Tate v University of New South Wales
[2022] NSWPIC 209
•11 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Tate v University of New South Wales [2022] NSWPIC 209 |
| APPLICANT: | Melissa Knothe Tate |
| RESPONDENT: | University of New South Wales |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 11 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Suitable employment as defined in section 32A of the Workers Compensation Act 1987; “real” jobs; Wollongong Nursing Home v Dewar referenced; whether labour market analysis was probative and identified real jobs; Held– award for the applicant for weekly compensation. |
| DETERMINATIONS MADE: | 1. I find that the applicant’s ability to earn from 13 August 2021 is $1,632 per week. 2. The difference between the maximum compensation and the applicant’s ability to earn is: a. $1,054.60 per week for the period from 13 August 2021 to 30 September 2021; b. $1,082.90 per week for the period from 1 October 2021 to 31 March 2022, and c. $1,118.10 per week for the period from 1 April 2022 to date and continuing. 3. I note that the second entitlement period expired on 10 March 2022. 4. I order the respondent to pay the applicant weekly compensation of: a. $1,054.60 per week for the period from 13 August 2021 to 30 September 2021, and b. $1,082.90 per week for the period from 1 October 2021 to 10 March 2022. 5. The respondent is to have credit for payments made during that period. |
STATEMENT OF REASONS
BACKGROUND
Melissa Knothe Tate was employed by the University of New South Wales (UNSW) to take up the Paul Trainor Chair in Biomedical Engineering in 2013. In September 2019, she travelled to New York to give a lecture. While there, she was injured in a motor accident.
On 22 May 2020, an Arbitrator of the Worker Compensation Commission found that Professor Knothe Tate was injured in the course of her employment on 12 September 2019 and that employment was a substantial contributing factor to her injury. He found that she was incapacitated for work until 20 March 2020 and ordered that UNSW pay compensation until that date. UNSW continued to pay compensation after 20 March 2020.
In 2021, Prof Knothe Tate and UNSW agreed that she suffered 12% whole person impairment as a result of those injuries.
On 6 May 2021 UNSW made a work capacity decision, determining that Prof Knothe Tate had current work capacity and reducing her weekly compensation to $284.07 per week. One of the documents relied on when that decision was made was a Vocational Assessment report prepared for Recovre by Ms A Beckett dated 26 March 2021.
The work capacity decision was first challenged in an Application for Expedited Assessment which was discontinued on 5 October 2021 because Prof Knothe Tate sought to issue a direction for production because of an issue which had arisen about the application of s 38 of the Workers Compensation Act 1987 (the 1987 Act). The parties did not refer to s 38 in their arguments in these proceedings.
The issue for determination in these proceedings is Prof Knothe Tate’s ability to earn in suitable employment, taking account of her work capacity as currently certified.
PROCEDURE
These proceedings were commenced and listed for telephone conference on 8 December 2021. Prof Knothe Tate was granted leave to issue a direction for production seeking access to the file created by Ms Beckett for the preparation of her report.
The claim was listed for conciliation conference and arbitration hearing on 15 February 2022 when Mr Perry of counsel appeared for Prof Knothe Tate and Mr Beran of counsel appeared for UNSW. Ms Beckett had not adequately complied with the direction for production so that an adjournment was necessary. Leave was granted to issue further directions for production to Ms Beckett and Recovre. Mr Perry made an application to cross examine Ms Beckett.
The matter was listed for conciliation conference and arbitration hearing on 15 April 2022. On that occasion Mr Halligan of counsel appeared for Prof Knothe Tate and Mr Beran again appeared for UNSW. Ms Beckett gave evidence.
It was not possible to complete the hearing by videoconference because Mr Halligan’s internet connection became inadequate to enable him to be heard clearly and consequently for any transcript of submissions to be produced. An order was made for written submissions.
The parties were unable to agree on Prof Knothe Tate’s current earnings on a casual basis in a supermarket. I directed that the parties attempt to agree on the appropriate figure or to provide submissions in respect of it. UNSW filed an Application to Admit Late Documents with its submissions, which is admitted into evidence. Prof Knothe Tate did not object to the provision of that document.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
The following documents were in evidence and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply;
(c) Prof Knothe Tate’s Application to Admit Late Documents dated 2 February 2022, and
(d) UNSW’s Application to Admit Late Documents dated 21 April 2022.
Much of the evidence in the file is not relevant to the narrow issue that I am required to determine. Prof Knothe Tate’s statements were prepared for the previous proceedings and supplemented.
In her statement dated 15 February 2021, Prof Knothe Tate said that she was told in May 2020 that her area of research would no longer be supported by UNSW after August 2020. Because she was the only person doing research in that area, she was told that her position would be made redundant. Prof Knothe Tate appealed that decision but she was notified that her position would be redundant from 15 January 2021. She applied for redeployment into two jobs advertised by UNSW that she considered she was qualified to perform but her applications were rejected.
