CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Drascovici v Concrete Recyclers (NSW) Ltd [2024] NSWPIC 317	
		
APPLICANT:	Mirco Drascovici	
		
RESPONDENT:	Concrete Recyclers (NSW) Limited	
		
Member:	Paul Sweeney	
		
DATE OF DECISION:	18 June 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation during second entitlement period by applicant  with accepted psychological injury; dispute as to whether he was fit for a “real job “in the labour market; Wollongong Nursing Home Pty Ltd v Dewar considered and applied; Held – acceptance of near unanimous medical evidence that the applicant could perform part-time work; determination that part-time work of product assembler or packer was “suitable employment” in accordance with section 32A; award for worker for weekly compensation.
	
determinations made:	The Commission determines:
1.	That the applicant suffered psychological injury arising out of and in the course of his employment deemed to have occurred on 6 October 2020.
2.	That the applicant was incapacitated for work as a result of the injury and paid wages or compensation until 21 June 2022.
3.	At all material times the applicant’s pre-injury average weekly earnings were $3,370.
4.	Between 22 June 2022 and 23 April 2024, the applicant was able to earn in suitable employment as that term is used in s 32A of the 1987 Act the sum of $420 per week being 15 hours at $28 per hour.
5.	Parties to confer and agree on an award that reflects these reasons.

STATEMENT OF REASONS
BACKGROUND
1.	Mirco Drascovici (the applicant) worked for Concrete Recyclers (NSW) Limited (the respondent) for 28 years. At the cessation of his employment in 2020 he was employed as a foreman.
2.	It is common ground that the applicant suffered a psychiatric injury arising out of and in the course of his employment. The respondent accepted liability to pay the applicant compensation for that injury in accordance with the Workers Compensation Act 1987 (the 1987 Act) and made payments of compensation pursuant to ss 36 and 37 of the 1987 Act for a period of 34 weeks. 
3.	The only outstanding issue between the parties is the quantification of the applicant’s entitlement to weekly payments of compensation during the balance of the second entitlement period which expired on 23 April 2024. That involves consideration of his capacity to work.
PROCEDURE BEFORE THE COMMISSION
4.	By these proceedings, the applicant claims weekly payments of compensation pursuant to s 37 for the period between 22 June 2022 and 23 April 2024.
5.	When the matter came on for a conciliation conference and arbitration hearing on 
30 May 2024, Mr Parker, of counsel, appeared for the applicant and Mr Doak, of counsel, appeared for the respondent. While there were extensive discussions during the conciliation conference, I was ultimately informed that the parties were unable to agree on a monetary figure which would reflect the applicant’s entitlement to weekly compensation between 
22 June 2022 and 23 April 2024.
6.	I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve the dispute at the preliminary conference and at the conciliation conference in the matter.
7.	At the commencement of the arbitration hearing, I was informed that it was agreed that the applicant had been paid weekly compensation for a period of 34 weeks and that his pre-injury average weekly earnings (PIAWE) was $3,370 per week. Mr Parker also sought leave to amend the Application to add a general claim for indemnity in respect of the applicant’s hospital and medical expenses pursuant to s 60. Mr Doak did not object to that amendment. 
EVIDENCE
8.	The documents before the Personal Injury Commission (Commission) are as follows:
(a)	the Application to Resolve a Dispute and the documents attached, and
(b)	the Reply and the documents attached.
9.	There was no objection to the evidence referred to above at the arbitration hearing. There was no application to adduce further written or oral evidence.
10.	When commencing these reasons, it became apparent that a report of Dr Bisht dated 
20 October 2022 to which counsel referred in argument was not reproduced in the respondent’s Reply. That document has now been forwarded to me by email. The applicant has not objected to this course of action. 
SUBMISSIONS
11.	The submissions of the parties are recorded, and I do not propose to reiterate each of their arguments in these short reasons. I will attempt to address the main thrust of counsels’ arguments when resolving the issue in dispute. 
12.	I should record, however, that Mr Parker submitted that the applicant had no residual earning capacity. He relied primarily on the opinion of Dr Debi, the applicant’s general practitioner, who had treated him since 2 July 2021. He argued that the opinion of a general practitioner, who had treated a patient consistently over a long period, should be given significant weight. He also emphasised the extent of the psychiatric symptomatology recorded by each of the three psychiatrists who provided reports in this case. That symptomatology was not consistent with the applicant maintaining any employment. 
13.	Mr Parker also launched a vigorous attack on the Earning Capacity Assessment Report dated 2 February 2024 prepared by Dr Madeleine Cannings, a psychologist, and Ines Pasic, a vocational assessor. He submitted that its conclusions were illogical and should not be accepted. 
