Arbitrator held that, in the circumstances of this case, acceptance of Dr Gunawardena’s evidence was “too simplistic an approach” to the issue of incapacity. She noted that Dr Gunawardena, Mr Jupp, the treating psychologist, Dr Dinnen, consultant psychiatrist qualified by Mr Oparah, and Dr Synnott, consultant psychiatrist who saw Mr Oparah on behalf of an income protection insurer, all considered that Mr Oparah would be capable of teaching on a gradual return to work plan at another school. She added that Dr Synnott, in particular, urged the implementation of a rehabilitation plan as soon as possible to facilitate Mr Oparah’s return to work.
The Arbitrator accepted that it was the appellant that had the capacity to offer Mr Oparah teaching for two or three days per week and that it was the appellant that had the capacity to implement an injury management plan or rehabilitation plan, but had not done so. This placed Mr Oparah in an “invidious position”. That was because, as the Arbitrator understood it, Mr Oparah remained “contracted” to the appellant, he having not retired or been dismissed. Therefore, he was “not in a position to approach say a private or Catholic school seeking employment while this contract exists” ([63]).
As s 35 of the 1987 Act requires consideration of the amount Mr Oparah is “able to earn in suitable employment”, and since he was not capable of earning anything in a teaching capacity until the appellant chose to rehabilitate him in accordance with his medical advice, the Arbitrator found that he was unable to earn anything in suitable employment, given his medical restrictions and “the industrial limitations” ([64]) placed on him by the appellant.
Adopting a “realistic assessment” (Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [60]) of Mr Oparah’s current work capacity, the Arbitrator concluded that Mr Oparah had no current work capacity. She acknowledged that Dr Gunawardena’s medical certificate was one matter to consider, but in reality, “because of the constraints imposed by his contract with the [appellant]”, any suggestion that Mr Oparah could engage in suitable employment elsewhere, notwithstanding that he has a current capacity for work, was “artificial” ([67]). She added, also at [67]:
“In reality, there is no labour market in Australia that [Mr Oparah] can currently enter, such that it is difficult to see that he has a capacity to earn in suitable employment. In other words, the practical reality is that he has no current work capacity.” (emphasis in original)
For these reasons, the Arbitrator concluded that Mr Oparah was not able to earn anything in suitable employment, given both his medical restrictions and what Mr Oparah described as the “industrial limitations” imposed on him by the appellant. Consistent with these findings, the Commission issued a Certificate of Determination on 12 August 2015 in the following terms:
“1.The applicant suffered a primary psychological injury arising out of and in the course of his employment to which his employment was a substantial contributing factor.
2.Award for the applicant at the rate of $1,607.50 per week (95 per cent of PIAWE) from 23 August 2013 to 22 November 2013 pursuant to section 36 and thereafter at the rate of $1,353.68 per week (80 per cent of PIAWE) to date and continuing pursuant to section 37.
3.The respondent is to pay the applicant’s reasonably incurred section 60 expenses.”
The appellant has challenged the Arbitrator’s finding that Mr Oparah has no current work capacity and the quantum of the award for weekly compensation based on that finding.

ON THE PAPERS

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 Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Mr Oparah has no current work capacity;
(b) finding that Mr Oparah was not in a position to approach a private or Catholic school, and
(c) failing to properly apply s 32A of the 1987 Act.

LEGISLATION

Section 32A of the 1987 Act defines suitable employment as follows:
“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.”

