Secretary, Department of Education v Carter
[2022] NSWPICPD 1
•10 January 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Secretary, Department of Education v Carter [2022] NSWPICPD 1 |
| APPELLANT: | Secretary, Department of Education |
| RESPONDENT: | Kelley Carter |
| INSURER: | Allianz – TMF |
| FILE NUMBER: | A1-857/21 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| DATE OF APPEAL DECISION: | 10 January 2022 |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 8 April 2021 is amended to substitute the figure “$731.15” for the figure “$555.77”. 2. The Certificate of Determination dated 8 April 2021 is otherwise confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – Alleged factual error; application of State of New South Wales v Seedsman [2000] NSWCA 119; dispute notices, application of Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; duty to give adequate reasons; current work capacity; application of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr S Grant, counsel | |
| Hall & Willcox Lawyers | |
| Respondent: | |
| Ms K Driscoll, solicitor | |
| Carroll & O’Dea Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr P Young |
| DATE OF MEMBER’S DECISION: | 8 April 2021 |
INTRODUCTION AND BACKGROUND
Kelley Carter (the respondent) settled in Australia at an age of 21, married, had children, and studied part-time as a mature age student to become a teacher. She taught from 2000, originally in the Queensland system. She obtained a Masters Degree in Special Education. On moving to New South Wales she taught in an “emotionally disturbed unit” at Mittagong before moving to Vincentia Public School in March 2007. She said she enjoyed her work at Vincentia Public School. In 2019 she was made a ‘relief from face to face’ (RFF) teacher, during which she taught two days per week and took the other three weekdays as leave without pay.[1]
[1] Respondent’s statement 10/2/21 (statement), [7]–[16], Application to Resolve a Dispute (ARD), p 1; Dr Canaris’ report 2/10/20, ARD, p 26.
On 24 November 2019 the respondent was on long service leave, holidaying with her parents in Victoria, when she received a text message from “a colleague”. It informed her that there was a rumour “going around the School” that she “had been suspended for slapping a student across the face”. The respondent stated this was “completely untrue” and she requested that the principal “immediately investigate the matter”. The respondent was later informed that the alleged incident occurred on 14 August 2019 and was reported during the previous term, although she was not informed at that time. The respondent stated she had simply given ‘lines’ to a student who was not working as directed.[2]
[2] Statement, [18]–[27], ARD pp 1–2.
The respondent stated she had been working at the school “oblivious to the rumours” and she felt humiliated. She said Vincentia is a “small community” and she felt that people were taking about her. She saw a general practitioner in Melbourne while she was travelling with her parents and saw Dr Dias (her general practitioner) on her return home. She was due to resume work on 10 December 2019. Dr Dias put her off work and she did not resume thereafter.[3]
[3] Statement, [28]–[33], ARD pp 2–3.
Allianz (the insurer) initially accepted liability for the respondent’s claim in respect of psychological injury. The insurer arranged for the respondent to be assessed by Dr Miller, psychiatrist. Allianz issued a dispute notice dated 28 October 2020.[4] It put in issue whether the respondent had suffered ‘injury’ “as defined by DSM-V or ICD-10”, arising out of or in the course of employment, whether s 9A of the Workers Compensation Act 1987 (the 1987 Act) was satisfied, and the entitlement to weekly compensation and medical expenses. The respondent, in correspondence dated 17 November 2020,[5] sought to review the decision relying on a report of a psychiatrist, Dr Canaris, dated 2 October 2020.[6] Allianz confirmed its decision in correspondence dated 30 November 2020.[7]
[4] ARD, pp 15–18.
[5] ARD, pp 19–21.
[6] ARD, pp 26–33.
[7] ARD, pp 22–25.
The current proceedings were commenced by way of the ARD registered on 16 February 2021. The matter was listed for arbitration hearing on 7 April 2021. Mr Stockley appeared for the respondent and Mr Grant for the appellant. The Member noted that the respondent’s pre-injury average weekly earnings (PIAWE) were agreed at $913.94. Neither party sought to adduce oral evidence. Both counsel addressed. Following a short break the Member delivered an ex tempore decision. He made a weekly award for the respondent pursuant to s 37 of the 1987 Act at the rate of $555.77 from 22 November 2020 to date and continuing. He made a general order for the payment of the respondent’s medical and related expenses pursuant to s 60 of the 1987 Act.
THE MEMBER’S REASONS
The Member recorded that voluntary compensation was paid from “shortly after 24 November 2019 until 21 November 2020”.[8] He noted that 80% of the PIAWE figure was $741.02.[9]
[8] Transcript of reasons, 7/4/21 (reasons), T 2.14–2.16.
[9] Reasons, T 3.5–3.8.
The Member said there was no doubt the respondent was subject to “false rumours in the course of her employment”. He said the extent of these was not addressed in detail by either the principal or the assistant principal. He said the respondent’s evidence suggested tension between the respondent and Ms Hopwood, the principal. He said there was evidence from Ms Hopwood that she was bullied by the respondent, but there was no merit in considering this further. He said the rumour about the respondent was “conceded” and “on the evidence very little was done to deal with that rumour”.[10] He said that, in a case dealing with psychological injury, it was not necessary to have a strict diagnosis within DSM-V. The diagnostic manual is a guide, subject to clinical judgment, not considered to be mandatory. He referred to Transfield Services (Aust) Pty Ltd v Wicks.[11]
[10] Reasons, T 4.30–5.16.
[11] [2011] NSWWCCPD 63 (Wicks).
The Member said that Dr Miller concluded there had not been a psychological injury within the meaning of DSM-V. The Member said that Dr Miller’s reasoning was that “because there was no DSM-V diagnosis of psychological or psychiatric injury the [respondent’s] injury was not compensable”. The Member said this was, “of course, not the legal test”. He said that “for that reason, amongst others”, he had to “discount Dr Miller’s opinion” that there was no psychiatric injury.[12]
[12] Reasons, T 6.1–24.
