Agha v Jetstar Services Pty Limited
[2021] NSWPIC 207
•24 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Agha v Jetstar Services Pty Limited [2021] NSWPIC 207 |
| APPLICANT: | Walid Agha |
| RESPONDENT: | Jetstar Services Pty Limited |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 24 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly payments of compensation for an accepted injury to the left foot but injury to left knee, left hip and lower back and/or a consequential condition affecting those body parts in dispute; order also sought for the respondent to meet the costs of left hip surgery; reference to Moon v Conmah Pty Ltd in consideration of the claims for consequential conditions; worker commences self-employed work as Uber driver and consideration of whether decisions in J and H Timbers v Nelson and Cage Developments Pty Ltd v Schubert no 1 remain applicable to a determination of current weekly earnings, which requires a determination of the greater amount of the worker’s actual earnings and the worker’s ability to earn in suitable employment; Held – award for the respondent for the claims of injury to the left knee, left hip and lower back, and consequential condition affecting the left knee; finding that the worker developed a consequential condition affecting his left hip and lower back as a result the injury to left foot; award of weekly payments for no current work capacity for one month and award of partial incapacity after consideration of the details of earnings provided by worker while working as an Uber driver; order for the respondent to meet payment of past treatment for the lower back and left hip and for the proposed surgery to the left hip. |
| DETERMINATIONS MADE: | 1. An award for the respondent on the claims made by the applicant that he sustained an injury to the left hip or left knee or lumbar spine on 1 July 2019. 2. An award for the respondent on the claim made by the applicant that he has sustained a consequential condition affecting his left knee as a result of the injury on 1 July 2019. 3. The applicant has sustained a consequential condition affecting his left hip and lower back as a result of the injury on 1 July 2019. 4. The applicant had no current work capacity from 30 July 2020 to 31 August 2020. 5. The applicant has had a partial incapacity for work from 1 September 2020 to date and continuing. 6. The repair of the left labrum and bony decompression of the left femoral head neck junction proposed by Dr Randhawa is reasonably necessary as a result of the injury sustained by the applicant on 1 July 2019. 7. Treatment for the applicant’s left hip and lower back conditions are reasonably necessary as a result of the injury sustained by the applicant on 1 July 2019. |
| ORDERS MADE | 1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $1,300.16 per week from 30 July 2020 to 31 August 2020 pursuant to section 37 (1) of the Workers Compensation Act 1987, and (b) $384.27 per week from 1 October 2020 to date and continuing pursuant to section 37(2) of the Workers Compensation Act 1987. 2. Pursuant to section 60(5) and section 61(4A) of the Workers Compensation Act 1987, the respondent is to pay for the repair of the left labrum and bony decompression of the left femoral head neck junction proposed by Dr Randhawa, and expenses reasonably incidental to that surgery. 3. The respondent is to pay the reasonably necessary medical expenses for the applicant’s treatment for his left hip and lower back as a result of the injury sustained by the applicant on 1 July 2019. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Walid Agha, sustained a crush injury to his left foot on 1 July 2019 while employed as a baggage handler with the respondent, Jetstar Services Pty Limited.
The applicant admitted liability for this injury. The applicant returned to light duties on 26 August 2019 and was back to full duties by January 2020. The applicant’s shifts were significantly reduced from April 2020 as a result of the coronavirus pandemic.
The applicant completed a recurrence form on 27 July 2020 claiming an injury to his lower back as a result of having to limp due to the injury to his left foot.
On 30 July 2020 the applicant’s general practitioner, Dr Al-Essawy, issued a Certificate of Capacity certifying the applicant as having no current work capacity due to an injury to the left leg and lower back.
On or about 1 September 2020 the applicant commenced work as a self employed Uber driver. The applicant claims that he works between 15 and 18 hours per week as an Uber driver and usually earns between $400 and $560 per week. The applicant claims that 15 to 18 hours of Uber driving work each week is the extent of his capacity to work due to ongoing pain in his left groin and left hip.
The applicant claims that he sustained injury to his left hip, left knee and lower back in the incident on 1 July 2019, and that he has sustained a consequential condition affecting his left knee, left hip and lower back as a result of walking with a limp due to the injury to his left foot.
The respondent disputes that the applicant sustained injury to his lower back, left knee and left hip in the incident on 1 July 2019, or that the applicant has a consequential condition affecting his left knee, left hip and lower back as a result of the injury to his left foot.
The respondent disputes that the applicant has any total or partial incapacity for work as a result of any injury sustained on 1 July 2019 or any consequential conditions.
The applicant has been advised by Dr Randhawa to undergo an arthroscopic repair of the left labrum and a bony decompression of the left femoral head neck junction and seeks an order for the cost of this surgery to be met by the respondent. The respondent disputes liability for the cost of that surgery.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his left hip and/or left knee and/or lower back in the course of his employment with the respondent on 1 July 2019 (section 4 of the Workers Compensation Act 1987 (the 1987 Act));
(b) whether the applicant sustained a consequential condition affecting his left knee and/or left hip and/or lower back as a result of the injury on 1 July 2019;
(c) whether the applicant has been incapacitated for work as a result of the injury on 1 July 2019, and/or any consequential condition, since 1 September 2020, and the extent of that incapacity (sections 32A, 33 and 37 of the 1987 Act);
(d) the determination of the applicant’s current weekly earnings for any period of partial incapacity (clauses 6 and 8 of Schedule 3 of the 1987 Act);
(e) whether medical expenses incurred for treatment of the left knee, left hip and lower back are reasonably necessary as a result of the injury sustained by the applicant on 1 July 2019 (section 60 of the 1987 Act), and
(f) whether the arthroscopic repair of the left labrum and a bony decompression of the left femoral head neck junction proposed by Dr Randhawa is reasonably necessary as a result of the injury sustained by the applicant on 1 July 2019 (section 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 28 May and 8 June 2021. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Boulton appeared for the applicant, instructed by Mr Khan. Mr Doak appeared for the respondent, instructed by Mr Mileski.
