Smith v Secretary, Department of Education
[2022] NSWPIC 16
•10 January 2022
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Smith v Secretary, Department of Education [2022] NSWPIC 16 |
| APPLICANT: | Katrina Ann Smith |
| RESPONDENT: | Secretary, Department of Education |
| PRESIDENT’S DELEGATE: | Belinda Gamble |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Applicant was a school learning support officer who suffered accepted right knee injury and developed secondary psychological condition; applicant received 130 weeks of weekly benefits pursuant to section 37 of the Workers Compensation Act 1987 (1987 Act); whether the applicant has “no current work capacity” and is entitled to weekly benefits under section 38 of the 1987 Act; Held - medical evidence and applicant’s evidence does not support that a present inability arising from her injury that she is not able to return to work in suitable employment; the applicant is able to engage in suitable employment; no evidence to support that the applicant is likely to continue indefinitely to have no current work capacity; application dismissed. |
| DETERMINATIONS MADE: | 1. I am not satisfied that the applicant has no current work capacity. 2. The application to set aside the work capacity decision is dismissed. |
INTERIM PAYMENT DIRECTION
This direction is issued pursuant to the Workplace Injury Management and Workers Compensation Act 1998
BACKGROUND
On 29 June 2018, Katrina Smith suffered an injury to her right knee whilst working for the Department of Education, the respondent, at a specific purpose school in North Entrance NSW. Unfortunately, Ms Smith developed a secondary psychological injury.
Following her injury, Ms Smith received weekly benefits compensation paid in accordance with section 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act).
In or around May 2021 Ms Smith lodged a work injury management dispute in the Commission.
On 7 June 2021 the Commission issued a consent recommendation relating to the work injury management dispute. The Commission recommended that a return-to-work plan be “withdrawn” and that the respondent provide Ms Smith with a new rehabilitation provider and job seeking assistance in Tamworth.
On 19 July 2021 the Department of Education, the respondent, wrote to Ms Smith advising her that a work capacity assessment had started on her claim and that it was likely that a decision would be made to reduce her weekly payments. In its letter the respondent notified Ms Smith that an entitlement to weekly payments after 130 weeks was only available to a worker assessed by an insurer as having current work capacity if special requirements were met, as required by section 38 of the 1987 Act.
On 10 August 2021 the respondent issued a notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The notice advised
Ms Smith that the respondent has made a work capacity decision under sections 43(1)(a), (b), (c) and (d) of the 1987 Act (the WCD).In the WCD the respondent advised it was of the view that Ms Smith had a current capacity to work in suitable employment as a Teacher’s Aide/Relief Teacher. The respondent stated Ms Smith could earn $719.50 a week in this suitable employment, and, as a result
Ms Smith’s entitlement to weekly benefits compensation would be reduced to $88.50 per week from 19 November 2021.On 27 September 2021 the respondent wrote to Ms Smith advising that her entitlement to weekly payments had come to an end because she did not meet the special requirements to continue to receive weekly payments after 130 weeks. The respondent’s letter stated that
Ms Smith was no longer eligible for weekly payments from 19 November 2021.On 26 November 2021, Ms Smith lodged an Application for Expedited Assessment seeking that the WCD be set aside. Ms Smith sought an order that she be paid weekly benefits compensation pursuant to section 38 of the 1987 Act from 20 November 2021 to date and continuing.
PROCEDURE BEFORE THE COMMISSION
The parties attended a telephone conference before me, as a delegate of the President, on 15 December 2021.
Ms Smith was represented by Mr Paul Mantach from MRM Lawyers. The respondent was represented by Ms Emily Angwin from Rankin Ellison Lawyers.
The parties were unable to reach an agreed resolution of the dispute.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them.
ISSUE FOR DETERMINATION
The issue for determination is whether Ms Smith has “no current work capacity” and is therefore entitled to weekly benefits compensation paid under section 38 of the 1987 Act.
There is no dispute between the parties that:
(a) Ms Smith is not able to return to her pre-injury employment; and
(b) that Ms Smith’s pre-injury average weekly earnings (PIAWE) is $1,049.12.
DOCUMENTS
The following documents were in evidence before the Commission and have been taken into account by me in making this determination:
(a) Application for Expedited Assessment, and attachments (Application); and
(b) Reply, and attachments (Reply).
EVIDENCE
In a document dated April 2021 Ms Smith set out several grievances with the respondent’s return to work process. Ms Smith said that in November 2020 she requested a change in rehabilitation provider on the basis that the initial provider had not taken “proactive” steps to explore a return to work with the respondent (Application, page 9).
In the document Ms Smith said:
“Whilst I have current work capacity, I have not yet returned to work for the 15 hours or more per week that is required if I wish to claim continued weekly payments. This seems to have been the result of Pinnacle’s insistence on me only seeking work another employer, not really considering same employer, different place. There was no RTW plan at all until last week, and the Department of Education has refused to acknowledge my doctor’s recommendations and his reasoning until 9 April 2021, and unless I returned to my previous position in my previous school has refused to find me work, even a temporary placement, in another school until 9 April 2015” (Application, page 12).