The Member turned to the report of Dr Canaris dated 2 October 2020. The doctor diagnosed adjustment disorder and anxiety and said employment was the main contributing factor. He referred to the rumour and the respondent’s “dissatisfaction with the way in which that rumour had been dealt with by the school”. He commented that Dr Miller also referred to a perception on the respondent’s part that that the respondent’s “reputation had been maligned”. He referred to the decision of Attorney General’s Department v K, in which Roche AP said that an arbitrator, dealing with an allegation of psychological injury, “had to determine if the events complained of actually occurred and, if they did occur, whether the worker’s injury resulted from them”.[13] The Member described this as “the necessary causal test”.[14]
[13] [2010] NSWWCCPD 76; 8 DDCR 120, [58].
[14] Reasons, T 7.4–8.
The Member referred to a reference in Dr Miller’s report to the respondent having sustained “an emotional upset in the context of an industrial dispute”. He said:
“The nature of the industrial dispute has not been explained by Dr Miller or anyone else but it could relate to any one of a number of factors including the [respondent’s] concern about the rumour and the [respondent’s] concern about the way in which her superiors had dealt with it.”[15]
[15] Reasons, T 7.10–15.
The Member referred to the symptoms as recorded by Dr Canaris.[16] He referred to the symptoms recorded by Dr Miller (in the appellant’s case) which did not include anxiety. He described this as inconsistent with the respondent’s statement and the matters recorded by Dr Canaris and Dr Dias.[17]
[16] Reasons, T 8.1–17.
[17] Reasons, T 9.4–11.
The Member referred to the appellant’s submission, that the reason the respondent was working two days per week at the time of injury was that her husband and daughter had died within 12 months. The Member described this as a ‘red herring’. Her reason for working two days per week prior to the injury was not an issue, save for any suggestion that she was “carrying some underlying psychological injury”. He said there was no medical evidence which attributed the respondent’s psychological condition to anything that happened prior to November 2019.[18]
[18] Reasons, T 9.13–29.
The Member referred to the decision in Thazin Aye v Workcover Authority of New South Wales in which it was said that mere emotional impulse is not compensable.[19] He referred to the fact that both Dr Canaris and Dr Dias arrived at a DSM V diagnosis. He described it as ‘common sense’ that the respondent would react as she did when confronted with the very serious allegation of slapping a child’s face.[20]
[19] (1995) 12 NSWCCR 340.
[20] Reasons, T 9.31–10.15.
The Member turned to the issue of the respondent’s capacity. He described her as having the “usual educational qualifications”, additionally she held a Masters degree and was a teacher of “some seniority”. The Member described the respondent as a “gifted” writer which would give her “some advantage in terms of taking up suitable employment”. He referred to the certificate of Dr Dias, on 24 January 2020, that the respondent “may need temporary work for six weeks somewhere else”. A report from Thrive Psychology on 19 August 2020 said the respondent wanted to go back to school “once [the principal] was held accountable”.
The Member drew from the above that the respondent had “some capacity for work” from “around early to mid 2020”. The Member concluded that the respondent had no capacity for work up to 24 January 2020. He concluded that thereafter she “might be capable in some suitable employment … of performing work at least of the order of four hours per week”. He took the figure of $741.02 (80%of PIAWE) from which he deducted “a quarter” of that figure ($185.25) leaving $555.77. He made an award in that amount pursuant to s 37 of the 1987 Act. He made a general order for s 60 expenses.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE NATURE OF AN APPEAL PURSUANT TO S 352
This appeal is brought pursuant to s 352 of the 1998 Act, subs (5) of which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd[21] Roche DP, applying Whiteley Muir & Zwanenberg Ltd v Kerr[22] to the appeal process pursuant to s 352, said:
“(a) A [member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c) It may be shown that [a member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong’.”[23]
[21] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), [19].
[22] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[23] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[24]
[24] [2020] NSWCA 54, [20].
In Northern New South Wales Health Network v Heggie,Sackville AJA, dealing with the scope of such appeals, said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[25]
[25] [2013] NSWCA 255, [72].
THE GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Member’s decision in preferring the diagnosis of Dr Canaris to that of Dr Miller was affected by an error of fact and of law by stating that Dr Miller had applied an incorrect test. (Ground No. 1)
(b) The Member by preferring the diagnosis of Dr Canaris to that of Dr Miller by discounting Dr Miller's opinion because of the use of the term “Industrial dispute” resulted in his decision being affected by an error of fact. (Ground No. 2)
(c) The Member by dealing with the evidence relating to the existence or otherwise of a pre-existing psychological/psychiatric condition as he did resulted in his decision being affected by an error of fact. (Ground No. 3)
(d) The Member’s finding that Mrs Carter had a capacity to earn i[n] suitable employment [of] $185.25 resulted in his decision being affected by an error of fact and law. (Ground No. 4)
GROUND NO. 1
The Member's decision in preferring the diagnosis of Dr Canaris to that of Dr Miller was affected by an error of fact and of law by stating that Dr Miller had applied an incorrect test.
Appellant’s submissions
The appellant refers to the scope of an appeal pursuant to s 352(5) of the 1998 Act, noting the authority of Raulston (see [20] above). It repeats this submission in respect of each of its four grounds.
The appellant submits the Member approached the ‘injury’ question by assessing the reports of Dr Canaris and Dr Miller. It refers to the reasons at T 6.5 where the Member said that Dr Miller’s reference, to whether there was a ‘compensable’ injury, suggested the doctor considered that there needed to be an applicable DSM-V injury for it to be compensable. This, according to the Member, was not the legal test. The appellant points out that both Dr Dias and Dr Canaris applied DSM-V without criticism. It submits the use of the term ‘compensable’ in the circumstances was of no consequence and the Member erred in considering otherwise. It submits the consequence of this was that insufficient weight was given to the views of Dr Miller compared with Dr Canaris. There was factual error.[26]
[26] Appellant’s submissions (Ground No. 1), [1]–[11].
Respondent’s submissions
The respondent submits that both Dr Miller and the Member confused the roles of the medical expert and the decision maker. Identification of whether an event was compensable (a legal concept) was a matter for the Member, not the expert witness. The respondent submits the Member’s identification of this “erroneous approach” was probably “immaterial” to the determination of liability. Dr Canaris identified a psychiatric condition falling within DSM-V in any event.[27]
Consideration
The medical reports
[27] Respondent’s submissions, [3]–[5].