The hearing was conducted by telephone in accordance with the protocols set out by the Commission due to the coronavirus pandemic.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,625.20.
The respondent objected to three Profit and Loss Statements from the applicant regarding his revenue and expenses as an Uber driver being admitted into evidence on the grounds that no primary documents had been produced by the applicant to verify how the revenue and expenses have been calculated. In the alternative, the respondent requested a short adjournment to undertake more enquiries as to how the amounts in those statements were calculated.
After hearing submissions from the parties, I allowed the documents into evidence because they were provided in answer to a Notice for Production served by the respondent, and thereafter it becomes a matter of weight to be given to those particular documents in determining what has been the earnings of the applicant while working as an Uber driver. An adjournment was not allowed as there was no indication from the applicant that any further material would be forthcoming from his answer to the Notice for Production.
The respondent also objected to parts of a further statement from the applicant dated 4 May 2021 wherein the applicant sought to provide details of prior problems with his lower back and to explain how previous lower back pain was different to the lower back pain he has experienced since the injury of 1 July 2019. This was to address a previous statement he had made on 24 September 2020 that: “I have not had any previous physical injuries.”
After hearing submissions from the parties, I disallowed those parts of the applicant’s statement dated 4 May 2021 which were complained of by the respondent because the respondent had not had sufficient time to investigate this issue and the respondent had understood prior to the filing of the Application to Resolve a Dispute (ARD) that the applicant had no prior injuries.
Mr Boulton for the applicant asked that it be noted that the applicant attended an examination with Dr Nair at the request of the respondent on 18 February 2021. Mr Doak advised that there was no dispute from the respondent that this did in fact occur.
Mr Doak was not able to appear on the adjourned hearing date of 8 June 2021, and Mr Boulton agreed to allow the respondent until 11 June 2021 to provide written submissions. The applicant was given until 16 June 2021 to provide any written submissions in reply.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant on 4 May 2021 (with the exception of paragraphs 14 to 17 of the applicant’s statement dated 4 May 2021);
(d) Application to Admit Late Documents filed by the respondent on 21 May 2021;
(e) the applicant’s wages schedule;
(f) the respondent’s wages schedule;
(g) written submissions filed by the respondent on 11 June 2021, and
(h) written submissions in reply filed by the applicant on 16 June 2021.
Oral evidence
There was no application to cross examine the applicant or any other witnesses who have provided written statements, or to adduce oral evidence.
The applicant’s evidence
The applicant has provided statements dated 14 September 2020, 23 February 2021 and 4 May 2021.
In his first statement dated 24 September 2020, the applicant states that on 1 July 2019 he was steering a dolly from the front when the wheel of the dolly touched the kerb of the pavement, causing the dolly to hit the applicant’s left leg. He states: “It was a crush injury between the machine and pavement”, and he sustained a fracture of the fifth bone in his left foot.
The applicant completed a claim form on 4 July 2019 and stated that his injuries were: “Soft tissue injury left leg. Fracture 5th metatarsal left foot.” The applicant described the incident in the claim form as:
“Leading Hand was driving at the back to push the dollies and I was steering the arm at the front where the arm got stuck and got the wheel hit the sidewalk of the baggage carousel and got the arm hit my leg which had my leg stuck between.”
The applicant states that he was taken to St George Hospital but discharged later that day. In his second statement dated 23 February 2021, the applicant states that when he suffered the injury on 1 July 2019, his main focus was on his left leg and foot, but that he also had pain in the lower back, left hip and left knee in the days after the injury. He states that he “never formally reported” these other problems because he thought they were related to his left leg injury and would resolve over time.
The applicant states that he returned to light duties work on 26 August 2019. He states that he was doing mainly office work. He states that he started his normal shift as a baggage handler on 8 December 2019. The applicant states that his left foot was not a hundred percent when he went back on full duties and that he was limping. He states that he did not report this to anyone.
The applicant states that his shifts were significantly reduced in April 2020 due to the effects of Co-vid 19.
The applicant states that he began to notice an intensity of back pain and left leg pain upon his return to work. He states that he attended his general practitioner, Dr Al-Essawy, on 24 or 25 June 2020 and complained of lower back pain and left hip pain. He states that he was referred to Dr Konidaris and saw that doctor on 27 July 2020. The applicant states that on that same day he called Allianz and his employer to report his injury.
The applicant completed a recurrence form on 27 July 2020 which stated that the parts of the body that were injured at the time of the original injury were the left foot and left leg, and that the part of the body that was injured at the time of recurrence was the lower back. The recurrence form also states that the injury to the left leg and foot caused the applicant to limp.
The applicant states that on 20 August 2020 he was kneeling to pray and his left knee, which “I always complained of along with my hip and the back”, clicked and locked. The applicant states: “This injury is from the original reported injury from Jetstar.”
The applicant states that he was paid Jobkeeper when the respondent was not able to provide shifts to him. He states that he was stood down by the respondent for the final time due to Co-vid 19 on 5 August 2020. The applicant continued to be paid Jobkeeper until the end of October 2020, when his position was made redundant by the respondent.
The applicant states that “out of financial necessity in order to support my family”, he began to do Uber driving work as of 1 September 2020. He states that this work is very convenient for him because he is able to work when and where he wants to, and he is not constrained by certain hours of work. He states that some days he could work most of the day and at other times, when his injuries are affecting him, he chooses not to work at all.
The applicant states that he estimates he performs 15 to 18 hours per week doing Uber driving work. He states:
“I continue to experience pain but my main problem is in my groin and left hip area. This is the problem that affects me the most and restricts my ability to work. Because of this pain I have difficulty standing up and/or sitting down for long periods of time.