SUBMISSIONS

Counsel for the appellant, Ms Goodman, submitted that, in light of the medical evidence summarised at [4]–[5] above, it was not open to the Arbitrator to find that, as and from 30 April 2014 (the date of Dr Synnott’s report), Mr Oparah had no current work capacity. That was because the evidence was to the effect that Mr Oparah was able to return to teaching work at a different school.
Ms Goodman submitted that there was no evidence that Mr Oparah remained under a contract of service with the appellant and that, in any event, there was no evidence that he could not seek or obtain employment as a teacher elsewhere while he had a contract with the appellant.
Last, Ms Goodman contended that the Arbitrator erred in her approach to s 32A because no current work capacity “exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment”. In the present case, there is no physical restriction on Mr Oparah returning to work.
Mr Oparah’s employability is restricted in that he cannot return to the school where he was teaching when he was injured. However, he can return to work at another school and Dr Synnott encouraged him to do so, but on a graduated return to work plan with the assistance of a rehabilitation provider. He therefore does have a current work capacity in accordance with s 32A, because he is able to return to teaching duties at another school.
Ms Goodman contended that the fact that the appellant has not provided Mr Oparah with rehabilitation does not mean that he has no current work capacity. In any event, it was only Dr Synnott who recommended that Mr Oparah’s return to work be assisted by a rehabilitation provider.
She said the Arbitrator’s task was to determine, having regard to the matters listed in the definition of suitable employment, if Mr Oparah was able to return to work in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work is available or is of a type or nature that is generally available in the employment market.
Teaching work, so it was submitted, is a real job in employment for which Mr Oparah is suited. Further, suitable employment in Mr Oparah’s case is not necessarily restricted to teaching work.
Therefore, the Arbitrator should have found that Mr Oparah had, as and from 29 December 2014, capacity for teaching duties two days per week at any school other than Narrabeen High and three days per week from 25 January 2015 to date and the award should be varied to reflect that situation.
Counsel for Mr Oparah, Mr Stockley, conceded that the Arbitrator’s conclusion as to constraints that may have been imposed on him by his contract with the appellant were not the subject of evidence, but contended that that error has not affected the outcome. This was because the suitable employment identified by each of the specialists was qualified by conditions “purely within the remit of the appellant to satisfy, namely the supervised rehabilitation of [Mr Oparah] to a safe workplace”. Absent the willingness of the appellant to provide those conditions, there was no workplace for Mr Oparah to participate in.
Mr Stockley made the point that s 32A specifically refers to suitability having regard to, among other things, “any plan or document prepared as part of the return to work planning process” and “any occupational rehabilitation services that are being, or have been, provided to or for the worker”. In the present case, Mr Oparah has not had the benefit of any “dispensation or assistance in the nature of a return to work plan or rehabilitation”. For this reason, there is no job for him within the definition of suitable employment.
Even accepting that such a hypothetical job exists, the question becomes what amount Mr Oparah “is able to earn in that job” (s 35(1)). There was no suggestion that there is a hypothetical market for someone with Mr Oparah’s skill set and medical limitation, other than in the guided return to work recommended by the treating and qualified specialists. There was no evidence as to the market for part time teachers outside the employ of the appellant, let alone for a teacher in the post injury state in which Mr Oparah finds himself.
In the event that error was found, Mr Stockley submitted that the matter was suitable for re‑determination by a Presidential member.
Ms Goodman filed no submissions in reply.