In a statement dated 20 May 2021, Ms Smith set out the history of her injury and treatment including three surgeries to her right knee performed by Dr Peter Berton, orthopaedic surgeon.
Ms Smith noted that she had received weekly payments of compensation from Allianz since 23 July 2018 and that she was notified by Allianz that 17 January 2021 was 130 weeks from her injury date and that her work capacity would be reassessed on that date (Application, page 5).
Ms Smith stated that she had not had any assistance from the respondent’s rehabilitation provider and a work plan had not been created for her (Application, page 5).
Ms Smith stated that she would like to try suitable duties in a School Learning Support Officer (SLSO) role at a mainstream school in the Tamworth area, where she had relocated.
On 29 April 2021 the respondent wrote to Ms Smith advising that a temporary placement had been approved for her at a public school in Cowan NSW from 5 May 2021 to 25 June 2021 (Application, page 13). Ms Smith did not attend to work at the school, as directed, due her inability to travel to that location (Application, page 18).
The other relevant documents in evidence include:
(a) correspondence between Ms Smith and the respondent’s insurer (commencing at Application, page 8);
(b) a Return-to-Work plan dated 22 March 2021 (Application, page 20);
(c) a vocational assessment report dated 12 August 2020, including approval for the identified vocational options from Ms Smith’s nominated treating doctor (Reply page, 16);
(d) a labour market analysis report dated 16 February 2021 and 15 September 2020 (Reply, page 43 and 64); and
(e) Certificates of Capacity from Dr Smith (Reply, page 71).
I have referred to the relevant part of these documents below.
REASONS
Is Ms Smith entitled to weekly benefits compensation paid under section 38 of the 1987 Act?
Part 3 Subdivision 2 of the 1987 Act sets out an injured workers entitlement to weekly benefits compensation.
Section 36 of the 1987 Act sets out the compensation that may be payable for an injury during the first 13 weeks.
Section 37 of the 1987 Act sets out the compensation that may be payable for an injury during weeks 14 to 130.
There is no dispute between the parties that Ms Smith has been paid her full entitlement to weekly benefits compensation under sections 36 and 37 of the 1987 Act.
Section 38 of the 1987 Act provides:
“(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if:
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note—
An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after 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.
(8) A worker’s entitlement to compensation under this section may be reassessed at any time.”
Clause 9 of Schedule 3 of the 1987 Act sets out the meaning of “current work capacity” and “no current work capacity” as follows:
“(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 term “suitable employment” is defined in section 32A of the 1987 Act 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.”
In order for Ms Smith to succeed she must establish that she has an entitlement to weekly benefits compensation under section 38.
In particular, Ms Smith must establish that she has an entitlement pursuant to section 38(2) of the 1987 Act. There is no dispute that Ms Smith does not meet any of the preconditions for continuation of weekly benefits compensation under section 38(3) of the 1987 Act.
Ms Smith has the onus of proof. The standard of proof is the balance of probabilities.
The Court of Appeal has confirmed that the Commission has jurisdiction to award weekly compensation after the third entitlement period (see Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 (17 June 2020) at [13] and [73]).
It is open to me to find that Ms Smith has “no current work capacity” and that this incapacity is likely to continue indefinitely. If this finding is made, an entitlement to weekly benefits compensation in the section 38 period would follow.
As noted above, there is no dispute that Ms Smith cannot return to work in her pre-injury employment.
Ms Smith submitted that the nature of her work injury and consequential symptoms demonstrated an incapacity for work. Ms Smith submitted that the reports of Dr Smith indicated a need for rehabilitation to take place prior to a graded return to work. Ms Smith also submitted that her age, length of time out of the workforce and geographical location contributed to her having no current work capacity.
I have dealt with the relevant factors under section 32A below.
The nature of Ms Smith’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity
In a letter dated 6 May 2021 Mr Smith’s nominated treating doctor, Dr Damian Smith, refused to sign off on the proposal for her return-to-work placement, primarily on the basis that it was beyond her ability to attend and would potentially aggravate her secondary psychological condition.
However, in his letter Dr Smith did not state that Ms Smith had no current work capacity.
Dr Smith’s stated that an “option” for Ms Smith would be “…that she be offered a suitable temporary placement that accounts for her new location…” (Application, page 85).Dr Smith’s proposed option is not consistent with Ms Smith not being able to return to work in suitable employment. Moreover, when considering whether Ms Smith is able to participate in suitable employment, regard is not to be had to the whether the work or the employment is available and Ms Smith’s place of residence, i.e., whether a role is available that is proximate to her place of residence.
On 7 May 2021 Dr Smith issued a Certificate of Capacity in which he assessed Ms Smith as having capacity for a graduated return to work, initially proposing three half days. The “comments” part of the certificate stated that Ms Smith was “able to RTW as an SLSO, initially as a therapeutic/rehabilitative measure; Just not her previous school env” (Application, page 87).
On 4 June 2021, 20 July 2021, 24 August 2021, 28 September 2021 and 22 October 2021 Dr Smith certified Ms Smith as having capacity for some type of employment (Reply page 75, 78, 80, 83 and 87).