I believe that the hours that I currently work through Uber would be the maximum capacity I could perform with my injuries the way they are.”
The applicant states that if he does a number of jobs in a day then he will be particularly sore and will struggle to work the next day. He states that because of this he will often work alternate days. He states that he will stretch his legs and walk around a little when he is taking a break between jobs to change his posture.
The applicant has provided copies of his Uber driving invoices from 7 September 2020 to 5 April 2021, and his Profit and Loss Statements for the quarters ending September 2020, December 2020, and March 2021. In his statement dated 23 February 2021, the applicant states that his average earnings after expenses from Uber driving is $561 per week.
The applicant states that he was referred to Dr Randhawa, who has recommended an operation to relieve the applicant’s left hip and groin pain. The applicant states that he wishes to proceed with this operation because he has put up with the pain for so long, and physiotherapy and injections have not resolved his problems.
The respondent’s lay evidence
There are statements in the Reply from four employees of the respondent.
Brett Lee has provided a statement dated 22 September 2020. Mr Lee states that he is employed as a Ramp Services Manager. He states that the applicant returned to light duties following his left foot injury on 26 August 2019 and that the applicant mainly sat at a computer during his shift.
Mr Lee states that the applicant returned to full duties on 10 January 2020. He states that from the applicant’s rosters he can see that the applicant mainly did ramp driving and might lift bags occasionally. He states that when he saw the applicant at work he never saw the applicant limping or exhibiting any injury, and the applicant never told him of any pain or new injury.
Ryan Lewis has provided a statement dated 28 September 2020. Mr Lewis states that he is employed as a Ramp Duty Manager. Mr Lewis recalls the applicant returning to work in about January 2020 and that he worked with the applicant for about six to ten shifts before the Covid-19 stand down on 1 April 2020.
Mr Lewis states that the applicant appeared to be in good physical condition and he did not observe the applicant limping.
Mr Lewis states that he saw the applicant on three or four occasions during ‘stand up’ periods after 1 April 2020 and was not given any indication by the applicant of any recurrence of his initial injury. Mr Lewis states that he makes a point of talking to staff about their welfare.
Peter Mourgelas has provided a statement dated 20 October 2020. Mr Mourgelas states that he is employed as a Ramp Duty Manager. He recalls that the applicant wore a moon boot when he returned to work. He states that the applicant initially complained about his injury but “seemed to recover ok.”
Mr Mourgelas states that he does not remember the applicant showing signs that he was injured during the time the applicant was back on full duties. He states that one of the applicant’s jobs would have been to push stairs to and from an aircraft.
Fahad Ali has provided a statement dated 29 October 2020. Mr Ali states that he is employed as a Ramp Duty Manager. He states that the applicant reported to him before the applicant’s work injury, but he only saw the applicant sporadically when the applicant returned to full duties.
Mr Ali states that he did not observe the applicant limping or with restricted movement during the time that the applicant was back on full duties. He states that he had a conversation with the applicant on 24 June 2020 and the applicant told him that everything was fine and good, and that he recorded this on a welfare check document.
The medical evidence
The first entry at a general medical practice following the injury is by Dr Almansur on 2 July 2019, which records “a left leg foot injury at work yesterday.” There is no reference in the records of Dr Almansur to the lower back, left hip or left knee in 19 consultations the applicant had with Dr Almansur between 2 July 2019 and 13 January 2020.
There is a report from Dr Konidaris, orthopaedic surgeon, dated 15 August 2019, wherein Dr Konidaris writes that the applicant sustained a fracture at the base of the fifth metatarsal, but even if there is a non-union, it is unlikely to cause ongoing symptoms. There is no reference in that report to any symptoms in the lower back, left hip or left knee. Dr Kondaris notes that “along the way” the applicant developed increasing pain and erythema in the left leg with an infection.
There are reports from Wilson Ngo, physiotherapist, dated 14 October and 31 October 2019. Mr Ngo records the applicant treadmill jogging at “Speed 5.0 for 5 mins, no concerns.” There is no reference in those reports to the applicant having any symptoms in the lower back, left hip or left knee, or any limping.
There is a report from Dr Al-Essawy dated 18 February 2021, wherein Dr Al-Essawy
writes that the applicant was seen on 25 June 2020 with pain in the lower back left side.
Dr Al-Essawy writes that the applicant mentioned a work injury to the left foot and since then the applicant started to have pain in the left knee, and hip and back on the left side.
There is an undated Certificate of Capacity from Dr Al-Essawy certifying the applicant having no current work capacity from 30 July 2020 to 21 August 2020 due to a soft tissue left leg injury and fracture of the fifth metatarsal, which effected posture and led to lower back pain.
There are also clinical notes from Myhealth Brigadoon Revesby, the practice which
Dr Al-Essawy works from, which cover the period from 19 February 2020 to 8 October 2020. There is no reference to limping or symptoms in the back, left hip or left knee until 25 June 2020, when there is a reference to lower back pain.The applicant was referred back to Dr Konidaris. In a report dated 27 July 2020, Dr Konidaris records the applicant having an onset of left buttock and groin pain, with pain radiating down the left thigh in April 2020. Dr Konidaris records that the applicant does not complain of lower back pain but does complain of iliolumbar region pain. He records that the applicant can walk independently.
Dr Konidaris writes:
“There maybe an indirect link between the foot injury and his current symptoms which I feel do relate to SI joint incompetence with secondary impingement because of his chronic limping and compensation mechanisms.”
In a report dated 20 August 2020, Dr Konidaris writes that he would be happy for the applicant to participate in an office role where the applicant could take frequent breaks from prolonged sitting.