DISCUSSION AND FINDINGS

It is convenient to first review the medical evidence on incapacity in more detail. Mr Oparah first saw Dr Gunawardena about the matters relevant to this claim on 24 August 2013. Dr Gunawardena diagnosed him to be suffering from anxiety, depression and insomnia. Dr Gunawardena certified Mr Oparah to have no current work capacity from 23 August 2013 to 2 November 2014 and referred him to Mr Jupp, treating psychologist.
Mr Jupp saw Mr Oparah on 7 September 2013. In his report to Dr Gunawardena of 9 September 2013, Mr Jupp said that psychometric testing showed high levels of anxiety, depression and stress and symptoms, including difficulties concentrating, general restlessness, sleep disturbance, persistent worry, lack of self-esteem and malaise. The prognosis for recovery and return to work at Narrabeen High was “very poor”. In contrast, “the prognosis for recovery by a return to work as a teacher in another school [was] excellent”.
Dr Synnott assessed Mr Oparah on 30 April 2014. He took a consistent history of Mr Oparah’s symptoms developing as a result of events at work and diagnosed him to have an adjustment disorder with anxiety and depressed mood (noting that a diagnosis of major depressive disorder with prominent anxiety would be equally valid). He recorded that Mr Oparah had applied for a transfer, which had not taken effect. After eight months off work, Mr Oparah’s symptoms were said to be “settling”.
As recorded by Dr Synnott, Mr Oparah had suffered, to a significant degree over the previous 15 months: depression; thoughts of suicide (not acted on); sleep difficulties (thinking and worrying) and nightmares (most nights he would have a nightmare about the work situation); anxiety and nervousness and difficulty relaxing; impaired concentration and memory; loss of motivation and interest; reduced socialising; fluctuating appetite, and irritability. These symptoms continued to the time of Dr Synnott’s examination.
When asked by Dr Synnott about returning to work on a “GRTWP” (graduated return to work program), Mr Oparah initially said that he did not feel ready to do it at that stage. After Dr Synnott discussed the principles of a graduated return to work program and Mr Oparah confronting his anxiety and avoidant behaviour, Mr Oparah said that he was prepared to consider a graduated return to work program at a different school. He acknowledged that he had lost confidence and self-esteem and that he was somewhat self-doubting, the experience (at Narrabeen High) having had a “profoundly negative impact on him”.
Under “Summary and Assessment”, Dr Synnott wrote that Mr Oparah was “somewhat apprehensive and self-doubting regarding his work capacity”. Under no circumstances was Mr Oparah prepared to return to his pre-injury worksite, “because of the industrial situation”. He was waiting for his transfer to come through. He believed he was good at his job (maths teacher). The industrial situation was the problem, not Mr Oparah’s capacity to do the job.
Dr Synnott felt that a psychiatric diagnosis was a “simplistic and incomplete conceptualisation of the situation”. Mr Oparah described a loss of confidence, and a loss of self-esteem and considerable self-doubt, with a “negative mindset (about his work capacity) and maladaptive behaviour (quite avoidant)”. Dr Synnott added:
“In my opinion, it is important not to overly ‘medicalise’ the situation and to expect too much from psychological therapy or psychotropic medication; his psychological symptoms developed in the context of an industrial situation – and it requires an industrial solution.
In my opinion, the prudent option is to have a transfer to a different school – he will never return to his pre-injury worksite (he has made this quite clear).
In my opinion, the most appropriate ‘treatment’ is the paradigm of the rehabilitation model; that is to reintroduce him to work on a GRTWP – as soon as possible; he has been off work for far too long and it is counterproductive and unhelpful for him to stay off work.
His apprehension, anxiety and self-doubt are not a contraindication to returning to work; he cannot ‘wait to get better’ before he returns to work – he has to return to work ‘in order to get better’; recommending a return to work on a GRTWP is not ignoring or trivialising his symptoms – it is part of a widely recognised paradigm for dealing with situations like this.”
Dr Synnott recommended that, “[w]ith the assistance of a rehabilitation provider”, Mr Oparah return to work as a maths teacher at an alternative school on a graduated return to work program; three hours a day, three days per week, for two weeks; four hours a day, four days a week, for two weeks; four hours a day, five days a week, for two weeks; (and then) return to full-time duties. He thought the prognosis should be “good”, but noted that there may be an “unsettled time” when Mr Oparah first returns to work. There was “no psychiatric contraindication or incapacity to [Mr Oparah] returning to work at an alternative school as a maths teacher – the sooner the better; this would be on a [graduated return to work program] with a rehabilitation provider”.
In his report of 20 October 2014, Mr Jupp diagnosed Mr Oparah as suffering from an “Adjustment disorder Mixed type”, having been caused by events at work with the appellant. He said that Mr Oparah “would have been able to return to his ordinary duties at a different school campus other than Narrabeen”. However, that “when this was not facilitated he became substantially more distressed to the point that he is now likely to need rehabilitation to enable his return to work”.
Dr Gunawardena reported on 3 November 2014 that Mr Oparah’s prognosis for a full recovery and return to work as a teacher at another school was “excellent”. However, the prognosis for recovery and return to work at Narrabeen High was “very poor, potentially leading to permanent impairment”. He said that Mr Oparah had been unfit since 23 August 2013, but had improved and had the capacity to perform “suitable duties 2 days per week as a teacher elsewhere other than Narrabeen Sports High School”.
Dr Gunawardena certified Mr Oparah to have a capacity for “some type of employment”, for two days per week teaching duties at “any school (other than Narrabeen High School)”, from 29 December 2014 to 26 January 2015 and for three days per week from 25 January 2015 to 22 February 2015. Dr Gunawardena ticked “no” to the question of whether he recommended “referral to [a] workplace rehabilitation provider”.
Dr Dinnen examined Mr Oparah on 27 November 2014 and reported on 10 December 2014. After setting out a history of events at work that led to Mr Oparah’s condition, an adjustment disorder with anxiety and depressed mood, and noting that Dr Gunawardena had certified Mr Oparah fit to return to work for two days per week at any other school, Dr Dinnen set out Mr Oparah’s continuing symptoms, which had improved compared to when he first stopped work.

