Antoun v Pride Building & Refurbishment Pty Ltd (NSWPIC 2022)

Link to Decision

Key Takeaways

In this matter, Delegate Camp of the PIC declined to set aside a work capacity decision that had been made by the insurer, despite the insurer not relying upon any return to work planning documents in support of its decision.

Brief Facts

The worker sustained an accepted injury to his shoulders and neck in the course of his employment with the respondent on 21 February 2020.

On 19 January 2022, the insurer issued a work capacity decision stating that the worker’s entitlement to weekly compensation would cease on 2 May 2022. The reason for this decision was based on a finding that the worker was able to return to suitable employment as a project builder, production manager and/or safety inspector. The role of project builder was preferred, and used as a basis for calculating the worker’s ability to earn in suitable employment.

The worker lodged an Application for Expedited Assessment claiming weekly benefits where a work capacity decision is in dispute. The parties were unable to reach a resolution of the dispute so Delegate Camp heard submissions from both sides on issues as follows:

1. whether the roles identified by the respondent are ‘suitable employment’ for the purposes of s32A of the Workers Compensation Act 1987 (the 1987 Act); and
2. whether the worker is entitled to weekly payments of compensation under s37 of the 1987 Act.

There was no dispute as to the following:

1. the worker’s PIAWE;
2. the worker’s claim was within the second entitlement period (i.e. s37 of 1987 Act); and
3. the worker has been certified with capacity to work in some type of employment for 8 hours per day, 5 days per week with some restrictions.

Determination

Delegate Camp considered the statement evidence of the worker, medical evidence, vocational assessment material and submissions of both sides before considering whether the roles identified by the respondent are ‘suitable employment’ under s32A of the 1987 Act.

Delegate Camp noted that ‘suitable employment’ means employment in work for which the worker is currently suited having regard to:

1. the nature of the worker’s incapacity;
2. the worker’s age, education, skills and work experience;
3. any plan or document prepared as part of the return to work planning process, including injury management plans;
4. any occupational rehabilitation services that are being, or have been, provided to the worker; and
5. such other matters the workers compensation guidelines may specify.

The above is without regard to whether the employment is available, the nature of the worker’s pre-injury employment and the worker’s place of residence.

Delegate Camp comprehensively considered all the above matters before finding that the role of project builder is suitable employment for the purposes of s32A of the 1987 Act. She noted that there are compelling factors which support that the worker has the requisite education, skills and experience for the role of project builder, while also noting that the inherent physical requirements of the role do not fall outside of the scope of the worker’s capacity.

Relevantly, Delegate Camp accepted the worker’s submission that the respondent had not relied on any return to work planning documents. However, she stated:

 ‘…the absence of these documents or lack of reliance on these documents is not necessarily a barrier to the role of a project builder or other vocational options being considered suitable employment within the meaning of that phrase in s32A of the 1987 Act.’

Delegate Camp declined to set aside the work capacity decision, thus also declining to make an interim payment direction.

Implications

This case highlights the importance of obtaining sound evidence prior to issuing a work capacity decision. A rehabilitation provider should be briefed with all the relevant evidence regarding capacity, as well as a detailed summary of the worker’s age, education, skills and experience.

A respondent’s failure to rely on any return to work planning documents is not necessarily an impediment to the issue of a soundly based work capacity decision (though it should remain a consideration).  

Finally, the case illustrates that a soundly based work capacity decision can be an important tool in managing a claim.