14.	Mr Parker referred to the reasoning of Deputy President Snell in Secretary, Department of Education v Carter and to the earlier decisions of the Presidential Unit dealing with quantification of an entitlement to weekly compensation in Wollongong Nursing Home Pty Ltd v Dewar and Westpac Banking Corporation v Mani. He argued that the task of determining whether a worker had a capacity for work was ultimately one for the Commission after a consideration of all the evidence in the matter. 
15.	Mr Doak submitted that the thrust of the applicant’s submission was that the Commission should disregard the unanimous opinion of three psychiatrists that the applicant was fit for part-time selective duties, and the “unchallenged” Vocational Assessment Report. He submitted that to adopt that approach would be to determine the matter contrary to the evidence in the case. That evidence weighed heavily in favour of the finding that the applicant had a current earning capacity at all relevant times.
16.	Mr Doak emphasised the importance of the opinions of the qualified psychiatrists, 
Dr Anderson for the applicant and Dr Bisht for the respondent, and that of Dr Hong, the Medical Assessor, who assessed the medical dispute between the parties relating to permanent impairment.
17.	Before attempting to resolve the issue in dispute I intend to briefly set out the evidence of the applicant and that of Dr Anderson and Dr Bisht. What follows is not intended to be a comprehensive survey of their evidence. Rather, I record the salient aspects of the evidence so that the parties can understand the way in which the Commission has resolved their dispute.
The applicant
18.	The applicant’s evidence is contained in signed statements dated 1 November 2020 and 27 October 2023.
19.	The applicant’s initial statement is concerned with the circumstances at work which resulted in his accepted psychological injury. It is unnecessary to dwell on these events at length in view of the respondent’s admission of liability. By his statement, the applicant says that his role as a foreman involved the following:
“I am required to supervise all staff on duty, respond to requirements of the company to load, delivery, collect and store various items as instructed. My duties also include looking after the machines and making sure they all work well and safely. I also have keys to various places and must make sure that they are all locked and unlocked at the right time.”
20.	The applicant then recounts the interpersonal difficulties that occurred between him and his immediate supervisor, Anthony Males, and one of his employers, Brent Lawson, which culminated in a telephone call on 6 October 2020, while the applicant was on the way home from hospital. He recounts that Mr Males attempted to “pressure me” into seeing a company doctor for a medical examination. 
21.	The applicant recounts that following these incidents he saw Dr Low at the Health Plus Medical Centre at Menai where he was certified unfit for work and referred to a psychologist, Raquel Singh.
22.	By his supplementary statement, the applicant elaborates on the circumstances that led to the development of his psychological injury. He records that Mr Males would “often put me down in front of other people”. 
23.	The applicant says that he is doing his “best to try to recover”. He is performing nightly exercises given to him by his psychologist. He continues to consult Dr Debi and to take Sertraline for his anxiety.
Dr Anderson
24.	Dr Anderson saw the applicant and provided a report dated 19 May 2022. Dr Anderson recorded that since ceasing work on 6 October 2020, the applicant:
“has felt stressed, has slept poorly, has become increasingly depressed and has been quite preoccupied about these workplace events, understanding that he was bullied and harassed, then discriminated against. He has lost motivation, energy, and enjoyment. There is no libido. He has withdrawn from friends and social life.”
25.	Dr Anderson recorded that the applicant had sought treatment from Ms Singh, the psychologist, and his general practitioner. He recorded that the applicant did not “feel improved overall”, although he had learnt to manage his “anxiety and panic.”
26.	After carrying out a mental state examination, Dr Anderson diagnosed a major depressive disorder. He continued:
“This diagnosis is made within the DSM system of classification. He has a pervasive depression of mood with congruent loss of energy, motivation and enjoyment. There are changes in biological rhythms of sleep and appetite. There are depressive cognitions.”
27.	In respect of employment, Dr Anderson expressed the opinion that the applicant lacked the capacity to work as a foreman. He continued:
“Notwithstanding Major Depressive Disorder your client has some work capacity to engage in non-stressful, non-demanding work on a part-time basis.”
He classified him as 3 in the psychiatric impairment rating system (PIRS) on the basis that he was fit for part-time work in a less demanding capacity. The descriptors for Class 3 in the PIRS scale include that the worker:
“Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (e.g. less stressful)”.