That statement contains Prof Knothe Tate’s most recent description of her disabilities as a result of the injury. She said that she suffers constant neck pain, including spasms and nerve pain. A cervical fusion was recommended but Prof Knothe Tate has declined that treatment. She has pain and some restriction of movement in her right shoulder and numbness and pins and needles in her dominant right arm. She suffers a loss of grip strength in her right hand and numbness in her little and ring fingers. She has difficulty sleeping and her activities of daily living are curtailed.
In her statement dated 9 August 2021, Prof Knothe Tate said that she was told that the redundancy was solely due to budgetary constraints brought about the pandemic. Prof Knothe Tate attached her solicitors’ correspondence seeking particulars of the reports relied on by UNSW in its s 78 notice. At that time her general practitioner had certified her fit for employment for six hours per day on three days per week. UNSW issued a work capacity decision on 6 May 2021 stating that she was fit to work those hours as a university professor or senior lecturer. Prof Knothe Tate said that, shortly before her redundancy, she made enquiries of the Dean of Engineering at UNSW and the relevant heads of school at the University of Sydney, Macquarie University and Australian National University. She was told that while those people expressed an interest in hiring someone with her qualifications, the downturn in international students as a result of the pandemic meant that there were no academic positions available. Prof Knothe Tate continued to apply for positions for which she said she was qualified and overqualified. She said she had contacted each of the universities mentioned in Ms Beckett’s report and had no success in finding or being able to apply for the suggested part-time roles. She said that she had last worked as a senior lecturer 20 years ago and that the roles of senior lecturer and professor were quite different. She said that those roles did not exist on a part time basis. Prof Knothe Tate considered that she would be able to work in a clerical or secretarial role for 18 hours per week for which she would earn about $35 per hour or $630 per week or a part time lecturer role for which she would earn $50 per hour or $900 per week.
In her statement dated 1 February 2022 Prof Knothe Tate described the medical examinations attended at the request of UNSW and noted that reports have not been provided. She attached her most recent certificate of capacity which certified her fit to work on four days per week, eight hours a day, or six if standing. She said:
“Since UNSW made my endowed Chair and tenured professor position redundant in January 2021, I have been working for myself (unpaid) at my certified capacity undertaking tasks such as writing articles, working on patent claims, mentoring students, and preparing job applications. I believe that I am fit to return to work at my current certified capacity, however part-time academic and Professorial Roles do not exist, and I have not been successful in any academic job application to date. All advertised academic and Professorial Roles have been full time. I am unable to find employment that reflects UNSW's recommended roles as per its Work Capacity Decision dated 6 May 2021.
In late September 2021, I commenced casual employment at Woolworths Group Limited as a cashier. This position required me to stand for lengthy periods of time throughout the shift. During November 2021, I worked up to 18 hours per week, in accordance with my Certificate of Capacity at that time. However, since January 2022, I have worked up to 15 hours per week. Shift availability has been limited as there are not enough shifts available for the number of casual employees employed by Woolworths. I have requested to work at Woolworths for 24-hours per week, as per my current Certificate of Capacity, however this has been difficulty due to the limited shifts available.”
Medical evidence
Professor Knothe Tate’s solicitors qualified Dr Millons who reported on 19 March 2021. He said that Prof Knothe Tate appeared to have suffered some post-concussion issues, a significant aggravation of pre-existing but asymptomatic degenerative changes in her neck and a soft tissue injury to her right shoulder. Dr Millons noted that she received ongoing psychological support. He said:
“I would have thought that she would be quite fit to return to teaching, both on-line and face to face, perhaps starting out 4 hours per day and then gradually increasing her hours as work hardening occurred.
She would have difficulty with any tasks that entailed a lot of excessive turning of her head and neck or using her right arm excessively above shoulder height.
It is a question of her adapting her lifestyle to suit her disability to keep her symptoms at a tolerable level.”
Professor Knothe Tate’s most recent certificate of capacity appears in her Application to Admit Late Documents and is dated 1 February 2022. Dr Tam set out the treatment Prof Knothe Tate is undergoing and said that the treatment was “Simple analgesia. Rest, avoid screen time”. She was certified fit for some type of employment for “8 (sedentary) 6 (if standing)” hours for four days per week. Her lifting and pushing/pulling ability was less than 4kg. Dr Tam said Prof Knothe Tate should “schedule breaks after every 1.5 hour of screen time” and
“Will need ongoing physiotherapy, neurosurgeon review, and orthopaedic surgeon review . Follow up with psychologist for ongoing PTSD treatment. Continue trial back to partial duties, continue with 4 days a week, and try increasing to <4kg weight limit on right arm. Will need ongoing physiotherapy involvement in order to continue reducing limitations.”