Dr Miller’s report
It is apparent, from Dr Miller’s report,[28] that the doctor had additional information regarding the background to the “rumour” and associated events. Dr Miller’s report quotes from a report of Ms Choda, a psychologist, dated 21 February 2020. The summary of the “Issues” recorded in Dr Miller’s report indicates the respondent had “behavioural issues with the student who allegedly started the rumour, for the entire school year of 2019”. It recorded this student told her friends that the respondent “was suspended for slapping her”. Material from Dr Dias described the respondent meeting a parent at the local shopping centre, and the parent saying the school newsletter described the respondent as being “on leave”. The respondent referred to taking this as “confirmation to the school community that she is suspended due to this allegation”.[29] The history referred to the newsletter reference as “damaging her reputation” and an indication that the matter “still has not been addressed appropriately and adequately by the school”.
[28] Reply to Application to Resolve a Dispute (Reply), pp 50–65.
[29] Reply, pp 53–54.
The summary of material in Dr Miller’s report includes reference to a report from Ms Cowan, a psychologist, dated 10 June 2020. It refers to discussion of the possibility of “temporary placement at an alternate school” and to resistance on the respondent’s part to “returning to her substantive role at her previous school”. It refers to Ms Cowan advising the respondent that “WorkCover is an inappropriate mechanism to management (sic) industry disputes of this nature”.[30] Dr Miller referred to a history that the respondent’s first husband died of pancreatic cancer, and that there were two children of the relationship. The doctor said it was “important to note” a letter from the principal of the Vincentia Public School referred to the respondent providing a medical certificate in 2018, which said that “due to the death of her daughter and husband within twelve months of each other, she works part-time”. The history described the respondent as working on part-time reduced hours from 2011.[31] Dr Miller described the death of the respondent’s daughter as something that was not disclosed to her.[32]
[30] Reply, p 54.
[31] Reply, p 60.
[32] Reply, pp 57–58.
Dr Miller by way of diagnosis said:
“Mrs Carter is not suffering from any compensable, work-related psychiatric injury as defined by DSM-V or ICD 10. She is experiencing emotional upset in the context of an industrial dispute.”
The doctor expressed this view on a number of occasions in the report. It was expanded at one point where the doctor said:
“As Mrs Carter is not suffering from any compensable, work-related psychiatric injury as defined by DSM-V or ICD 10, the question of the ‘whole and predominant cause’ of such a diagnosis, is a non sequitur. However, Mrs Carter is experiencing emotional impulse, anger, frustration, upset and litigation neurosis in the context of her perception that her reputation has been maligned.”[33]
[33] Reply, p 59.
Dr Miller said that “[f]rom a psychiatric perspective, Mrs Carter has the capacity to undertake her pre-injury employment as a teacher”.[34] Dr Miller also said:
“It is my opinion that without mediation between Mrs Carter and the School Principal, Ms Hopwood, Mrs Carter is unlikely to be able to overcome her perception that the school has not investigated the rumour. Unfortunately, I am inclined to agree with Mrs Carter that making these calls may have helped the child and her family to understand the falsehood of these rumours but these private telephone calls did not mitigate the ongoing rumour within the broader school community. Furthermore, as Vincentia is in and of itself a small community, Mrs Carter faced the genuine risk of having to confront these rumours in the broader community. Unfortunately, the rumour that a child would be slapped by a teacher is significant and I agree with Mrs Carter that such a rumour has the potential to destroy her career.”[35]
[34] Reply, p 63.
[35] Reply, p 62.
Dr Canaris’ report
Dr Canaris took a detailed history of the events surrounding the rumour and the respondent’s symptoms. By way of summary Dr Canaris said:
“Your client became acutely anxious after learning of a rumour in her school that she had been suspended after slapping a child. She immediately contacted her principal insisting that the rumour be addressed but says nothing was done much to her distress. In this setting, she has felt continuing anxiety very much focused on her self-consciousness as being perceived as the teacher that slapped a child. She feels her professional integrity has been impugned to the point that she no longer felt able to return to work. Her anxiety symptoms include rapid heart rate, tension in the body, difficulty concentrating, irritability, and insomnia associated with loss of libido. She is not on any antidepressant medication nor does she intend trying this. She has had six sessions with a psychologist but had not found them particularly useful.”[36]
[36] ARD, p 30.
Dr Canaris gave a diagnosis of “an adjustment disorder with anxiety”, which he said was “a direct consequence of her learning of the workplace rumour coupled with what she saw as her employer’s manifestly inadequate response to it”. He said the respondent’s employment with the appellant was “the main contributing factor to the onset of her adjustment disorder”.[37]
[37] ARD, p 31.
Dr Dias’ report
Dr Dias’ report dated 23 March 2020[38] dealt with diagnosis in the following fashion:
“1. She has anxiety and stress related to a[n] incident in work place.
2. She fulfils diagnostic criteria for Adjustment Disorder as per DSM-5 with anxiety.”
[38] ARD, p 34.
Discussion
The Member made reference to Wicks, in which Roche DP referred to the discussion by Spigelman CJ, in State of New South Wales v Seedsman,[39] on the use of DSM-IV (now DSM-V) in courts. Amongst the multiple passages quoted in Wicks which are relevant, I specifically note the following:
“DSM-IV is not a statutory formulation which a court must construe and decide whether the requirements are satisfied. It is, as its title suggests, a ‘diagnostic manual’ for clinical use. It contains within itself a number of explicit warnings against the kind of use to which the Appellant sought to put it and which emphasise that the criteria are only guidelines for professional judgment.”[40]
“As one commentator has noted:
‘The DSM represents guidelines that should be subjected to clinical judgment, adherence to the diagnostic criteria is not mandatory but advisory’. (Neal ‘The Pitfalls of Making a Categorical Diagnosis of Post Traumatic Stress Disorder in Personal Injury Litigation’ (1994) 34 Med, Science and the Law 117 at 121).”[41]
[39] [2000] NSWCA 119 (Seedsman).
[40] Seedsman, [114].
[41] Seedsman, [118].
Consistent with Seedsman, Roche DP in Wicks said:
“I accept that the DSM-IV is only a guide that is subject to clinical judgment, and that adherence to the diagnostic criteria is not mandatory but advisory.”[42]
[42] Wicks, [109].
Neither party submits this is an incorrect statement of principle.