In a report dated 10 September 2020, Dr Konidaris records that the applicant had a flare up of left knee pain when he was praying. Dr Konidaris writes that the applicant “has previously complained of left knee pain and feels that this relates to his initial injury in July of last year.” Dr Konidaris records that a MRI scan of the left knee revealed a medial meniscal tear
with a displaced meniscal fragment. Dr Kondaris recommended that the applicant see Dr Randhawa for further treatment of the left hip.In a report dated 14 October 2020, Dr Randhawa records that the applicant has had an altered gait since the injury to his left foot in July 2019. He records that the applicant has hitched his left hip and left leg up when mobilising, which puts increased force through the left hip.
Dr Randhawa records that on examination, the applicant walks with an antalgic gait to the left leg.
Dr Randhawa also writes that the applicant reports that he had hip and left sided back pain at the time of the accident but that the applicant focussed on his left leg because that was the more severe injury.
Dr Randhawa recommends a repair of the left labrum and a bony decompression of the femoral head neck junction by arthroscopy with the aim of improving hip, groin and thigh pain, and that there is also a chance that this surgery might have a flow on effect in improving the applicant’s lower back pain.
Dr Randhawa concludes:
“I can state with confidence that Walid’s left hip injury and need for surgery is a direct cause and effect relationship from his initial work place injury in July 2019. The twisting force and fall he encountered and the altered gait in the following months is a known mechanism of injury to the labrum of the hip.”
In a report to the applicant’s solicitors dated 1 March 2021, Dr Randhawa writes:
“My diagnosis was that due to the trauma that Mr Agha suffered to his left leg, with twisting force through the limb, as well as the ensuing period of non-weight bearing and altered gait and forces through the left hip, he suffered his labral tear and bony contusion to his left hip.”
Dr Randhawa opines that the applicant is very disabled with his left hip. Dr Randhawa considers that the applicant can only sit for 15 to 20 minutes at a time before he has to stand up and stretch out to gain relief and can walk up to 250 metres before he needs to take a break.
Dr Randhawa concludes:
“Mr Agha currently has limited work capacity due to his left hip pain and disability. He is not able to partake in any activities that involve standing, weight bearing or pushing and pulling. He is only able to partake in duties that involve desk and sitting down tasks. Even these tasks are limited as he needs to take frequent breaks to stand up and stretch his hip out.”
Dr Guirgis, orthopaedic surgeon, has provided a report at the request of the applicant’s solicitors dated 10 November 2020. In that report, Dr Guirgis records that the applicant sustained a crush injury to his left leg on 1 July 2019. Dr Guirgis records that as time passed and the pain of the fracture of the left foot settled down, the applicant continued to have a limp which the applicant thought was causing problems in his left knee, left hip and left sacroiliac joint area.
Dr Guirgis includes some photographs of the applicant’s lower left taken a few days after the incident and then proceeds to opine that the photographs “highlighted the mechanism of injury to his left leg and foot being the application of eccentric valgus overloading to the left leg including his left knee and left hip.”
Dr Guirgis opines that a valgus stress was applied to the left knee, left hip and left sacroiliac joint at the time of the incident. He also opines that:
“…on the balance of probabilities the altered protective antalgic gait during the few months after the fracture provided relative protection to the more proximal regions of his left leg and that protection was lost after he started putting his full weight on his injured left foot and walk without the protection of the limp.”
Dr Guirgis diagnoses post-traumatic symptoms in the left foot (following the fracture of the left metatarsal bone), post-traumatic symptoms in the left knee and left hip caused by contusion and spraining, and post-traumatic symptoms of left sacroiliac joint derangement syndrome.
Dr Guirgis opines that the applicant is totally unfit for any physical type of work pending the completion of his treatment.
In a further report dated 28 November 2020, Dr Guirgis states, after being provided with a copy of the report from Dr Randhawa dated 14 October 2020, that upon reconsideration his opinion is that the left hip and knee and back were injured in the original incident and were also aggravated as consequence of the “main injury” to the left leg due to altered gait.
FINDINGS AND REASONS
Whether the applicant sustained an injury to his left knee, left hip and/or lower back in the course of his employment with the respondent on 1 July 2019
Mr Boulton for the applicant submits that there is no medical evidence against the claims brought by the applicant.
Mr Doak for the respondent submits that although there is no competing evidence relied upon by the respondent, the Commission is still required to be satisfied that the medical opinion relied upon by the applicant provides a proper evidentiary basis to the allegations of injury. Mr Doak submits that the medical opinions relied upon by the applicant are based upon an inaccurate history of the initial injury and cannot be given any evidentiary weight.
The claim form completed by the applicant three days after the incident states that the body parts which were affected were a soft tissue injury to his left leg and a fracture of the left foot. There is no reference to his left knee, left hip or lower back.
The applicant states that he “never formally reported” problems with his lower back, left hip, or left knee because he thought they were related to his left leg injury and would resolve over time. However, despite the passage of a year, the applicant did not state that he had injured his left knee, left hip or lower back in the initial incident when he completed the recurrence form.
It is well accepted in this jurisdiction that caution must be exercised when relying on clinical notes from a busy medical practice (see Santow JA in Nominal Defendant v Clancy [2007] NSWCA 349). However, there is just no reference to any injury being sustained by the applicant to his left knee, left hip or lower back in the clinical notes from 19 consultations the applicant had with Dr Almansur throughout the second half of 2019, or the clinical notes from Dr Al-Essawy between 19 February 2020 and 25 June 2020.
Nor is there any reference to an injury being sustained by the applicant to his left knee, left hip, left groin or lower back in the reports provided by Mr Ngo in October 2019, or in the report from Dr Konidaris in August 2019. While a common response to a specialist not including an injury to a body part is that the specialist will concentrate on the body part or parts requiring immediate attention, Dr Konidaris not only took a history of the injury to the applicant’s left foot and leg, but also the subsequent infection to the left leg. Yet no details are taken by Dr Konidaris of any injury to the left knee, left hip or lower back.