UNSW’s evidence
UNSW issued a work capacity decision on 6 May 2021. It said that Prof Knothe Tate had current work capacity in accordance with the functional assessment (physical and psychological) and vocational assessment completed by Recovre on 9 March 2021. It said she was able to earn up to $1,970.53 per week in suitable employment and that she was therefore entitled to $284.07 in weekly compensation benefits. Both functional assessments accepted that Prof Knothe Tate had capacity to work six hours per day on three days per week, ensuring regular breaks were implemented. A graduated return to work program was recommended over three month period and it anticipated that Prof Knothe Tate would be able to return to full-time hours over a three month period. Based on Ms Beckett’s report, UNSW said that the roles of professor and senior lecturer, available outside UNSW were suitable employment as defined in s 32A of the 1987 Act.
The decision said:
“We also note that you continue to be engaged and involved in your field of work and have indicated in the vocational assessment that you perform on average 8 hours per week of work on a voluntary basis, supervising students and giving talks and have also indicated you continue to assist your husband in your business pursuits.”
UNSW reduced Prof Knothe Tate’s weekly compensation payments to $284.07 from 13 August 2021.
Because the work capacity decision was made on the basis of employment for six hours per day on three days per week, it is not necessary to consider the functional assessments further.
Ms A Beckett prepared a Vocational Assessment Report on behalf of Recovre on 26 March 2021. The vocational goals considered suitable for Prof Knothe Tate for job seeking purposes at the time of the assessment were a professor earning $4,160 per week full-time or a senior lecturer earning $2,960 per week on a full-time basis. The role of an advisor in biomedical research was considered suitable but excluded for job seeking purposes because there was a limited labour market. The report also noted that wage information was not available for that occupation on Other positions excluded included a researcher or research and development manager because the earnings were lower than Prof Knothe Tate’s pre-injury earnings. The role of lecturer was also excluded as being too junior, given Prof Knothe Tate’s experience.
When the assessment was made, Prof Knothe Tate was certified fit to work four hours per day on two days per week. Ms Beckett wrote:
“One recommendation to be made, regards upgrade of Prof Knothe Tate’s capacity to increase her competitiveness in the job market. The Physical and Psychological Functional Capacity Evaluations undertaken with Prof Knothe Tate recommend that she has capacity to work 6 hours per day 3 days per week, whereas she is currently certified for 4 hours per day 2 days per week only. Labour market research reveals a minimum capacity of 24 hours per week preferred to work in the identified roles, with an ideal capacity for full time hours. However, employers were willing to consider 6 hours per day 3 days per week (18 hours per week total) as part of a job share arrangement, given Prof Knothe Tate’s extensive experience. These labour market findings support an increase in hours of capacity to a minimum of 6 hours per day 3 days per week, with a gradual upgrade to full time hours.”
Appendix 1 to the report was the labour market analysis of suitable employment options. Ms Beckett set out the key functional demands of the role of university professor and the training required, noting that Prof Knothe Tate did not require further training for the role. She set out her understanding of the key functional demands of the role based on:
“According to Labour Market Research conducted by Recovre and the Accident Compensation Corporation ( the functional requirements of this role may include:…”
Ms Beckett then set out her enquires with several employers. With respect to “Employer 1”, she wrote:
“Recovre contacted The University of Sydney on 11/3/21, regarding a Professor position.”
After setting out the duties and essential requirements in a general way, Ms Beckett said that “the Employer contact confirmed they would consider hiring a candidate with our client’s experience”. With respect to Prof Knothe Tate’s capacity to complete the role she said:
“The employer did not identify any role demands that exceed Prof Knothe Tate’s restrictions of: no lifting right arm, sitting as tolerated, standing as tolerated, no pulling/pushing on the right arm, bending/twisting/squatting as tolerated, and schedule breaks after every 1.5 hours of screen time.
She would however, need to increase to a minimum of 24.5 hours/ideally full time hours to be competitive. The role cannot be completed on her current hours of 4 hour 2 days per week. The employer was willing to consider 18 hours per week given her extensive experience, however this would be part of a job share arrangement.
…
Prof Knothe Tate’s current hours of capacity (4 hours 2 days per week) were discussed. The Employer advised they would be unable to offer employment on this basis. The minimum hours preferred are 24.5 hours per week. Full time hours are ideal. 18 hours per week are able to be considered as part of a job share arrangement.”
With respect to Employer 2, Ms Beckett wrote:
“Recovre contacted Macquarie University on 11/3/21, regarding a Professor position.”
After setting out duties and essential requirements, Ms Beckett said:
“The employer advised however, she would need to increase to a minimum of 18 hours at the least (part of a job share arrangement) as the role cannot be completed on her current hours of 4 hours 2 days per week. The employer noted they would prefer a minimum of 24 hours per week with a view to going full time.”
Ms Beckett set out her enquiries with Employer 3, stating:
“Recovre contacted the University of Technology Sydney on 16/3/21, regarding a Professor position.”
She said that the university would consider hiring a candidate with Prof Knothe Tate’s experience and said:
“She would however, need to increase to a minimum of 18 hours per week with a gradual increase to full time hours, as the role cannot be completed on her current hours of 4 hours 2 days per week.”