Dr Miller repeatedly used the phrase “compensable, work-related psychiatric injury as defined by DSM-V or ICD 10” in her report, where the term appeared ten times. When asked to comment on matters relating to ‘injury’ the doctor employed the term as a descriptor of ‘injury’. Inherent in the phrase is the concept that compensable injury is to be defined by reference to DSM-V or ICD 10. On a fair reading of her report, Dr Miller dealt with the concept of ‘injury’ in a fashion inconsistent with what was said by the Court of Appeal in Seedsman (and followed in Wicks). The way in which the appellant couched its denial of ‘injury’ in its dispute notice (see [55] below) made it clear that whether there was an ‘injury’ within the meaning of DSM-V or ICD 10 was an inherent part of the defence on ‘injury’ that was advanced, based on the report of Dr Miller. I accept that this involved approaching the issue in a fashion inconsistent with Seedsman and Wicks. I accept that this involved the application on Dr Miller’s part of an inappropriate test. It was properly open to the Member to deal with Dr Miller’s opinion on the basis that its probative force was significantly reduced as a consequence.
The appellant submits that Dr Canaris and Dr Dias both referred to DSM-V and were not criticised because of this in the Member’s reasons.
Dr Canaris’ report describes the respondent’s presentation as “consistent with a diagnosis of an adjustment disorder with anxiety”. His report does not actually refer to DSM-V. Dr Canaris’ diagnosis falls within the criteria in DSM-V. Dr Canaris was asked to assess permanent impairment. The ‘NSW workers compensation guidelines for the evaluation of permanent impairment’ (4th ed. March 2021) (the guidelines) provide, in relation to ‘mental and behavioural disorders’, for assessment consistent with Ch 11 of the guidelines.[43] Chapter 11 provides, among other things, for assessment on scales which evaluate functional impairment (PIRS). Dr Canaris employed that method of assessing permanent impairment, which is not part of DSM-V, in compliance with the guidelines. The way in which Dr Canaris dealt with the occurrence of psychological injury was not inconsistent with generally accepted principles regarding the occurrence and assessment of psychological injury.
[43] Guidelines, cl 1.11. See also cll 1.21–1.22.
Dr Dias’ report dated 23 March 2020,[44] at its outset, describes the respondent as suffering from “anxiety and stress”. The doctor then states that the respondent “fulfills diagnostic criteria for Adjustment Disorder as per DSM-5 with anxiety”. The doctor then lists six symptoms to support this conclusion. There is nothing to suggest the doctor treated the guidelines as other than advisory. The Member’s criticism of Dr Miller’s report was not that it referred to DSM-V. Doctors do that regularly and appropriately. The criticism was that Dr Miller approached fulfillment of the criteria in DSM-V (or ICD 10) as mandatory rather than advisory.
[44] ARD, pp 34–35.
The primary reason given by the Member, for not accepting the opinion of Dr Miller, was consistent with what was said in Seedsman and was open to the Member.
The Member referred to the above difficulty with Dr Miller’s report as one of the reasons, “amongst others”, for discounting Dr Miller’s opinion (see [8] above). The Member gave a further reason, referred to at [11] above. The symptoms recorded by Dr Miller did not include anxiety. The Member referred to this disparity between the symptoms as recorded by Dr Dias and Dr Canaris, compared with those described by Dr Miller.[45] The Member described this as inconsistent with the respondent’s statement and with the matters recorded by Dr Canaris and Dr Dias.[46] This also supported the Member’s preference for the views of Dr Canaris and Dr Dias over those of Dr Miller.
[45] Reasons, T 8.22–32.
[46] Reasons, T 9.4–11.
Ground No. 1 fails.
GROUND NO. 2
The Member by preferring the diagnosis of Dr Canaris to that of Dr Miller by discounting Dr Miller's opinion because of the use of the term “Industrial dispute” resulted in his decision being affected by an error of fact.
Appellant’s submissions
The appellant submits the Member discounted Dr Miller’s diagnosis because of the doctor’s use of the term ‘industrial dispute’ (see [10] above). It submits the term was “simply a method of describing the dispute that had evolved” between the respondent and the appellant. It submits the term cannot be logically said to have influenced Dr Miller’s diagnosis. It submits use of the term devalued the weight given to Dr Miller’s opinion and alternatively gave unjustified weight to the opinion of Dr Canaris.[47]
[47] Appellant’s submissions, (Ground No. 2), [2]–[4].
Respondent’s submissions
The respondent submits the Member simply observed that Dr Miller’s use of the term ‘industrial dispute’ was unexplained. The respondent submits the appellant fails to identify any part of the reasoning that is argued to constitute the discounting of Dr Miller’s opinion on this basis.
Consideration
The Member’s discussion of the term ‘industrial dispute’ was very brief.[48] The term was raised by the appellant, which employed the term in its denial of ‘injury’ (see [55] below). The Member raised the term on the basis that Dr Miller had used it. The Member said the nature of the ‘industrial dispute’ “has not been explained by Dr Miller or anybody else”. He observed it “could relate to any one of a number of factors” including the rumour and how the rumour was dealt with by her superiors. The appellant’s submissions have not sought to identify any part of the reasoning that was dependent on the term. It has not sought to identify how use of the term was erroneous or had any impact on the result.
[48] Reasons, T 7.8–15. (References to the transcript of the reasons are to that dated 11/5/21, which is the later version and I infer that which was settled by the Member).
Ground No. 2 fails.
GROUND NO. 3
The Member by dealing with the evidence relating to the existence or otherwise of a pre-existing psychological/psychiatric condition as he did resulted in his decision being affected by an error of fact.
Appellant’s submissions
The appellant refers to the following passage from the Member’s reasons:
“The relevance of why she’s working two days per week is not in issue except to the extent that it might be suggested that she was carrying some underlying psychological injury.
If that were the case, I would expect to receive in this Commission some cogent medical evidence supporting that position. It seems to me that there is no medical evidence whatsoever which attributes the [respondent’s] psychological condition after November 2019 to anything that happened prior to that point in time.”[49]
[49] Reasons, T 9.19–29.