His continuing symptoms, as noted by Dr Dinnen, included difficulty enjoying social activity, unsettled sleep (waking three times a night, perhaps twice per week), feeling sad (rated four out of 10 instead of nine out of 10 as it had been when he ceased work), being afraid at times (rated four out of 10 instead of seven out of 10 when he ceased work). For some time he was afraid to talk to people. It is unclear if that was a continuing problem at the time of Dr Dinnen’s examination.
Dr Dinnen concluded that, given that Mr Oparah is highly qualified (having an undergraduate degree from Ghana (Bachelor of Arts/Economics and a Diploma of Education) and a Master degree from an Australian university), and had taught at another school prior to Narrabeen High, “the prognosis would be favourable if he were now to teach elsewhere”, but he would continue to be sensitive to any suggestion of racial discrimination or abuse. Under “Your opinion as to our client’s fitness for work”, Dr Dinnen said, “[h]e is currently certified fit to work two days a week as a teacher”. Given the question asked, it seems reasonable to conclude that Dr Dinnen agreed with Dr Gunawardena’s certification.
As the above analysis demonstrates, all medical experts agreed that, from at least December 2014, Mr Oparah was fit to return to part-time work at a school other than Narrabeen High. However, only Dr Synnott and Mr Jupp referred to the need for that return to work to be facilitated through a rehabilitation plan. Dr Gunawardena expressly rejected the need for referral to a rehabilitation provider and Dr Dinnen did not consider that question.
Dr Synnott and Mr Jupp considered the involvement of a rehabilitation provider in such a way as to strongly suggest that such intervention would be a necessary requirement for a successful return to work. Mr Jupp talked of the “likely” need for rehabilitation “to enable [Mr Oparah’s] return to work”. Dr Synnott, observing Mr Oparah’s apprehension and self-doubt (about returning to work), recommended a return to work, but only “[w]ith the assistance of a rehabilitation provider”, noting that the most appropriate treatment was “the paradigm of the rehabilitation model”.
On the issue of the need for involvement of a rehabilitation provider, the Arbitrator did not resolve the conflict between the views of Dr Gunawardena, expressed in a medical certificate without explanation, on the one hand, and the views of Dr Synnott and Mr Jupp, on the other. She said, at [61]–[62]:
“[61] In short, most of the doctors suggested such a plan or in the alternative, a gradual return to work commencing on a part time basis elsewhere.

[62]   I accept [Mr Oparah’s] submission that it is the [appellant] which has the capacity to offer [Mr Oparah] teaching work for two or three days per week, and it is the [appellant] which has the capacity to implement an injury management plan or a rehabilitation plan. It has not done so.

[63]   This places [Mr Oparah] in an invidious position. As I understand it, he remains contracted to the [appellant]. He has not retired nor has he been dismissed. He remains under a contract of service with the [appellant]. He is not in a position to approach say a private or Catholic school seeking employment while this contract exists.