Ms Beckett also “contacted Western Sydney University on 16/3/21, regarding a Senior Lecturer (Level C) position”, again noting that a minimum of 24 hours per week was preferred “with a view to going full time”. She also contacted the Western Sydney University, Sydney University and Monash University regarding a senior lecturer position. The hourly rates were respectively $84, $70 and $68.
Ms Beckett provided a supplementary report dated 30 August 2021 in response to Prof Knothe Tate’s statement. She said:
“I confirm that the roles of Professor and Senior Lecturer were real jobs and existed at the time labour market research was undertaken in March 2021. Prospective employers confirmed at the time, these roles existed within their institutions. At the time of contact, employers advised these roles existed but were not vacant. That is, they were currently filled. Pursuant to Section 32A of the Workers Compensation Act 1987, this meets the definition of suitable employment regardless of whether the roles or employment were currently available. General employer feedback revealed that positions of this seniority do not become available often.
To determine the Claimant’s suitability to the roles Professor and Senior Lecturer, prospective employers were asked whether they would consider hiring a candidate with the skills, experience and educational attainment such as that of the Claimant. In response to this question employers contacted advised were the positions vacant, the Claimant would be considered a suitable candidate.”
Ms Beckett set out her methodology:
“I confirm that contact was made with employers outlined in the Vocational Assessment report, in March 2021. Specific details of the employer representatives such as a name or position was not recorded, to ensure the anonymity and privacy of the representatives. Similarly, personal details of the Claimant such as the Claimant’s name, were not disclosed to the employers as part of the labour market research; to ensure the anonymity and privacy of the Claimant.
... At the time of contact with the employer representatives in March 2021 there were no positions full time or part time vacant, within their institutions. The positions of Professor and Senior Lecturer existed within each University, however they were currently filled.
… Employer representatives advised the roles were currently being performed on a full time basis. Employer representatives advised a job share arrangement could be considered which would enable an individual to work part time; provided the inherent requirements of the role were still being achieved, flexibility may be warranted.”
In response to Prof Knothe Tate’s experience that part time roles and job share arrangements were not part of mainstream employment in the university sector, Ms Beckett said:
“I am also unable to comment on mainstream employment regimes within the university sector. The information obtained from employer representatives in March 2021 was based on the specific positions of Professor and Senior Lecturer, to determine whether an individual could work part time in these roles. Employer representatives advised this was possible, but would need to be part of a job share arrangement. As noted earlier in this response, the roles were not vacant at the time of contact in March 2021, but were real jobs that did exist.”
Ms Beckett was cross-examined at the hearing and I was satisfied that, at that stage of the hearing, that Mr Halligan’s internet connection was satisfactory. Where necessary, questions were repeated.
In answer to questions asked by Mr Beran, Ms Beckett said that she is a sole trader who contracts to Recovre and other rehabilitation providers. She said that she made calls to prospective employers to obtain information relevant to the vocations outlined in the report. She did not make notes of her conversations with the employer representatives but typed the information she obtained into the report template during the conversation and said that she was not required to keep a separate file note.
In cross-examination and in respect of the role of a professor at the University of Sydney, Ms Beckett said that she did not record the name of the person she spoke to. She contacted the university and asked to speak to who could comment on recruitment or positions within the university and was transferred to someone in the Human Resources team. She did not record the name of the person she spoke to because of privacy concerns and she did not record the length of the conversation. Ms Beckett did not know the “status” of the person, by which I understood that she did not know their job title. Ms Beckett did not tell the person on the phone that the enquiry was for the purpose of a workers compensation claim because she did not consider it relevant. Though Ms Beckett said that she told the person that Prof Knothe Tate’s field was biomechanics, it did not appear in her report. She agreed with Mr Halligan that she asked about a role for a “professor simpliciter”. Similarly Ms Beckett said that she had a general discussion about the restrictions documented on Prof Knothe Tate’s certificate of capacity. She said that her report detailed a response to each of the criteria that she was required to address in determining whether the roles were suitable employment.
Ms Beckett said that she undertook the same enquiry process with Macquarie University. Though she found out the name of the person she spoke to, she did not record it. Again it was a cold call to an “HR administrator”. The role discussed was general – described as “professor simpliciter” – and Ms Beckett accepted that the information was sought in respect of positions available in every faculty. She did not tell the person she spoke to that Prof Knothe Tate had made a workers compensation claim and the discussion concerned the restrictions in the certificate of capacity. She said she was not required to provide a copy of the certificate.
In respect of both Sydney and Macquarie Universities, Ms Beckett discussed payment in terms of an hourly rate only and not as a package.
Ms Beckett agreed that she also contacted the University of Technology, Sydney. She outlined Prof Knothe Tate’s experience to ascertain if she would be employable “in a professor position” in the area of biomechanics. Ms Beckett agreed that she had not recorded in her report that she had made that specific enquiry. There was no position available “because it was already filled”.