The appellant submits it can reasonably be assumed that the respondent gave no history of a condition prior to 2019 to either Dr Canaris or Dr Miller. If she had, their opinions might, it is submitted, be “quite different”. The appellant refers to Dr Smith’s report of 28 January 2020 where the doctor said:
“She [Dr Dias] understood that Ms Carter did have some pre-existing mental health issues related to her domestic circumstances which she was not at liberty to discuss, unrelated to work and she felt that that was probably the reason why she reduced from five days per week to two days per week of work.”[50]
[50] Reply, p 48.
The appellant submits the respondent was working two days per week prior to 2019 “for reasons which were unexplained by her”. It submits the respondent provided no evidence to refute the existence of a pre-existing condition; it could be “fairly assumed” she was aware of the contents of Dr Smith’s report.[51]
[51] Appellant’s submissions (Ground No. 3), [3]–[6].
The appellant submits Dr Smith’s report provides “cogent evidence of a pre-existing psychological disorder” which is not refuted by the respondent. It was unreasonable to expect that the appellant would refute such evidence. The appellant submits that such evidence was within the purview of the respondent. It submits the Member failed to deal with the unanswered evidence of Dr Smith regarding a possible pre-existing condition. The Member’s factual finding regarding the existence of a pre-existing condition is submitted to involve factual error.[52]
[52] Appellant’s submissions (Ground No. 3), [7]–[9].
Respondent’s submissions
The respondent submits that Dr Miller did not conclude that any pre-existing condition existed or was at play. The existence of such a condition did not form part of the appellant’s medicolegal opinion or its denial of liability. The respondent submits the only other reference to this matter was Dr Smith, who had not examined the respondent and based his opinion on what he understood Dr Dias to believe about the history. The respondent submits that whatever the Member concluded on the issue was “irrelevant to the notified issues” and had no bearing on the outcome.[53]
[53] Respondent’s submissions, [7]–[9].
The respondent refers to the appellant’s submission at first instance. She refers to the appellant’s submission, regarding why she worked two days per week, that “you’re left in the dark as to why, and you may wonder about that”. The respondent submits she had “nothing to explain”. The Member drew no inference from the appellant’s insinuation, and “gave the submission more attention than it deserved”. She submits there was no error in this regard. The respondent refers to the history recorded by Dr Canaris regarding the respondent’s previous bereavement and submits “[s]he was certainly not hiding it”.[54]
[54] Respondent’s submissions, [10]–[12].
Consideration
The appellant’s dispute notice dated 28 October 2020[55] raised whether the respondent suffered an injury arising out of employment, whether she suffered a psychological injury and whether s 9A of the 1987 Act was satisfied. It disputed the entitlement to weekly payments and medical expenses, consistent with its denial of ‘injury’. The description of the appellant’s reasons for its decision referred to Dr Miller’s report. It asserted the respondent had not sustained a psychological injury, but rather “emotional upset in the context of an industrial dispute”. It stated this did not meet the “threshold for a work related compensable psychiatric injury as defined by DSM-V or ICD-10”. That is, emotional upset does not constitute a psychological injury. The reasons in the notice did not raise the presence of a pre-existing psychiatric or psychological injury in any way. The Reply described the issues as “as per dispute notice(s) attached to the application”. It referred to “any other issues” in the printed form being that the respondent had “not suffered a psychological injury”, was “not incapacitated” and it indicated it would issue a Notice for Production of financial records. It added nothing going to pre-existing psychological problems.[56]
[55] ARD, pp 13–18.
[56] Reply (printed portion), p 2.
It is appropriate to note the frequently quoted passage from Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services dealing with dispute notices, in which Roche DP said:
“A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision. An obscure reference to a document attached to the notice, but dealing with a different issue to that identified in the notice, is not sufficient.”[57]
[57] [2007] NSWWCCPD 227, [45], see also [36].
The Member referred to the Court of Appeal decision in Thazin Aye v Workcover Authority of New South Wales,[58] which is authority that emotional upset is insufficient to constitute psychological injury.[59] That was the fundamental argument raised in the appellant’s notice disputing ‘injury’. The Member rejected the relevance of that authority on the facts. The Member said that there was evidence from the general practitioner (Dr Dias), a treating psychologist (Ms Cowen) and Dr Canaris, all of whom arrived at a DSM-V diagnosis. He additionally referred to the criticism to which the respondent had been exposed, when there was no evidence she had slapped a child across the face. The member described it as a matter of common sense that the respondent would react as she did. The Member correctly identified that the predominance of the medical evidence supported the respondent’s case (see [12] above). It was open to him to accept it, as he did. This dealt with the fundamental defence raised in the appellant’s dispute notice.
[58] (1995) 12 NSWCCR 340.
[59] Reasons, T 9.31–34.
The appellant’s submissions speculate that if the respondent had given a history of a prior condition to Dr Miller or Dr Canaris, their opinions may have been different. Dr Canaris recorded a history of the respondent’s first husband dying of pancreatic cancer and of her youngest daughter dying a year later. He recorded that she got through this “without needing antidepressants”.[60] This constituted a history of the previous bereavement that affected the respondent. It is consistent with a history of psychological difficulties associated with those events, with the respondent being able to get through the difficulties without antidepressants. As the respondent correctly submits, the respondent was “certainly not hiding it”.
[60] ARD, p 29.
Dr Miller’s report lists the material which was provided to her by way of background.[61] This included Dr Smith’s report dated 28 January 2020. Dr Smith’s report included reference to the doctor’s discussion with Dr Dias, the treating general practitioner.[62] Dr Smith’s report included:
“I fully discussed this matter with Dr Kokila Dias … the nominated treating doctor, on 24 January 2020.
She understood that Ms Carter did have some pre-existing mental health issues related to her domestic circumstances which she was not at liberty to discuss, unrelated to work and she felt that that was probably the reason why she reduced from five days per week to two days per week of work.”
[61] Reply, p 51.
[62] Reply, p 48.
There is a document in the index to the appellant’s Reply which is described as a statement of Janine Hopwood (the school principal), undated.[63] It is addressed “Dear Mohamad, Please find below my response to your email received Friday, June 5. Allianz questions:” It includes the following:
“Mrs Carter has been working on part-time LWOP since 2011.
In 2018 she provided a medical certificate stating that due to the death of her daughter and husband within twelve months of each other, she works part-time and still wants to be able to return to full-time work at a later date. The Doctor indicates he will review in December 2019.