Mr Doak also points out in his submissions that no clinical notes are provided from St George Hospital, which the applicant attended following the incident. Those notes would have provided a contemporaneous record of body parts complained of by the applicant soon after the incident, and may have assisted in the determination of whether the applicant sustained injury to parts of his body other than his left foot and leg.
The medical support for the claims for injury to the left knee, left hip and lower back on 1 July 2019 are provided by Dr Randhawa and Dr Guirgis, although the opinion provided by Dr Randhawa is limited to the claim of an injury to the left hip.
Dr Randhawa opines that the applicant has sustained a labral tear and bony contusion to the left hip due to the twisting force through the left leg during the incident on 1 July 2019 and the ensuing period of altered gait and forces through the left hip. Dr Randhawa also accepts that the applicant had hip and left sided back pain at the time of the accident but that the applicant focussed on his left leg because that was the more severe injury.
Given the lack of any reference to an injury to the left hip on 1 July 2019 in the clinical notes from the applicant’s general practitioners or in the reports from Mr Ngo and Dr Konidaris, or from documents completed by the applicant himself soon after the incident and in a recurrence form, I cannot accept the opinion provided by Dr Randhawa that the applicant sustained an injury to his left hip on 1 July 2019.
I agree with the submission made by Mr Doak that the lack of reference to any injury to the left hip in the contemporaneous records which I have referred to does not provide a “fair climate” for the opinion reached by Dr Randhawa that during the incident on 1 July 2019 the applicant sustained an injury to his left hip.
The applicant is then left with the opinion of Dr Guirgis. Dr Guirgis takes a history of the applicant sustaining a crush injury to his left leg on 1 July 2019, and then as time passed and the pain of the fracture of the left foot settled down, the applicant continued to have a limp which the applicant thought was causing problems in his left knee, left hip and left sacroiliac joint area.
That initial history of injury in the report of 10 November 2020 only refers to injury to the left leg, including the left foot. Later in that report Dr Guirgis opines that the energy of a stress overload at the time of the incident applied a valgus stress to the left knee, left hip and left sacroiliac joint.
There are a number of difficulties in accepting the opinion of Dr Guirgis. Firstly, there is the same problem which has been identified when considering the opinion of Dr Randhawa so far as it relates to a frank injury being sustained to the left hip, being the lack of reference to any injury to the left hip, left knee or lower back in the contemporaneous medical records or documents completed by the applicant in support of his claim.
Secondly, Dr Guirgis concludes that the applicant has post traumatic symptoms in the left hip, left knee and left sacroiliac joint, without explaining what “post traumatic” means in the context of the applicant’s complaints. It is not clear whether Dr Guirgis is referring to the left knee, left hip and left sacroiliac joint being traumatised in the subject incident or those body parts being traumatised as a consequence of that incident.
Thirdly, there is a lack of explanation provided by Dr Guirgis as to how the symptoms complained of by the applicant in the left knee, left hip and lower back were caused by what occurred to the applicant on 1 July 2019. McColl JA (Mason P and Beazley JA agreeing) said in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (Hevi Lift) at [84]: “It has been long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it.”
Although Dr Guirgis includes some photographs of the applicant’s lower left leg taken a few days after the incident, there is no explanation as to how those photographs “highlighted the mechanism of injury to his left leg and foot being the application of eccentric valgus overloading to the left leg including his left knee and left hip.” There is no explanation as to how a valgus stress to the left knee, left hip or left sacroiliac joint (assuming that did in fact occur) caused particular pathology to any of those body parts.
Dr Guirgis also concludes that abnormal findings on MRI scans that relate to the left hip and left knee are causally connected to the post traumatic symptoms complained of by the applicant without explaining whether that has occurred as a result of the incident itself or as a consequence of the injuries sustained as a result of the incident.
Mr Boulton submits that the applicant has provided a plausible reason for the applicant not complaining of injury to other body parts, being his belief that those body parts would improve as the injury to his left foot and lower leg healed.
However, it is my conclusion that the applicant did not sustain an injury to his left knee, left hip or lower back on 1 July 2019. There is no reference to any frank injury to those body parts in the records of the applicant’s general practitioners, Mr Ngo or Dr Konidaris. There are no clinical notes from the applicant’s attendance at St George Hospital on the day of the incident which would assist with this issue. There is no reference to an injury to the left knee, left hip or lower back in the claim form completed by the applicant three days after the incident, and when the applicant had the opportunity to reflect on the incident a year later when completing the recurrence form, there is still mention of injuries to those body parts.
Even in the absence of medical evidence relied upon by the respondent, the weight of evidence favours a finding that the applicant did not sustain an injury to his left hip, left knee or lower back on 1 July 2019.
Whether the applicant developed a consequential condition affecting his left knee and/or left hip and/or lower back as a result of the injury on 1 July 2019
The respondent contends that the lack of contemporaneous records of the applicant having any limping or altered gait casts significant doubt on the opinions reached by Dr Konidaris, Dr Randhawa and Dr Guirgis as to whether the applicant has developed consequential conditions affecting his left hip, left knee and/or lower back.
The respondent also relies upon the evidence of four employees of the respondent who state that they never observed the applicant limping or having any problems performing his pre-injury duties upon his return to work following the injury.
The respondent’s defence of the claims for consequential conditions is made notwithstanding there is no independent medical opinion relied upon by the respondent on this issue and no report has been provided by Dr Nair.
The determination of whether a pathological condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon vConmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
Deputy President Roche then proceeded to state that the expression “results from” should be applied using the principles set out by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). In Kooragang Kirby P said at [462]:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act”.
Kirby P then said at [463]-[464]:
“…What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury… is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions”.
There is no reference to the applicant having an altered gait or limping in the records of 19 consultations the applicant had with Dr Almansur between 2 July 2019 and 13 January 2020. There is no reference to the applicant having an altered gait or limping in the clinical notes from Dr Al-Essawy between 19 February 2020 and 25 June 2020.