Ms Beckett said that she made a separate series of telephone calls with respect to the position of senior lecturer. She did not recall if she spoke to the same person at Sydney University.
Ms Beckett spoke to a representative of Monash University. When Mr Halligan asked why she made that enquiry, Ms Beckett said that “under s 32A” a role can be deemed as suitable employment regardless of a claimant’s place of residence.
Ms Beckett said that she was required to document functional requirements for the roles she considered and she obtained that information from the website of the Accident Compensation Commission of New Zealand. In response to my question she said she believed it covered Australia and New Zealand and it provided the general physical or psychological requirements of a job that she was required to use in a labour market analysis.
Ms Beckett said that she understood that the effects of the pandemic on the university sector was not something she was required to take into account. She said that she did not speak to a representative of UNSW.
In re-examination, Ms Beckett said that when she contacted each of the university representatives she discussed Prof Knothe Tate’s restrictions as a result of her injury, around her qualifications or skills, her work experience and queried whether they would consider employing her. Ms Beckett said that her enquiries were not restricted to the certificates of capacity but also the psychological and functional capacity assessments.
At the conclusion of her evidence, I asked Ms Beckett a question about the hours of employment that she enquired about, noting that the physical and psychological functional capacity evaluations recommended that Prof Knothe Tate had capacity to work six hours a day, three days per week, despite her then current certificate of capacity which said she was fit to work four hours a day on two days per week. She said that she asked about both and that “as a bare minimum” the representatives may consider employment for six hours on three days but only if it was part of a job share arrangement.
Wages
UNSW relied on payslips from Woolworths for the weeks ending 6 March 2022, 13 March 2022 and 27 March 2022 and a schedule of hours worked and earnings for the period since 13 September 2021.
Emails from the parties showed that they have been unable to agree on Prof Knothe Tate’s current earnings. Prof Knothe Tate’s solicitor said that she averaged 12 hours per week and was paid $28.30 per hour. If she worked the 18 hours that she estimated she could work then she would earn $509.46 per week. He said there were weeks during the period when she was unwell for reasons unrelated to the injury.
The schedule shows that in the week ending 13 March 2022, Prof Knothe Tate worked 20.55 hours and earned $681.27. In the week ending 27 March 2022, she worked 19 hours and earned $670.78.
SUBMISSIONS
Counsel’s submissions were recorded and a summary of them appears below.
Mr Beran
Mr Beran volunteered to address first. He said that the questions Ms Beckett was asked in cross examination about “real jobs” took the statements in Roche DP’s decision in Wollongong Nursing Home Pty Ltd v Dewar[1] (Dewar) somewhat out of context. He quoted from that decision at [63] where Roche DP said:
“Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are’ of a type or nature that is generally available in the employment market’.”
[1] [2014] NSWWCCPD 55
Mr Beran said that real jobs are jobs which exist, not jobs for which Prof Knothe Tait can apply. He said that despite the shortcomings in Ms Beckett’s note taking, she had outlined her relevant experience and there was no reason not to find that she was a witness of truth. The jobs that she identified do exist and the fact that they were taken and Prof Knothe Tate was unable to apply for them was not relevant. He said it was notable that Prof Knothe Tate did not obtain a report in response and the only evidence in response was her statements. Mr Beran said that I would accept Ms Beckett’s evidence because there is no evidence to the contrary. He noted that she provided more than one option.
Mr Beran said that Prof Knothe Tate’s earnings at Woolworths did not reflect her ability to earn.
Mr Halligan
Mr Halligan said that his written submissions supplemented those made at the hearing and they encapsulate what he said then. Mr Halligan said that there can be no doubt regarding the status of Prof Knothe Tate’s medical condition because UNSW did not rely on reports from Drs Mellick, Mattick, Powell and Hughes who examined her in mid 2021.
Mr Halligan said that Prof Knothe Tate’s earnings at Woolworths as a casual check out operator since September 2021 averaged $28.30 per hour or $339.60 per week.
Mr Halligan set out s 32A and quoted from Dewar. Section 32A provides:
“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.”
Mr Halligan noted that the test in Victoria requires the employer to prove that a worker’s residual capacity was meaningful a saleable in the market, otherwise the worker is presumed to be totally incapacitated. He said that if the criteria in the definition under s 32A were absent then the presumption of total incapacity must follow. UNSW’s insistence that Prof Knothe Tate is capable of substantial academic work is based exclusively on the reports of Ms Beckett.
With respect to Ms Beckett’s evidence, Mr Halligan noted that she made “cold calls” to some universities and did not record the name of the person she spoke to. The absence of anything to identify the representative means that there is no opportunity to understand the position of the person to whom Ms Beckett spoke and whether they had authority to provide information or knowledge of the importance of the enquiry. He said that the failure to disclose the identity of any of the representatives meant that there was no opportunity to verify the information and that gross unfairness had been visited upon Prof Knothe Tate. He said that paragraph (a)(i) one of the definition has not been fulfilled because the representatives were not told that Prof Knothe Tate was an applicant for workers compensation benefits. He said that the nature of the worker’s incapacity was an important criterion and it followed that an employer may be reluctant to take on a worker whose attendance could prove to be unreliable.