I do not know of any review, Mrs Carter was granted part-time LWOP for 2020.”
[63] Reply, pp 19–21.
Dr Miller’s description of the material made available to her indicates that Mr Mohamad Houda was an injury management advisor. It is likely the document quoted in the preceding paragraph formed part of the material provided to Dr Miller, but because the document is inadequately described it is not possible to state this with certainty. At the least, the document was available to the appellant from before the Reply was lodged and could have been furnished to Dr Miller for comment had the appellant wished.
The respondent, addressing the Member, described the appellant’s submissions on this topic as “tantalising invitations to you based on nothing”.[64] The Member dealt with this issue briefly (see [49] above). He essentially dismissed the appellant’s argument on the basis that it was unsupported by medical evidence. This was consistent with the state of the evidence and was open to the Member. The Member did not err in the approach he took. It should be noted that the compensation claimed (and awarded) was calculated on the basis of PIAWE for the respondent’s earnings over two days per week, the basis on which she was employed at the time of injury.
[64] Transcript of proceedings, 7/4/21 (T2), T2 38.29–32.
The appellant had knowledge of the respondent’s reduced hours; it had been provided with a medical certificate which stated that this reduction related to the deaths of her first husband and her daughter (see [60] above). The appellant was on notice of “pre-existing mental health issues” that were unrelated to work (see [59] above). The appellant did not raise the presence of a pre-existing psychological condition as an issue in its defence of the matter in the dispute notice or the issues nominated in the Reply. The wording of Ground No. 3 is vague in the extreme. It complains of the Member dealing with the evidence “as he did”, without satisfactorily identifying what he did that involved error. It complains there was a resultant “error of fact” without satisfactorily identifying what this was. Ground No. 3 is without merit and fails.
GROUND NO. 4
The Member's finding that Mrs Carter had a capacity to earn i[n] suitable employment [of] $185.25 resulted in his decision being affected by an error of fact and law.
Appellant’s submissions
The appellant submits that PIAWE was agreed at $913.94 and 80% of that figure is $731.15, rather than the figure of $741.02 stated by the Member.[65]
[65] Appellant’s submissions (Ground 4), [2]–[3].
The appellant submits that, in finding the respondent had a capacity to work on the open labour market, the Member necessarily discounted the views of Dr Dias regarding incapacity. It follows the assessment of the ability to earn in suitable employment was dealt with by reference to the views of Dr Miller and Dr Canaris. The appellant submits the Member gave no reasons for his decision on incapacity. It is unknown what weight was given to the views of either of these doctors.[66]
[66] Appellant’s submissions (Ground 4), [4]–[6].
The appellant submits that ‘suitable employment’ is defined in s 32A of the 1987 Act. The weight given to the various indicia is unknown. The appellant submits the lack of exposed reasoning suggests the conclusion on this topic was “an unsubstantiated guess” and therefore an error of law.[67]
[67] Appellant’s submissions (Ground 4), [7].
The appellant submits that, if the Member’s approach to calculating earning capacity is held to be correct, the reduction on the basis of one quarter (reflecting her ability to earn in suitable employment) should be one quarter of the PIAWE figure, rather than one quarter of the PIAWE figure when reduced by 20%. It is submitted this would leave a figure of $502.67 per week rather than $555.77 which was awarded.
Respondent’s submissions
The respondent submits this is not a ground of appeal at all. It is expressed as a submission. It does not identify any alleged error of fact or law. It should be dismissed.[68]
[68] Respondent’s submissions, [13]–[15].
The respondent submits the balance of the submissions on this ground involve complaint about the inadequacy of the Member’s reasons. The respondent properly accepts that inadequacy of reasons constitutes an error of law.[69]
[69] Respondent’s submissions, [16].
The respondent makes submissions going to quantification of an award, which are potentially relevant to redetermination. Dr Dias certified there was no current capacity from 23 March 2020 to 1 March 2021. Dr Canaris considered the respondent would find non-teaching employment challenging and that she was unable to undertake employment in “the conventional structured sense”. It is submitted this does not translate to a capacity to perform a real job in the sense contemplated by the Act. The respondent refers to Wollongong Nursing Home Pty Ltd v Dewar.[70] She submits her “skill set does not translate to a capacity for a real job within the statutory formula”. The respondent submits the “arithmetical complaint” is without foundation, the 25%portion of the PIAWE figure was simply a ‘rule of thumb’, what was being assessed was the value of suitable employment.
[70] [2014] NSWWCCPD 55 (Dewar).
Legislation
‘Suitable employment’ is defined in s 32A of the 1987 Act:
“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 37 of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
‘Current weekly earnings’, ‘current work capacity’ and ‘no current work capacity’ are defined in cll 8 and 9 of Sch 3 of the 1987 Act:
“8 Meaning of ‘current weekly earnings’
Current weekly earnings, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a) the worker’s actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.
9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The decision in Dewar
Deputy President Roche, in Dewar, dealt with the definition of ‘suitable employment’, saying:
“58. However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited.’ (Roche DP’s emphasis).
59. The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.”
Consideration
The respondent’s first submission is that Ground No. 4 should be dismissed having regard to its form. The ground is expressed inappropriately. For reasons that follow, I am of the view that there is merit in the challenge to the weekly award on the basis of the adequacy of the reasons. I note ss 42 and 43 of the 2020 Act. It is appropriate, and consistent with those provisions of the legislation, that I deal with the subject matter of Ground No. 4 by reference to the submissions of the parties.
In Pollard v RRR Corporation Pty Ltd McColl JA engaged in a helpful summary of authorities dealing with the duty to give reasons. Her Honour referred to “not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them”.[71] This observation is relevant to the circumstances of the current matter. Her Honour also said:
“The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.”[72] (excluding references)
And:
“Because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses …”[73] (excluding references).
[71] [2009] NSWCA 110 (Pollard), [56].
[72] Pollard, [58].
[73] Pollard, [66].
The making of a weekly award in the current matter involved application of a statutory scheme, which included the definitions and authority set out above. The amount of detail that is required in dealing with this task will vary, depending on the facts and circumstances of the individual case. Whether the respondent did or did not have current work capacity depended on an assessment of whether she was able to return to work in either her pre-injury employment or in suitable employment. This involved consideration of whether there was a real job, in employment, for which she was suited.