However, the notes from Dr Almansur indicate that the applicant required many attendances over a period of six months for the treatment of the injury to his left foot, including an infection in the lower left leg a few weeks after the injury itself.
Dr Konidaris does not record any altered gait when he sees the applicant in August 2019, but he does record swelling and discolouration in the lower leg. Dr Konidaris also writes that the soft tissue component of the injury extending into the lower left leg can take many months to settle down.
Mr Ngo records in late October 2019 that the applicant is able to jog on a treadmill but also states that the applicant needs to continue to strengthen his lower limb and improve his balance.
The applicant was still using a “postop shoe” when he saw Dr Konidaris on 15 August 2019. Mr Mourgelas recalls seeing the applicant wearing a moon boot on the applicant’s return to work to do office duties.
While those records which I have referred do not specifically refer to the applicant limping or having an altered gait, they do reveal the ongoing difficulties which the applicant had with the use of his left leg in the second half of 2019. When the applicant returns to see Dr Konidaris in July 2020, Dr Konidaris is prepared to opine that there is a likely link between the left foot injury and pain around the left groin, buttock and hip region due to “chronic limping and compensation mechanisms.”
Dr Konidaris also notes when he sees the applicant from that consultation in July 2020 that the applicant “has been using an orthotic to help off-load the fifth metatarsal.”
The confident opinion from Dr Randhawa that the altered gait in the months following the left foot injury is a known mechanism of injury to the labrum of the hip is at least partly based on his accepting that history from the applicant. However, Dr Randhawa also observes the applicant with an antalgic gait at the first consultation and records that the applicant has hitched his left hip and left leg up when mobilising, which puts increased force through the left hip.
I accept from a review of the medical records which I have referred to and the applicant’s own statements that the weight of evidence supports a finding that following the injury in July 2019 the applicant did have an altered gait and was putting additional pressure through his left leg to compensate for the injury to his left foot and lower leg.
I do not consider the evidence from the four employees from the respondent displaces that finding.
Firstly, there is no evidence from any of them that they worked with or near the applicant over an extended period. Indeed, Mr Lewis states that he worked only worked with the applicant for six to ten shifts before the Co-vid 19 stand down and only saw the applicant three or four times thereafter. Mr Ali states that he only saw the applicant sporadically upon his return to full duties. There is no evidence from an employee who worked over an extended period of time with the applicant after his injury who could provide more reliable evidence as to whether the applicant was limping.
Secondly, that the four employees never saw the applicant limping does not mean the applicant was not limping when he was at work. Nor do any of them provide any details of an expertise that they might have to identify if someone is limping.
Thirdly, that the applicant did not complain of pain or difficulties to any of his supervisors does not mean that he was not experiencing pain or difficulties. His own evidence is that he was not complaining and did not report his limping to anyone, but that his foot was still recovering. Although the applicant does not state why he did not complain or report ongoing problems that he was having, it is logical and reasonable to accept that he was anxious to maintain his employment. This concern would have only become more acute with the stand downs which occurred with the coronavirus pandemic.
The issue remains as to whether the altered gait and additional pressure through the left leg has caused the applicant to develop a consequential condition in the left hip, left knee and/or lower back.
I accept the opinion of Dr Randhawa that the applicant has sustained a labral tear and contusion of the left hip due to altered gait and forces through the left hip. Although Mr Doak contends that Dr Randhawa has not provided a reasoned analysis for that opinion, I consider that Dr Randhawa’s own findings of the applicant having an altered gait and his assumption that the applicant did have difficulties mobilising his left leg for many months following his injury (which is supported by contemporaneous records) allows me to be satisfied with the opinion which Dr Randhawa has provided.
Furthermore, Dr Randhawa is in a very good position as the applicant’s treating specialist, with the responsibility for the treatment of the applicant’s hip condition, to provide that opinion and there is no medical evidence to the contrary, and there has been no medical opinion provided by the respondent to contest the opinion from Dr Randhawa.
There will be a finding made that the applicant has a consequential condition affecting his left hip as a result of the injury on 1 July 2019.
Dr Randhawa does not provide an opinion as to whether the applicant has developed a consequential condition in the left knee or lower back.
Dr Konidaris writes in July 2020 that the applicant does not complain of lower back pain but does complain of iliolumbar pain. He opines that there may be an indirect link between the foot injury and sacro-iliac joint incompetence which he feels is due to chronic limping and compensation mechanisms.
That opinion of Dr Konidaris does not of itself satisfy the test that on the balance of probabilities the applicant has sustained a consequential condition affecting his lower back. However, DP Roche in State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi) at [72] said:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
I have accepted the opinion of Dr Randhawa that the applicant’s altered gait and abnormal use of the left leg has led to restrictions and symptoms in the left hip. The lower back, including the sacro-iliac joint is adjacent to the left hip. Dr Al-Essawy writes in a report dated 18 February 2021 that the pain complained of by the applicant included pain in the back in the left side.
The test for finding a consequential condition which is set out in Moon is that there be restrictions and symptoms in another part of the body as a result of a work injury. The ARD claims a consequential condition affecting the lower back. The dispute notices issued on behalf of the respondent dispute a consequential condition to the back. Although the terms ‘lumbar spine’ and ‘lower back’ are often interchanged, the lower back encompasses a larger area of the body than the lumbar spine.
I am satisfied from an evaluation of the evidence, particularly when the findings and opinions of Dr Konidaris and Dr Randhawa are read together, that the applicant meets the test for establishing that the restrictions and symptoms in the left side of his lower back are as a consequence of the injury of 1 July 2019. The test in Moon does not require me to be anymore definitive than that for the purposes of this dispute, although more precision may be required at some later date if the applicant is to bring a claim for permanent impairment.