Mr Halligan also said that Ms Beckett’s request for information for the position of professor or senior lecturer rather than a position within a specific faculty was too generic. If UNSW contended they were “real jobs” available to Prof Knothe Tate then it would need evidence that those jobs were available in her particular skill set. He also noted that an hourly rate was quoted but no information sought about a total remuneration package including holiday loadings or superannuation. “Real jobs” as described in Dewar had not been identified. Mr Halligan also noted that Ms Beckett had not taken contemporaneous notes and he doubted that she would have been able to type all of the material in her report at the same time as talking to the university representative. He also noted that Ms Beckett responded in cross examination to questions about an inquiry made at Monash University by saying that the statutory definition specifically ignored the place of residence. He said it was remarkable that Ms Beckett’s evidence ignored the possibility of work becoming available at UNSW. He said that this demonstrated a cynical attitude and that UNSW has been overzealous to defeat Prof Knothe Tate’s claim. Also noted that Ms Beckett made no reference to the impact on Australian universities of the pandemic and the result in loss of academic jobs.
Mr Halligan quoted from the Court of Appeal decision in Mead v Kerney[2]:
" ‘[52] In Arthur Robinson (at 657) Barwick CJ observed that lost earning capacity 'ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate', a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) in Morgan v Costello [2004] WASCA 260 (at [99]) as supporting the proposition that 'the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity.'" (Emphasis added).
Their Honours also referred (at [53]) to the observations of Glass JA in Linsell v Robson [1976] 1 NSWLR 249 concerning the defendant's need to adduce evidence ‘to show what sort of employment is within the residual capacity of an injured litigant, and what sum it is likely to produce (at 254 - 5; emphasis added).” (emphasis in original).
[2] [2012] NSWCA 215 at [26]-[27].
Mr Halligan noted that Prof Knothe Tate’s compensation was limited by the maximum in s 34 of the 1987 Act. If she worked for 18 hours in her current role, she could earn $509.46 per week. UNSW had, he said, overestimated Prof Knothe Tate’s ability to earn by finding that she can work part time as a university professor.
Mr Beran in reply
Mr Beran noted that Dr Millons’ opinion was unchallenged and assessed Prof Knothe Tate as having capacity to work for 20 hours per week. A recent certificate of capacity certified her fit to work 32 hours per week in a sedentary role. He said that her pre-injury average weekly earnings were displaced by the maximum in s 34. He said that recent payslips show that she was capable of earning up to $681.27 per week.
Mr Beran said that, for the purpose of s 32A, the availability and location of employment is not relevant. He said that to succeed in her claim she:
“essentially needs to assert that there were no persons employed at all in Australia either as a biomechanical engineering professor or senior lecturer.”
Mr Beran said that the fact that part time or job sharing positions are currently not available is irrelevant for the definition of suitable employment. He did not quote any authority in support of that contention. He set out a table which he said demonstrated her capacity for suitable employment, relying on the estimated earnings of $50 per hour for a lecturer set out in Prof Knothe Tate’s statement,
Job
18 hours per week
24 hours per week *
32 hours per week *
Professor
$1,970.53
$2,627.37
$3,503.16
Senior Lecturer
$1,402
$1,869.33
$2,492.44
Lecturer**
$900.00
$1,200.00
$1,600.00
The rate for a lecturer was that set out in Prof Knothe Tate’s statement dated 9 August 2021.
In the alternative, Mr Beran submitted that Prof Knothe Tate had demonstrated a capacity to earn $681.27 per week at Woolworths and that her average earnings did not reflect her capacity. He said that s 35 of the 1987 Act as in force at the date of the injury defined E for the purpose of the equation in s 37 as:
“E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(a) the amount the worker is able to earn in suitable employment,
(b) the workers current weekly earnings.” (emphasis in original)
Mr Beran said that Prof Knothe Tate’s capacity was as a professor or senior lecturer, or in the alternative, was the maximum weekly compensation amount less $681.27 per week.
FINDINGS AND REASONS
The parties agreed that Prof Knothe Tate’s entitlement to compensation is measured under
s 37 of the 1987 Act. It 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.”
It was agreed in previous proceedings that Prof Knothe Tate’s pre-injury average weekly earnings were $3,846.15 which is substantially higher than the maximum so that the relevant measure of compensation was the maximum weekly compensation amount which is currently $2,318. At the time UNSW made the work capacity decision, the maximum was $2,254.60. Prof Knothe Tate’s current hours vary but her compensation is assessed by reference to the maximum weekly compensation amount.
Schedule 3 cl 8 of the 1987 Act defines current weekly earnings to include the amount a worker would be able to earn in suitable employment.
