Myrvang v Australian Turf Club Limited (NSWPICD 2024)

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Key Takeaways

Certificates of capacity will be given limited weight in circumstances where there are no supporting reports from the treating doctor.

Brief Facts

The worker sustained injuries to her lower back and neck in the course of her employment. Liability was initially accepted until 8 July 2021, when the insurer determined that the effects of the injury had ceased and issued a dispute notice.

The worker challenged the dispute in the Personal Injury Commission (PIC) seeking weekly compensation from 29 July 2021 to the end of the second entitlement period pursuant to s37 of the Workers Compensation Act 1987 (the 1987 Act).

On 9 August 2023, the matter was heard before Member John Isaksen. The Member found that the worker’s injury had not resolved and she had an incapacity arising from her injury for the period claimed. The member accepted that the worker was totally unfit for work from 29 July 2021 to 19 September 2021, thereafter he found that the worker had capacity to work in a full time clerical role and awarded nominal weekly benefits as follows:

• $11.40 per week from 1 October 2021 to 31 March 2022 pursuant to s37(3) of the 1987 Act, and
• $26.60 per week from 1 April 2022 to 30 June 2022 pursuant to s37(3) of the 1987 Act.

In reaching this decision, the Member did not accept the certificates of capacity issued by the worker’s general practitioner that varyingly certified the worker with minimal or no current work capacity. Instead, the Member preferred the treating and qualified evidence which indicated that the worker had sufficient capacity to undertake suitable employment with restrictions. He also noted that the worker was undertaking a tertiary degree, further supporting a current work capacity.  

The worker sought to appeal the Member’s decision on the grounds that the Member failed to determine the factual dispute in relation to the worker’s capacity in accordance with the evidence.

Judgment

The worker’s general practitioner certified her with no current capacity for work for an initial period and thereafter partial capacity, to work 15 hours per week. It was part of the worker’s case on appeal that the Member erred in placing no weight on these certificates, and instead finding that the worker had capacity to work fulltime in a clerical role.

The Appeal was heard by Deputy President Michael Snell who did not accept the worker’s submission that the Member placed no weight on the certificates, rather the Member considered their ‘probative force’ and treated them with caution.

DP Snell accepted the Member’s reasoning that when the worker was certified totally unfit for work, she was undertaking tertiary studies which would no doubt involve the ability to take notes, attend classes, prepare for assignments and use a computer. These activities would indicate a capacity for work, inconsistent with the GP’s certification.

DP Snell found no error in the Member’s reasoning for giving limited weight to the certificates of capacity. DP Snell noted that the Member exercised caution in accepting the certificates as they ‘showed little or no change over an extended period.’ Further, for a period the certificates that were issued did not include details of treatment, her management plan and were silent on the progress of the worker’s back condition.

The Member referred to the decision Keating P in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde where his Honour said: ‘the certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based.’

On this basis, DP Snell believed it was appropriate that the Member preferred the evidence of capacity contained in the treating and qualified evidence.

DP Snell also rejected the worker’s submission that the Member erred in finding that she could undertake full time sedentary work in a clerical role. It was the worker’s case that the Member made this finding in the absence of medical opinion. DP Snell noted that the worker’s own qualified evidence accepted that she was fit for light duties with restrictions. DP Snell accepted that the Member appropriately considered the functional restrictions outlined in the medical evidence and the worker’s demonstrated ability to undertake a tertiary degree to conclude that the worker had the capacity to undertake full time suitable duties in a clerical role.  

DP Snell dismissed the worker’s appeal and confirmed the Member’s finding.

Implications

This case serves as a timely reminder for insurers that they do not automatically have to accept certificates of capacity if they are inconsistent with the workers demonstrated capacity and available treating and qualified reports. The PIC may give little weight to certificates of capacity which contain limited information regarding the worker’s treatment and progress, especially if these certificates are served in the absence of reports from the relevant GP.