As was submitted by the respondent, Dr Smith’s certificates of capacity do not support that Ms Smith has no current work capacity. The certificates recommend a graduated return to work. It is evident that Ms Smith has some capacity to engage in suitable employment.
Dr Smith’s written reports set out various concerns with the management of Ms Smith’s return to work by the respondent. However, Dr Smith’s reports do not indicate that Ms Smith has no current work capacity. The reports indicate that Ms Smith has capacity to engage in employment that Dr Smith considers to be suitable (see for example, Application page 83).
Dr Smith appears to have proceeded on the assumption that Ms Smith’s geographical location and the availability of roles are relevant factors to the determination of suitable employment. They are not. Dr Smith has continued to certify Ms Smith as having capacity for some type of employment notwithstanding that in September 2021 he recommended reinstatement of physiotherapy twice a week to assist Ms Smith come out of a pandemic “lock-down” period.
On 13 August 2020 Dr Smith agreed that the vocational option of Teachers Aide was suitable for Ms Smith on a part-time basis three to five hours per week, four to five days per week, with hours increasing depending upon her capacity (Reply page 39). At that time Dr Smith also opined that other vocational options were suitable for Ms Smith on a part-time basis.
Dr Smith’s opinion is not consistent with Ms Smith’s allegation that she has no current work capacity.The reports of Ms Smith’s treating surgeon, Dr Peter Berton, are historic and do not provide any contemporaneous opinion on work capacity.
Ms Smith’s age, education, skills and work experience
Whilst Ms Smith has spent some time out of the workforce, I am not satisfied that her age, education, skills and work experience (or lack thereof) means that she has no current work capacity.
Ms Smith commenced employment as an SLSO in 2008 (Application, page 1). Ms Smith holds a bachelor’s degree and has completed relevant course in education (Reply, page 24). At the time of her injury, Ms Smith was completing a master’s degree although the course has not been completed to date (Application, page 2). Ms Smith has relevant work experience to undertake a role as a Teacher’s Aide (Reply, page 43 - 44). The Vocational Assessment Report from Pinnacle Rehab dated 12 August 2020 identified numerous transferable skills that would make Ms Smith capable of participating in suitable employment, notwithstanding her age, as well as self-reported skills (Reply, page 20 – 22, 24). In her statement dated 20 May 2021 Ms Smith said that she would like to try suitable duties in an SLSO role at a mainstream school in the Tamworth area (Application, page 6).
In my view, the weight of evidence supports that Ms Smith has the capacity to engage in suitable employment. I do not consider Ms Smith’s age, education or work experience to be barriers to her being able to engage in suitable employment.
The consent recommendations made by the Commission in respect of the work injury management dispute are not relevant to the issue before me. Whist the respondent may have agreed to provide Ms Smith with a new rehabilitation provider and job seeking assistance in Tamworth, this is not relevant to the issue of whether Ms Smith is able to engage in suitable employment.
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
Unfortunately, it would appear from Ms Smith’s evidence that the respondent was not overly proactive in managing Ms Smith’s return to work. By the time a new rehabilitation provider was appointed there was little time available to attempt to return Ms Smith to the workforce prior to the expiry of her weekly payments under section 37.
Ms Smith submitted that the respondent had not complied with its duty under section 49 of the 1998 Act. Section 49 generally provides that an employer must, at the request of the worker, provide suitable employment for a worker who suffers from an incapacity for work. The duty is subject to a number of exceptions, including where it is not “reasonably practicable” to provide such employment.
There is insufficient evidence before me to make any finding about whether the respondent has contravened section 49 of the 1998 Act. Also, the issue before me is not whether the respondent breached its statutory duty under section 49, but whether Ms Smith has no current work capacity, as alleged by her.
Whilst the respondent may not have been particularly proactive in attempting to return
Ms Smith to suitable employment, I am not satisfied that this factor means that Ms Smith has no current work capacity. The medical evidence and Ms Smith’s own evidence supports that she has capacity to engage in some kind of employment, and she is therefore not unable to return to work in suitable employment.
Any occupational rehabilitation services that are being, or have been, provided to or for Ms Smith
Ms Smith submitted that rehabilitation was required in the form of reinstatement of physiotherapy prior to there being any finding concerning work capacity, referring to
Dr Smith’s certificates dated 28 September 2021 and 26 October 2021.I do not accept Ms Smith’s submission that further treatment is a precondition to any finding about work capacity. Notwithstanding that Dr Smith has recommended reinstatement of this treatment due to deterioration of Ms Smith’s knee during “lockdown”, he has continued to certify Ms Smith as having capacity for some type of employment.
Summary
I am not satisfied on the balance of probabilities that Ms Smith has no current work capacity.
The weight of evidence supports that Ms Smith is able to engage in suitable employment. Neither the medical evidence or Ms Smith’s own evidence supports that she has a present inability arising from her injury such that she is not able to return to work in suitable employment. There is also no evidence to support that Ms Smith is likely to continue indefinitely to have no current work capacity.
In the circumstances, Ms Smith’s application is dismissed.
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