Section 32A of the 1987 Act includes the definition of suitable employment for the purpose of calculating a worker’s entitlement to compensation. Roche DP’s decision in Dewar concerned the meaning of terms defined in s 32A of the 1987 including “suitable employment”. The worker was an assistant in nursing who suffered a shoulder injury. On her return to work after the injury, she was given duties in the laundry, folding washers and towels and she performed those duties until liability for the compensation was denied and the duties were withdrawn. After surgery, she returned to the nursing home and was told no suitable duties were available.
Roche DP said that it was not correct to assess whether the worker was able to return to suitable employment by reference to the availability of the duties at the nursing home rather than by reference to her capacity for work. Roche DP said[3]:
“The new provisions require a determination of whether a worker has a ‘current work capacity’ or ‘no current work capacity’. A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘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.
Having accepted that Mrs Dewar has an ‘inability’ arising from her work injury, the Arbitrator’s task was to determine, having regard to the matters listed in the definition of suitable employment, if she was ‘able to return to work in suitable employment’. The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or 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 or employment is ‘available’ or is of a type or nature that is ‘generally available in the employment market’.”
[3] At [47]-[48].
After considering the relevant medical evidence, Roche DP said:[4]
“After referring to Lawarra Nominees, the Arbitrator said that, to be viewed as ‘suitable employment’, there must be a capacity that is at least ‘potentially able to be realised for financial reward on the labour market’. If, by that statement, the Arbitrator meant that the work had to be available in a labour market reasonably accessible to Mrs Dewar, his statement was inconsistent with s 32A and was wrong. If the Arbitrator meant that the suitable employment must be employment that is real and is (potentially) available in the labour market at large, though not available to Mrs Dewar and not ‘generally available in the employment market’, I agree.”
[4] At [51].
Roche DP said:
“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.
Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”[5]
[5] At [59]-[60].
Capacity
There is no suggestion that Prof Knothe Tate is fit for her pre-injury duties. UNSW’s evidence was based on a certificate which says that Prof Knothe Tate is fit to work 18 hours per week, being six hours on each of three days. That is roughly consistent with Dr Millons’ evidence that Prof Knothe Tate is fit to work 20 hours per week but his opinion was based on her physical capacity only. Her later certificates of capacity say that she could work 24 or 32 hours per week, limiting the time she spends on a computer. The latter certificate makes clear that her capacity is less if she is required to stand. Taking all of the assessments of capacity into account, I am satisfied that Prof Knothe Tate is fit to work 24 hours per week, particularly as some unpaid preparation time would probably be necessary.
Neither party addressed on the work that Prof Knothe Tate continues to do in her field and the evidence with respect to it is limited. UNSW specifically referred to it in the work capacity decision. I consider her involvement in her field means that it is likely that she has capacity to work to some extent in higher education in her field but that it is limited. I consider it likely that her current employment in a supermarket was obtained out of desperation and I do not accept that it is an accurate measure of her capacity.
Professor Knothe Tate has applied for roles as she becomes aware of them and continues to do so. The pandemic has had a significant impact on the availability of jobs in the university sector. However, so long as jobs which fall within the definition of suitable employment are real jobs, the definition requires me to make a determination regardless of whether the work is available. I therefore cannot take the downturn in employment as a result of the pandemic into account.
Ms Beckett’s evidence
UNSW’s work capacity decision relies almost solely on Ms Beckett’s evidence. Her report did not set out the results of her investigation and she did not retain her notes.
While I have no reason to doubt Ms Beckett’s veracity, her role was to give evidence as a witness of fact, setting out the information she obtained, and also as an expert witness, providing an opinion on those facts. The methodology she used to obtain the facts on which she based her opinion and her understanding of her role fell short of the requirements of an expert. Much of her report does not provide a proper basis for the findings I am asked to make.
Section 43 of the Personal Injury Commission Act 2020 provides:
“Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
While the rules of evidence do not apply in the Commission, it is as Allsop P, with whom McColl JA agreed, said in OneSteel Reinforcing Pty Ltd v Sutton[6]:
“required to draw its conclusions from material which is satisfactory in the probative sense in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.”
[6] [2012] NSWCA 282 at [2].
Much of Ms Beckett’s evidence lacked the appropriate foundational material and some of it was arbitrary.
The definition of suitable employment did not provide a basis for Ms Beckett to exclude from consideration roles for which the expected earnings were below Prof Knothe Tate’s pre-injury earnings or which were too junior given her level of expertise. The definition requires a consideration of jobs which are suitable for a worker who has suffered an injury. That worker’s education skills and worker’s experience must be taken into account. However, it will often be the case that a person who has suffered an injury will be required to undertake a less skilled job than they previously performed.
Ms Beckett’s focus on what she believed she was “required” to do and on the words of s 32A suggests that she was ticking boxes rather than engaging intellectually with the task. This impression is reinforced by her statement that the list of requirements of roles on the Accident Compensation Corporation of New Zealand website “applied” in Australia. The list of requirements may be a useful resource or starting point but it is no more than that.
