Acevedo-White v Secretary, Department of Education (NSWPIC 2024)

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Key Takeaways

The phrase ‘employment in work’ in the definition of suitable employment in s32A of the Workers Compensation Act 1987 (the 1987 Act), refers to real work in the labour market. That is, a real job in employment for which the worker is suited.

A worker’s subjective view of what they can and cannot do is relevant in quantifying their ability to earn in suitable employment.

Brief Facts

The worker was employed as a teacher and Assistant Principal. It was accepted that she sustained a compensable psychological injury arising out of or in the course of her employment.

The worker sought weekly benefits on an ongoing basis from 18 January 2023. The issue in dispute was the extent and quantification of incapacity resulting from the injury from 18 January 2023 to date and continuing.

Judgment

The worker developed a chronic adjustment disorder with anxiety and depressed mood in the context of work stressors.

The worker’s medical evidence was that she was unfit for her pre-injury duties, however she might be able to work in a supportive environment with a gradual return to full-time hours. However, the certificates of capacity issued by her general practitioner certified her as having no current capacity for employment.

The employer’s medical evidence was that the worker had a partial capacity to return to work for 20 hours per week in suitable employment and that she had no capacity for her pre-injury role.

Although the worker’s general practitioner had continued to certify her as totally unfit for work, and the worker had not returned to work, she conceded that she had capacity to work in suitable duties for 20 hours per week from 18 July 2023, as indicated in the employer’s medical evidence.

It was noted that the employer had not provided any vocational assessment or rehabilitation opinions as to what the worker could actually do. The worker submitted that, at best, she might be able to participate in some casual work, including some event-based work.

The employer argued that the worker interpreted their IME’s medical opinion to mean that she was unfit for any teaching role (i.e. her pre-injury role) anywhere. The employer suggested that this submission was misconceived. The employer referred to the definition of suitable employment in s32A of the 1987 Act and submitted that there was no evidence as to what would constitute suitable employment other than part-time teaching duties or “her pre-injury role” (albeit in a different location).

Member Rachel Homan discussed the meaning of “suitable employment” in s32A of the 1987 Act. It was noted that 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.

The dispute between the parties revolved around quantification of the worker’s ability to earn in suitable employment.

The employer had suggested that the worker had capacity to engage in suitable employment as a teacher or Assistant Principal in an alternative location or in a temporary placement. The Member was not satisfied that this submission was supported by the medical evidence, nor that the worker could work in such roles with a different employer. It followed that the Member did not accept that a proportion of the worker’s PIAWE constituted a sound basis on which to estimate her ability to earn in suitable employment.

The IME evidence did not articulate the type of role the worker would be suited to. The worker however suggested that she might be capable of working as a tutor or casual relief teacher. It was accepted that the worker could work casually or part time as a tutor or art teacher in a small group setting and that this would constitute suitable employment.

Ultimately, the Member accepted the worker’s submissions that an earning capacity of between $40 and $45 per hour in such work was appropriate, therefore assessing her present ability to earn $800 per week in suitable employment.

Implications

In this case, there was no vocational or labour market evidence identifying the type of role the worker would be suited to and ultimately the Member accepted the worker’s evidence in respect of what she could earn in suitable employment.

This case highlights that a worker’s subjective view of what they can and cannot do, although not determinative, is relevant in quantifying their ability to earn in suitable employment. It is therefore always prudent to obtain relevant vocational and labour market evidence articulating a worker’s suitable vocational options and the potential earnings for each role identified.