Dr Bisht
28.	Dr Bisht initially saw the applicant on 17 November 2020 and provided a report dated 17 December 2020. After taking a history and conducting a mental state examination, he concluded that the applicant suffered an adjustment disorder. He expressed the opinion that employment was the main contributing factor to the onset of that condition.
29.	Dr Bisht expressed the opinion that the applicant had a partial capacity for work. He continued:
“He would be able to work 4 hours a day, 5 days a week, in a job that did not require him to make complex decisions/sustain intense concentration for long periods. The worker is not able to work with the pre-injury employer.”
30.	In reporting his mental state examination Dr Bisht recorded that there were no disturbances in thought connection and no deficit in concentration displayed during the interview. 
31.	Dr Bisht provided a further report to the respondent on 22 October 2023 in which he reiterated his previous opinion that the applicant had been fit for work since early 2021. In addressing the PIRS rating scale for employability, he expressed the opinion that the applicant would “the fit to return to his pre-injury role and pre-injury hours, but not with the same employer”.
LEGISLATION
32.	A worker’s entitlement to compensation during the second entitlement period must be determined in accordance with s 37 of the 1987 Act. If a worker has no current work capacity during this period, he is entitled to be compensated at the rate of 80% of PIAWE. Section 37(3) is as follows:
“(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.”
33.	Schedule 3, cl 9 of the 1987 Act defines the term “current work capacity” as:
“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 such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.”
34.	Section 32A(1) defines “suitable employment” to mean 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.”
DISCUSSION AND FINDINGS
35.	Racquel Singh, a psychologist, first saw the applicant on 29 October 2020 at the request of his general practitioner Dr Low. On 5 January 2021, she provided a short report to the respondent’s insurer. It stated:
“Mirco has been granted a new work certificate by Dr Nathan Low suggesting he return to work 3 days 8 hours starting 11 January 2021. I am in agreement with this certificate but also feel that he should continue to work 3 days a week for another week before returning full-time. Mirco is willing to trial the 3 days next week and return full-time the following week. During this transition I recommend he continue weekly sessions to assist with a better recovery outcome.”
36.	Unfortunately, the applicant was not able to return to work at that time despite the optimistic prognosis from his treating psychologist. As is often the case in workers compensation claims, the applicant’s condition may have deteriorated with the termination of his employment. That is consistent with the report of Dr Debi, the general practitioner who has treated the applicant since 22 July 2021. 
37.	By a report of 12 May 2023, Dr Debi stated that the applicant’s progress was slow, and his mood had not stabilised. He thought the prognosis was that the applicant’s condition would be “longstanding”. He continued:
“He is having low mood, insomnia which would cause poor concentration at work as well as difficulties to focus. He also [sic] anxiety regarding workplace due to exposure to bullying. Recently he did mention that he tried to work in various places provided by friends but had to leave job due to poor concentration and flashback of memories.”
38.	Dr Debi expressed the opinion that the applicant had no current work capacity due to his ongoing depression and fear of harassment and bullying in the workplace. He thought that any future offer of employment should be on a “gradual approach with a proper rehabilitation, considering his age and skills he can offer”.
39.	Mr Parker submitted that before the Commission could conclude that the applicant had a current work capacity, it was necessary to identify a real job or a segment of the labour market in which he could be employed. That is undoubtedly correct. It is not permissible to measure the applicant’s capacity to earn by reference to “made up” jobs that have been fashioned for the purpose of providing work to a disabled worker.
40.	It was also submitted that ultimately it is for the Commission to determine whether a worker can perform suitable employment as that term is defined in s 32A of the 1987 Act. Again, I accept that submission. Medical opinion that the applicant is fit for part-time work may be of little weight if, for example, the worker’s age, education, skills, and work experience would preclude his employment in such a job. 
41.	In Dewar Roche DP noted that the issue of whether a worker could perform suitable employment will often raise “issues about the suitability of the work in question”. He continued:
“Such issues will be determined on a case-by-case basis, depending on the available evidence dealing with the issues in subs (a) of the definition. In the present case, the only evidence that addressed the issue, including the evidence from Mrs Dewar was that she was fit for suitable employment, but with the restrictions noted by Dr Sherrell. Though the evidence of the kind of jobs Mrs Dewar could not perform, given her present inability arising from her injury, was in a most unsatisfactory state, that did not relieve the arbitrator from performing his statutory task.”
42.	It was submitted that I should accept the evidence of the applicant’s general practitioner, 
Dr Debi, that he had no current capacity for work. Dr Debi, in contrast to the rest of the medical evidence, had addressed the matters contained in the definition of “suitable employment” in s 32A.