I am satisfied from my review of the evidence that the applicant has a consequential condition affecting his lower back as a result of the injury on 1 July 2019.
Mr Doak submits that the claim for any injury or condition affecting the lumbar spine as a result of the work injury must fail because the doctors relied upon by the applicant have not been made aware of a complaint made of lower back pain and left groin pain prior to
the work injury, and the denial by the applicant of prior injuries in his statement dated 14 September 2020 effects the applicant’s credibility.
I do not agree with those submissions. The medical opinion which I have accepted from the treating specialists, Dr Konidaris and Dr Randhawa, relate to restrictions and symptoms the applicant has experienced on the left side of his lower back going across to his left hip.
That is different from the limited information which is available from the entry made by Dr Almansur on 5 November 2018 of chronic lower back pain at the L3/4 level and referred pain to the left groin.Furthermore, there is a lack of any further reference to lower back pain in the notes of Dr Almansur after 5 November 2018 and there is no evidence regarding difficulties the applicant may have had with lower back pain in a job which did require regular physical exertion.
Neither Dr Randhawa or Dr Konidaris provide an opinion as to whether the applicant has developed a consequential condition affecting his left knee as a result of the work injury. Dr Konidaris records in September 2020 that the applicant previously complained of left knee pain and that the applicant felt that this pain relates back the injury in July 2019. However, this is merely self-reporting by the applicant and Dr Konidaris does not provide his own opinion on this issue. Dr Konidaris provides no opinion as to whether a medial meniscal tear in the left knee found on a MRI scan is related in any way to the applicant’s work injury.
Dr Guirgis does not assist on this issue. Dr Guirgis provides no explanation as to how the left knee was “aggravated as a consequence of the main injury to the left leg due to altered gait.” Dr Guirgis provides that opinion after being given the report of Dr Randhawa dated 14 October 2020, but that report is limited to the left hip.
I have already referred to the ambiguity in the use by Dr Guirgis of the term “post-traumatic symptoms” as to whether that applies to the subject incident or consequences flowing from the subject incident. Dr Guirgis refers to the MRI evidence of a tear in the left knee but makes no attempt to relate that to either the subject incident or a consequential condition.
Finally, the opinion from Dr Guirgis that the delayed diagnosis of the left knee, left hip and left sacroiliac joint derangement occurred after the applicant began to “walk without the protection of the limp” is contrary to the opinions formed by Dr Konidaris and Dr Randhawa, and his subsequent opinion once he received the opinion of Dr Randhawa.
I am not satisfied that the applicant has developed a consequential condition affecting his left knee as a result of the injury on 1 July 2019 and there will be an award for the respondent on this particular claim.
The claim for weekly payments of compensation
The applicant’s claim for weekly payments of compensation for the period which I have to determine in this dispute comes within the second entitlement period and is based on section 37 of the 1987 Act. Section 37 of the 1987 Act provides:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% 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.
(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.”
Clause 8 of Schedule 3 of the 1987 Act sets out the meaning of “current weekly earnings” to be:
“‘Current weekly earnings’, of an injured worker in relation to a week, means whichever of the following is the greater amount--
(a) the worker's actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
There are Certificates of Capacity from Dr Al-Essawy which certify the applicant having no work capacity from 30 July 2020 to 1 September 2020 due to lower back pain. Although the Certificates do not refer to left hip pain or symptoms, the applicant had attended Dr Konidaris on 27 July 2020 with left buttock and groin pain, and with pain radiating down the left thigh. Some six weeks later Dr Konidaris provided a referral to Dr Randhawa for treatment of the applicant’s left hip.
I accept from a review of the evidence that the applicant had been experiencing an increase of pain in his lower back and left hip and that it was reasonable for his general practitioner to certify that the applicant had no current work capacity for a month so that there might be an easing of the applicant’s symptoms.
The applicant will therefore be entitled to an award of $1,300.16 per week (being 80% of PIAWE) from 30 July 2020 to 31 August 2020 pursuant to section 37(1) of the 1987 Act.
Although the applicant was receiving payments under the Commonwealth Jobkeeper scheme and clause 10 (3) of Schedule 3 of the 1987 Act requires a jobkeeper scheme payment to be taken to be part of a worker’s actual gross earnings for the purposes of the definition of ‘current weekly earnings’, section 37(1) makes no reference to ‘current weekly earnings’. Therefore, no adjustment needs to be made to the award of weekly payments for this period.
The applicant commenced his own Uber driving business on 1 September 2020 and has continued to work in that business since then. The calculation of the applicant’s actual gross earnings as an Uber driver was the source of particular contention between the parties in this dispute.
‘Actual gross earnings’ are not defined in the 1987 Act, although ‘earnings’ are stated in clause 6 of Schedule 3 of the 1987 Act to mean: “the amount that is the income of the worker received by the worker for work performed in any employment during the week.”
‘Current weekly earnings’ must be the greater amount of a worker’s actual gross weekly earnings or the amount a worker is able to earn in suitable employment.
Mr Boulton submits that there is a distinction between takings and earnings. He submits that the applicant’s current weekly earnings while working as an Uber driver should not be based upon the ‘Service Revenue’ set out in his Profit and Loss Statements, but should be based upon the net income set out in those statements. Mr Boulton submits that these statements have been provided to and accepted by the Australian Taxation Office and should be accepted at face value.
I did ask counsel for both parties in the course of the hearing to refer to any authorities which might assist me in the application of the term ‘current weekly earnings’ as it applies to this dispute. Mr Boulton referred to decisions which involved the application of former sections of the workers compensation legislation in claims for partial incapacity, some of which I will refer to. Mr Doak submits that those decisions do not assist with the term ‘current weekly earnings’ as it now applies in the 1987 Act.