The Member considered the respondent’s qualifications (a Masters degree in Special Education) and her skills and work experience (a “teacher of some seniority”). He referred to the respondent’s skills demonstrated in her critique, attached to the ARD, of Dr Miller’s report. He said the respondent was “a person who would be valuable in the open labour market as an employee”, with the proviso that this “may not be in the capacity of a primary school teacher or RFF teacher”. He referred to the certificates of capacity supplied by Dr Dias. He referred to the absence of vocational capacity assessments.[74] These are all matters falling within the definition of ‘suitable employment’ in s 32A of the 1987 Act. The Member referred to the respondent’s history in August 2020 that she “wanted to go back to school once Janine (the Principal) was held accountable”.
[74] Reasons, T 10.19–11.13.
The above led to the following conclusion, on whether the respondent had a capacity for ‘suitable employment’:
“I am thinking that the [respondent] might be capable in some suitable employment after 24 January 2020 of performing work at least of the order of four hours per week.”
Whether the respondent had a capacity for ‘suitable employment’, and if so to what extent, was a matter in issue between the parties. The respondent’s working background over approximately two decades was working as a teacher, accompanied by postgraduate studies in education. The Member did not find that she was fit to resume work in the teaching profession. He referred to the respondent’s skills by reference to her critique of Dr Miller’s report relating to her own case. Consistent with Dewar, it was necessary that the analysis include a consideration of whether the respondent was fit for a real job in employment to which she was suited. The Member’s reasons did not engage with this issue, nor with the medical evidence that was relevant to it. The Member’s assessment of the weekly entitlement is, in a general sense, consistent with an assessment that the respondent, who previously worked two days per week, had one quarter of this capacity removed by the found injury. The reasons do not expose the reasoning that led to this conclusion. The reasons are not adequate, having regard to the passages from Pollard quoted above.
It follows that Ground No. 4 succeeds. This constitutes an error of law. Both parties have made submissions going to assessment of the weekly entitlement, should the appeal succeed on that basis. It is appropriate that the discrete issue of the weekly entitlement be redetermined pursuant to s 352(6A) of the 1998 Act.
Redetermination
The medical evidence
Dr Dias
Dr Dias reported on 23 March 2020,[75] about eight months prior to the period at issue. The doctor referred to “anxiety and stress”, with a diagnosis of “Adjustment Disorder as per DSM‑5 with anxiety”. She referred to the diagnostic criteria, one of which was that “Once the stressor has terminated she should improve”. Dr Dias said there was “no current capacity at the moment. Rehab provider is needed to get the full picture about the issue by liaising with administrators of her work.” The doctor recommended psychological support and mediation. The material includes a large number of certificates of capacity, most of which predate the period at issue. A certificate dated 29 January 2021[76] certifies the respondent as having “no current capacity for any work from 30/01/21 to 01/03/21”. The “work related injury/disease” is described as “stress and anxiety”, with an injury date of 24 November 2019.
[75] ARD, pp 34–35.
[76] ARD, pp 276–278.
Dr Canaris
Dr Canaris reported on 2 October 2020.[77] He described the respondent as a “56-year-old married primary schoolteacher”. The history recorded the respondent saying: “When I think about school, the thought of going back to school is enough to make me hysterical …”. She described herself as being “robbed of my career – my profession”. She said she could not see herself back at the school again. She said she “felt the lack of any control over what had happened which left her feeling very unsafe”. She kept the house clean and spent time with her husband working with him on a property. She stated that although she was able to work with her husband on a property “she finds herself being all too easily side-tracked and feels overwhelmed by tasks that do not come automatically”. She cared for herself. She was not on medication. She had seen a psychologist six times but did not find it helpful. The history recorded:
“She cannot see herself teaching because of her lack of trust towards parents, students, and the executive speaking of her love of teaching being destroyed, she cannot see herself feeling safe in another teaching environment.”
[77] ARD, pp 26–33.
Other than teaching, the only occupational training she referred to was secretarial college after completing year 10 at school. She described anxiety symptoms. Dr Canaris diagnosed an adjustment disorder with anxiety. He said “[s]he is not well enough to work as a teacher because of her anxiety”. Dr Canaris said the respondent had “in all likelihood stabilised in that she is not receiving treatment”. The doctor described the respondent’s employability:
“I agree that she would find it very difficult to work again as a teacher. Her ability to work on a property renovation project with her husband suggests that she is capable of productive work. That said, she would find it challenging to find paid employment in a non-teaching job because of her extreme self-consciousness and embarrassment over the rumour started about her. She is likely to continue to feel the stigma of the rumour and this is amplified by her anger over the way her employer dealt with the situation.”
Dr Canaris assessed whole person impairment at 6%.
Dr Miller
Dr Miller examined the respondent at the appellant’s request and reported on 17 September 2020.[78] Dr Miller specifically recorded that the respondent “did not describe experiencing anxiety and instead described experiencing worry about the damage she has suffered to her reputation”. The doctor recorded the respondent left school after year 10. She then worked in “various secretarial and administrative roles” after leaving school, before commencing part-time study in primary education at an age of 30. It is recorded that the respondent completed this course of study in six years, and then completed the Masters of Teaching degree over two years of part-time study. She worked as a teacher thereafter.
[78] Reply, pp 50–65.
Dr Miller recorded that the respondent did not experience “depressed mood, diurnal mood variation, anhedonia or social withdrawal”. The doctor said the respondent denied experiencing daytime lethargy, reduced appetite, a sense of helplessness or hopelessness, guilty ruminations, diminished self-esteem, cognitive impairment, anxiety, or intent to harm herself or others. Dr Miller described the respondent as suffering “emotional distress”. The doctor said the respondent “is experiencing emotional impulse, anger, frustration, upset and litigation neurosis in the context of her perception that her reputation has been maligned”. She said the respondent “is not suffering from any compensable, work-related psychiatric injury as defined by DSM-V or ICD 10, but is experiencing emotional upset in the context of an industrial dispute”.
The respondent’s statement
The respondent’s statement is dated 10 February 2021.[79] It stated in part:
[79] ARD, pp 1–3.