Ms Beckett only considered the roles of professor and senior lecturer. Though Ms Beckett said that she told those to whom she spoke to as a result of cold calls about Prof Knothe Tate’s field and expertise, she spoke only to a staff member in the human resources departments and did not make a record of the person’s name or role. I accept that she might not wish to record the person’s name in her report but her failure to make or retain notes means that her evidence cannot be effectively tested.
Ms Beckett’s evidence is inconclusive about the extent to which she discussed Prof Knothe Tate’s actual experience. The report does suggest that she asked generally about roles as a professor or senior lecturer and it is not clear that the answers were limited to Prof Knothe Tate’s field. Mr Halligan’s questions about whether she asked about roles as “professor simpliciter” were justified based on a reading of the report.
In oral evidence Ms Beckett said that she did reveal Prof Knothe Tate’s field and experience. The extent to which she did that is unknown and her evidence is unconvincing when it is not backed up by notes. However, the discussions she did have were with people of unknown status in the human resources department and not with senior academic staff.
While the decision in Dewar makes clear that the availability of work is not relevant, it is necessary that the work for which a worker is said to be suited is a real job. A worker’s skills and education are relevant to the consideration of suitable employment. In an academic context, that requires consideration of the relevant discipline. The fact that there may be a part time or job share role in another discipline such as law or humanities, does not of itself mean that all academic roles can be done that way. It is certainly not clear from Ms Beckett’s evidence that there are real part time or job share professorial roles in any field for which Prof Knothe Tate is qualified. Prof Knothe Tate’s evidence based on her observations and inquiries is that those role do not exist in her field and I accept her evidence over Ms Beckett’s general inquiries.
I am not persuaded, based on Ms Beckett’s evidence, that there are real part time or job share professorial or senior lecturer jobs for which Prof Knothe Tate would be qualified. Accordingly, I do not find that the positions Ms Beckett identified were suitable employment for Prof Knothe Tate.
Notably, there is no evidence from UNSW as to whether part time professorial or senior lecturer positions are available at UNSW in Prof Knothe Tate’s field or any other.
Consideration
Professor Knothe Tate has continued to apply for positions without success. The legislation does not allow me to take that lack of success into account in awarding compensation. Mr Halligan’s reference to the position at common law does not apply to the consideration of what is suitable employment. The definition specifically excludes consideration of whether jobs are available.
Though it is more than 20 years since Prof Knothe Tate worked as a senior lecturer, that does not prevent even the more junior role of lecturer being suitable employment as defined. Prof Knothe Tate accepted that working as a lecturer may be suitable employment and she estimated an hourly rate of $50. Though she has not seen part time positions advertised, she has applied for and continues to apply for jobs as she becomes aware of them. That suggests that she has some recent experience of an appropriate hourly rate.
I accept that such a role is suitable employment and that it is likely that Prof Knothe Tate would be able to perform it for 24 hours per week as certified by Dr Tam, even though the position may be difficult to find.
Ms Beckett did not provide an hourly rate for the position of lecturer. It is likely to be less than the figures she noted for senior lecturer of between $68 and $84 per hour. There is therefore no reason not to accept Prof Knothe Tate’s estimate of $50.
I consider that 24 hours per week is an appropriate estimate of her capacity, taking the medical evidence into account and the fact that some unpaid preparation may be required. She has worked up to 20 hours per week at Woolworths and has sought but been unable to obtain more hours.
Multiplying 24 hours by $50 results in an ability to earn in suitable employment of $1,200. The difference between that amount and the maximum is
(a) $1,054.60 per week for the period from 13 August 2021 to 30 September 2021;
(b) $1,082.90 per week for the period from 1 October 2021 to 31 March 2022, and
(c) $1,118.10 per week for the period from 1 April 2022 to date and continuing.
At an earlier stage in the proceedings, the parties noted that s 38 of the 1987 Act may impact on Prof Knothe Tate’s entitlement but the section was not referred to in evidence or submissions which focussed solely on her ability to earn. The second entitlement expired on 10 March 2022. Without evidence or submissions about s 38, I cannot order compensation after that date.
I find that Prof Knothe Tate’s ability to earn from 13 August 2021 is $1,632 per week.
The difference between the maximum compensation and the applicant’s ability to earn is:
(a) $1,054.60 per week for the period from 13 August 2021 to 30 September 2021;
(b) $1,082.90 per week for the period from 1 October 2021 to 31 March 2022, and
(c) $1,118.10 per week for the period from 1 April 2022 to date and continuing.
I note that the second entitlement period expired on 10 March 2022.
I order UNSW to pay Prof Knothe Tate weekly compensation of:
(a) $1,054.60 per week for the period from 13 August 2021 to 30 September 2021, and
(b) $1082.90 per week for the period from 1 October 2021 to 10 March 2022.
UNSW is to have credit for payments made during that period.
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