43.	While I accept that the evidence of a general practitioner is always entitled to serious consideration, it must be weighed in the context of the entirety of the evidence. Certainly, general practitioners often see their clients over long periods of time and may be more familiar with the idiosyncratic features of an injury than a specialist, who may only see the worker spasmodically. On the other hand, specialist psychiatrists by reason of their training and expertise are often best placed to determine classification, causation, and capacity in a psychiatric case.
44.	In this case, the Commission has the advantage of a Medical Assessor appointed to assess the applicant’s entitlement to whole person impairment. By his certificate of 17 October 2023, Dr Hong diagnosed a major depressive disorder. On his physical examination of the applicant, he noted that he was not thought disordered, gave a clear history, and was consistently focused throughout the examination. His approach to employment was similar to that of Dr Anderson. He concluded that the applicant was unfit for full-time work. He stated, however:
“He can manage lower stress employment at around 20 hours per week. He can no longer work for the same employer.”
45.	The unanimity of opinion between the three psychiatrists who have examined the applicant on the issue of his capacity to perform employment is striking. These opinions are also consistent with that of Ms Singh, in her brief report, although I acknowledge that that report is now dated. This rare consensus between the treating psychologist and the three psychiatrists who have provided reports leads to the conclusion, on the balance of probabilities, that the applicant does have a capacity to perform part-time work in non-stressful employment. In my opinion to reach any other conclusion would be to determine the matter contrary to the evidence. My conclusion, of course, raises the question of whether such jobs exist in the labour market. 
46.	The earning capacity assessment tendered by the respondent concluded that the applicant’s symptomatology would be:
“best accommodated in a part-time role working 15 hours a week, in a less demanding position, where he can take regular breaks and manage his concentration and motivation difficulties.”
47.	The authors of the report concluded that the applicant was suited to the role of product assembler, packer, and light delivery driver working 15 hours per week. They gave reasons as to why they concluded these jobs were suitable. Their reasoning is consistent with the Commission’s understanding of the labour market.
48.	Mr Parker submitted that the reasoning in the report was flawed as the authors relied upon performance of domestic tasks as a basis to assign suitable jobs. I generally have little regard to earning capacity assessments as they are often partisan and not informative. In this case, however, Dr Cannings appears well qualified to assess a capacity to work flowing from a psychological injury. She has a doctorate in that discipline. The authors of the report have written a comprehensive and sympathetic report.
49.	More importantly the opinions on work capacity in the report are substantially consistent with the opinion of the applicant’s treating psychologist, and the opinions of Dr Anderson and 
Dr Hong. It must be borne in mind that Ms Singh concluded that the applicant was fit for some work several years ago.
50.	I have some difficulty accepting the assertion that the applicant could perform driving work, given his psychological injury and its sequelae. That may expose him and others to unnecessary risks. On the other hand, I see no reason why the applicant could not perform the role of a packer or of a product assembler. While Mr Parker criticised the reasoning in the report, there was no contrary evidence other than the opinion of Dr Debi.
51.	Thus, as Mr Doak submitted, the weight of the evidence undoubtedly points towards the applicant having a current work capacity as there are suitable jobs on the labour market that he could perform on a part-time basis. I accept the evidence of the vocational assessors that it would be ideal for the applicant to commence employment working 15 hours per week. That is consistent with the opinion of both Dr Anderson and Dr Hong who plainly thought that the applicant was only capable of working on a part-time basis. It follows that I do not accept the opinion of Dr Bisht that the applicant is fit for full-time work. Like the opinion of Dr Debi his opinion does not sit comfortably with the balance of the evidence. 
52.	As the applicant would be re-entering the workforce after a long period of absence and in roles with which he is unfamiliar, it is unlikely that he would attract the median or average earnings of employees in those job classifications. I am of the view that, at least initially, he would attract salary on a casual basis of $28 per hour which is $420 per week.
53.	On my calculations, that would entitle the applicant to an award at the maximum statutory rate throughout the period of the claim. However, for more abundant caution I intend to ask the parties to agree on entitlement to compensation that flows from these reasons.
54.	 I, therefore, propose to find as follows:
(a)	that the applicant suffered psychological injury arising out of and in the course of his employment deemed to have occurred on 6 October 2020;
(b)	that the applicant has been incapacitated for work as a result of the injury and paid wages or compensation until 21 June 2022;
(c)	at all material times the applicant’s PIAWE was $3,370;
(d)	between 22 June 2022 and 23 April 2024, the applicant was able to earn in suitable employment the sum of $420 per week being 15 hours at $28 per hour, and
(e)	parties to confer and agree on an award that reflects these reasons.