“32. Dr Dias subsequently certified me as having no work capacity until 18 December 2019.
33. I have not returned to employment in any capacity since this time.
34. In or about May 2020 I commenced a number of sessions with a Psychologist, Lucy Cowan. I ceased this treatment in or about July 2020.
35. This incident has had and continues to have a profound effect upon my psychological health and day-to-day life.
36. I continue to experience significant anxiety symptoms.
37. In particular, Vincentia is a small community where everyone knows everyone's business and I am constantly aware of or conscious of people in the community and feel they are talking about me and the allegations made behind my back.
38. I feel as though my reputation, both as a person and as a teacher, has been severely damaged.
39. I am passionate about my work as a teacher and I take a great deal of pride in my work and being a teacher forms a huge part of my personal identity.
40. This incident and the lack of support or response from my employer to quash the rumours and to adequately deal with the impact of same have had significant consequences for me.”
Consideration regarding the s 37 entitlement
Dr Canaris and Dr Dias agree on a diagnosis, adjustment disorder with anxiety. Dr Dias, in March 2020, regarded the respondent as having no current capacity for work. Dr Canaris, in October 2020, said the respondent’s condition had stabilised. Dr Canaris said the respondent was not well enough to work as a teacher because of anxiety. He said the respondent’s activities with her husband on a property renovation project suggested she was capable of productive work. He noted the respondent could not see herself teaching again. Dr Canaris said the respondent would find it very difficult to work again as a teacher. The doctor said the respondent would find it challenging to find paid employment in a non-teaching job.
Dr Miller’s report, in September 2020, does not assist greatly in considering the issue of work capacity. Dr Miller persistently said that the respondent was not suffering from “any compensable, work-related psychiatric injury as defined by DSM-V or ICD 10”. This affected the doctor’s ability to comment on other aspects of the matter. When asked to comment on prognosis in respect of the respondent’s “psychiatric condition/health” the doctor responded:
“Since Mrs Carter is not suffering from any compensable, work-related psychiatric injury as defined by DSM-V or ICD 10 the question of prognosis in respect to her psychiatric condition or health is irrelevant.”
Dr Miller was asked to comment on whether the respondent had the capacity to return to her substantive school location, given that the school had “addressed the concerns”. The doctor’s response said, in part:
“It is my opinion that the school have not addressed Mrs Carter’s concerns within the broader school community, as discussed in question ten above. Hence, it is my opinion that whilst from a psychiatric perspective, Mrs Carter is fit to return to her substantive school location, she is unlikely to do so under the current circumstances. It is my opinion, therefore, that given the industrial dispute between Mrs Carter and Ms Hopwood, and the question of the school’s response to the rumours regarding Mrs Carter, it is possible that Mrs Carter may not wish to return to her employer. However, if this were Mrs Carter’s decision, this would be a matter of choice and not a psychiatric imperative.”
The above is consistent with the proposition that the respondent is unlikely to resume work in her pre-injury position, given the relations between her and the principal and how the school dealt with the rumours. Dr Miller does not accept that this is a result of psychiatric injury. This is in circumstances where Dr Miller has, throughout her report, refused to accept the occurrence of injury because the respondent “is not suffering from any compensable, work-related psychiatric injury as defined by DSM-V or ICD 10”. When asked to comment on “which if any, duties, activities and/or work environments are unsuitable” the doctor said:
“As it is my opinion that Mrs Carter is not suffering from any compensable, work-related psychiatric injury as defined by DSM-V or ICD 10, but is experiencing emotional upset in the context of an industrial dispute, the questions of the nature and extent of her incapacity, and which if any, duties, activities and/or work environments are unsuitable; are all not applicable.”
Dr Miller’s opinion on the respondent’s work capacity is of little assistance. It is coloured by the doctor’s attitude to the nature of the injury (which the doctor does not accept) and whether it was, in the doctor’s opinion, compensable. I prefer the opinion evidence of Dr Canaris and Dr Dias.
Dr Canaris, in October 2020 regarded the respondent as having stabilised. At that time she told Dr Canaris that the thought of going back to school made her hysterical, and that she could not see herself teaching.
In considering the respondent’s capacity for suitable employment it is necessary, in light of the definition in s 32A of the 1987 Act, to have regard to the nature of the respondent’s incapacity. It is necessary to have regard to the respondent’s age, education, skills and work experience. The nature of the incapacity is that the respondent is unsuited to teaching, the thought of which made her hysterical and left her feeling unsafe. The respondent is a lady now 58 years of age. Her education is that she attended school until Year 10 level. Subsequently, she completed the necessary training to teach in primary schools and completed a Masters in Special Education. Her work history involved secretarial and administrative roles before she commenced training as a teacher at around the age of 30. She subsequently worked as a teacher for about 20 years.
Before entering the teaching profession the respondent attended school to year 10 level and performed secretarial and administrative work. She has not performed such duties for about 30 years. The nature of such work has changed over the decades since the respondent performed it. It is not likely that the respondent would be suited to, or capable of, such employment at this stage of her life. On the evidence the only other work the respondent has performed in her adult life is that of a teacher. On the medical evidence work as a teacher is not within the respondent’s capacity. The respondent told Dr Canaris that she “cannot see herself feeling safe in another teaching environment”.[80] The other potentially relevant activities are those involved in the respondent helping her husband renovate a property. This is not employment in the conventional sense. It is not “a real job in employment” to appropriate a phrase from Dewar.
[80] ARD, p 29.
On the medical evidence, having regard to those matters identified in s 32A to the extent they are relevant, and applying Dewar, the evidence supports the proposition that the respondent has ‘no current work capacity’. The respondent is entitled to be compensated pursuant to s 37(1) of the 1987 Act.
At the hearing of the matter it was announced by the Member, without demur from either party, that PIAWE was agreed at $913.94.[81] Eighty per cent of that figure is $731.15. This is the rate at which the respondent is entitled to be compensated pursuant to s 37(1).
[81] T2 3.18–19.
DECISION
The Certificate of Determination dated 8 April 2021 is amended to substitute the figure “$731.15” for the figure “$555.77”.
The Certificate of Determination dated 8 April 2021 is otherwise confirmed.
Michael Snell
DEPUTY PRESIDENT
10 January 2022
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