[64]   In addition, as [Mr Oparah] submits, and rightly in my view, section 35 then requires a consideration of the amount that he is able to earn in suitable employment. Since he is not capable of earning anything in a teaching capacity until the [appellant] chooses to rehabilitate him in accordance with his medical advice, he is unable to earn anything in suitable employment given his medical restrictions and the industrial limitations placed on him by the [appellant]. In short, he has no current work capacity.”
The above analysis involves an implied acceptance of the evidence from Dr Synnott and Mr Jupp to the effect that a rehabilitation plan is a requirement for any return to work, without any consideration of that issue and without any consideration of Dr Gunawardena’s express opinion to the contrary or Dr Dinnen’s evidence (accepting that it could be argued that Dr Dinnen’s silence on the issue could, in context, be interpreted as agreement with Dr Gunawardena’s opinion).
Before noting that it was the appellant who has the capacity to implement an injury management plan or a rehabilitation plan, the Arbitrator had to determine whether she accepted the evidence from Dr Synnott and Mr Jupp, or the evidence of Dr Gunawardena and Dr Dinnen. She did not do that.
Instead she assumed that Mr Oparah is not capable of earning anything in a teaching capacity until the respondent chooses to rehabilitate him in accordance with his medical advice and the “industrial limitations placed on him” (which the Arbitrator said prevent him working in a private or Catholic school) are removed. As previously noted, Mr Stockley has conceded that there was no evidence of such industrial limitations and the Arbitrator erred on that point.
However, Mr Stockley has sought to support the Arbitrator’s conclusion by assuming that each of the specialists qualified their recommended return to work with the condition that such a return be accompanied by supervised rehabilitation, a condition purely within the remit of the appellant. Therefore, Mr Oparah has no capacity to earn because the condition precedent set by the specialists has not been met. That assumption was incorrect. Only Dr Synnott and Mr Jupp expressed that view.
Ms Goodman has assumed that, on the evidence, the only conclusion open to the Arbitrator was that Mr Oparah was and is “able to return to teaching work at a different school”, initially two days per week and then three days per week, without any rehabilitation or injury management plan. That assumption is also incorrect. It has ignored the opinions from Dr Synnott and Mr Jupp and assumed that the Arbitrator had no option but to accept the opinion of Dr Gunawardena and Dr Dinnen.
While Mr Stockley has invited me to re-determine the issue, in view of the parties’ submissions on appeal, which have essentially assumed, without any proper analysis, that the whole of the medical evidence favours his or its position, it is not open for me to conduct that re-determination.
If it is determined that the preferred view is that of Dr Synnott and Mr Jupp, which is that Mr Oparah is not able to return to work without a rehabilitation plan, it is open to find that, in the absence of such a plan (which the appellant is under a legal obligation to provide (see Pt 2 of the 1998 Act)), Mr Oparah has no current work capacity. That is because, in determining if employment is “suitable employment”, as defined in s 32A, regard may be had to, among other things, any plan prepared as part of the return to work planning process, and any occupational rehabilitation services that are being, or have been, provided to or for the worker. Thus, just as the existence of a return to work plan or rehabilitation plan is relevant, so too is the absence of such a plan in circumstances where one has been recommended by an appropriately qualified expert as a condition for a return to work.
The submission that, in Mr Oparah’s case, suitable employment is not necessarily restricted to teaching work was not a submission made at the arbitration and was not supported by any reasoning or evidence. None of the experts suggested that Mr Oparah has a capacity for work outside his chosen profession and, in the absence of such evidence, the submission is of limited relevance.

CONCLUSION

The Arbitrator erred in determining, in the absence of evidence, that Mr Oparah is not in a position to approach a private or Catholic school. However, whether that error has affected the outcome depends on which of the competing experts’ opinions is accepted as to the need for a rehabilitation plan to facilitate a return to work. That issue, and the quantum of Mr Oparah’s entitlement to weekly compensation, must be re-determined before a different Arbitrator.

DECISION

Paragraph two of the Arbitrator’s Certificate of Determination of 12 August 2015 is revoked and the quantification of the applicant worker’s entitlement to weekly compensation is remitted to a different Arbitrator for re-determination.
Paragraphs one and three of the Arbitrator’s Certificate of Determination of 12 August 2015 are confirmed.

Bill Roche
Deputy President

30 November 2015

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.