Hasta la Visa, Baby – Can volunteer work constitute capacity?
Ammann v State of New South Wales – Prince of Wales Hospital [2022] NSWPIC 443
The Claimant came to Australia from Switzerland to further her studies in theology. She was employed as an administrative officer at the Prince of Wales Hospital (State of New South Wales) in its cancer services unit.
The Claimant sustained a psychological injury on 18 June 2019 due to excessive workload and a lack of training and support. Since the injury, the Claimant had only carried out brief babysitting work.
In two separate letters dated 6 January 2022, the Respondent issued a work capacity decision determining a work capability of 3 hours a day, 2 days a week as well as a determination that the Claimant did not meet the requirements to receive weekly compensation after 130 weeks under section 38 of the Workers Compensation Act 1987 (NSW) (the 1987 Act).
Issues for determination
The issue in dispute was one of work capacity. Specifically, whether the Claimant could be said to have ‘no current work capacity’ or ‘current work capacity’ under the provisions of section 38(2) or 38(3) of the 1987 Act respectively.
Decision
The President’s Delegate Parnel McAdam noted that the Claimant has not returned to any employment and, therefore, the substance of the dispute was whether the Claimant had no current work capacity. However, this matter had the unusual complication that the Claimant could not currently work due to nature of her visa and could only perform voluntary work. The Claimant submitted that the definitions of ‘current work capacity’ and ‘no current work capacity’ only describe earnings and paid work, not voluntary activities.
The Respondent submitted that the fact that the work was described as voluntary was not a reflection of her capacity for work, rather it reflected the Claimant’s visa restrictions.
A primary issue before the Delegate was therefore whether voluntary activities could be considered ‘suitable employment’ as defined under section 32A of the 1987 Act. This section states that suitable employment “…means employment in work for which the worker is currently suited…” Delegate McAdam referred to the case of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) in which Deputy President Roche stated “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…the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise…”
In light of this, Delegate McAdam stated that the fact the Claimant cannot perform employment in work due to her visa only would be purely academic and is not a determinative factor. The Delegate found that there is a difference between capacity to perform voluntary work and capacity to perform ‘employment for work’. In the Delegate’s view, employment options considering only volunteer work would likely be “totally theoretical or academic”.
Delegate McAdam considered that the medical evidence before him did not explicitly differentiate between whether the Claimant could perform volunteer work but not employment in work. However, the evidence did support that the Claimant had no current work capacity. Therefore, Delegate McAdam was satisfied that the Claimant met the criteria for ongoing weekly payments under section 38(2) of the 1987 Act.
Implications
This decision highlights that when determining suitable employment, insurers must have regard to the nature of the work. The employment must be more than theoretical or academic. In situations where the Claimant is able to perform volunteer activities, evidence should be obtained as to how such work is transferrable to work in the open labour market.
Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.