Mr Boulton referred to different approaches that can be taken to the calculation of post-injury earnings for a worker who becomes self-employed from what was said by Glass JA in Cage Developments Pty Ltd v Schubert [1981] 2 NSWLR 227 (Cage Developments No 1) at [230]:
“The first method is to determine the nett remuneration being received for his labour by examining the business accounts and making all proper allowances for overhead expenses, costs of materials and other labour, maintenance and depreciation of plant, return on capital invested and the like (Gibbs J, at p 652; Windeyer J, at p 643).
The second method is to calculate without reference to the business accounts the worth to the business of his labour. In assessing the worth of an unimpaired earning capacity, as with a deemed worker before injury, industry rates will provide a measure. But if the work capacity is impaired another choice in method of proof is available. A direct determination may be made of the cost to the business of employing someone to do the reduced work of which the applicant is capable. Alternatively, it may be determined by deducting from the cost of employing someone whose work capacity is unimpaired the cost of supplementing the reduced efforts of the applicant so as to produce for the business the services of one fully capable worker (Barwick CJ, at pp 631-632).”
The references to Gibbs J, Windeyer J and Barwick CJ are from the decision of J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625 (Nelson).
Mr Boulton submits that the second method provided by Glass JA reaches a similar result to what the applicant contends have been his actual earnings since doing Uber driving. He submits that if $25 to $28 per hour is allowed for the driving work being done by the applicant, and it is accepted that the applicant can do 15 to 18 hours per week, then that fits the range of earnings declared by the applicant in his statement and in his wages schedule.
Mr Doak submits that the net income set out in the applicant’s Profit and Loss Statements cannot be relied upon to determine the applicant’s actual gross weekly earnings because the expenses in those statements have not been properly identified by reference to source material or documents. Furthermore, the meaning of ‘current weekly earnings’ refers to ‘gross earnings’ and not to ‘gross income.’
Mr Doak submits that the applicant’s gross earnings are the amounts the applicant receives for doing driving work in a particular week, and the definition in the 1987 Act does not refer to gross earnings after deduction for expenses.
Mr Doak refers to a schedule prepared by his instructing solicitors in the Application to Admit Late Documents filed by the respondent of deposits made into the applicant’s bank accounts from his Uber driving and submits that the highest figure in that schedule of $2,343.46 for one week can be taken as what the applicant is able to earn in suitable employment.
Mr Doak submits an alternative approach is to use the average of the deposits made between 8 September 2020 and 22 December 2020, which is calculated to be $1,675.52 per week, and which is still more than 95% of PIAWE. He submits that the calculation of average earnings should not extend beyond 22 December 2020 because there was a reduction in earnings in late December and early January that is not explained by the applicant.
The determination of a weekly payment for partial incapacity which is provided for by section 37 of the 1987 Act is different from what was previously provided for in section 11(1) of the Workers Compensation Act 1926 (the 1926 Act) or section 40 of the 1987 Act (preserved). Those two latter sections required a determination of what a worker is earning or what a worker is able to earn in suitable employment. That allowed for an element of discretion in the determination of that part of section 11(1) of the 1926 Act or section 40 of the 1987 Act (preserved) which was highlighted by the High Court in Cage Developments Pty Ltd v Schubert [1983] HCA 37; (1983) 151 CLR 584 (Cage Developments No 2) when Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ said at [587]:
“... there is no single way in which the actual or potential earnings of such a former worker must be determined. The circumstances of the particular case will indicate what way or ways are open and what evidence is relevant for that purpose and it is undesirable to confine the Commission within the strict limits of artificial rules laid down in advance by an appellate court.”
However, that discretion seems no longer available in the application of section 37 of the 1987 Act. The definition of ‘gross weekly earnings’, which is integral to the application of section 37, mandates a determination of both the worker’s actual gross earnings for each week and what the worker is able to earn in suitable employment, so as to ascertain which is the greater amount.
It has always been necessary that a worker must provide sufficient evidence for the Commission to be confident in making a finding of the worker’s actual earnings in a situation where that worker is self-employed. Gibbs J in Nelson said at [652]:
“…It is obvious that the Commission cannot have general knowledge as to the net amount which an individual contractor would probably have earned for his labour had it not been for his injury, or of the net amount he has actually earned since his injury, since so much depends upon the manner in which he conducts his business, his efficiency, the extent to which he employs workmen and uses plant, and the amount of overhead expenses he has to meet. Such matters must depend on the particular evidence in an individual case, and not on general knowledge.”
Menzies J in Nelson (who with Gibbs J and Owen J were in the three to two majority) said in regard to what was then section 11(1) of the 1926 Act at [641]:
“…the true position is that the onus was upon the worker to provide material upon which the court could make an award according to the requirements of s.11. The worker having provided no material sufficient for that purpose, the award made was not in conformity with s.11.”
In this dispute the applicant has not provided sufficient material for me to be confident in accepting his assertion of what his actual earnings have been while working as an Uber driver. I would accept that ‘Fuel’ and ‘Toll’ are actual expenses that have been incurred by the applicant and are ‘proper allowances’ for materials to conduct his business (as per Glass JA in Cage Developments No 1).
However, there is insufficient material and no detailed explanation provided by the applicant of deductions which the applicant has made for ‘Business General Expenses’ and ‘Vehicle Expenses’ in his Profit and Loss Statements.
The applicant’s bank statements which are in evidence provide shorthand references to withdrawals for business and vehicle expenses, but the applicant has provided no further information as to what those expenses are for. Mr Boulton refers to specific withdrawals in August and September 2020 which would seem to be expenses for the applicant’s business, such as registration fees, car tyres and dash cam, but again there is no evidence from the applicant which confirms that these are related to his business or whether they are proper allowances for material to conduct his business.
In Begovic v Tamworth Building Supplies Pty Ltd [2010] NSWWCCCPD 61 (Begovic), DP Roche specifically rejected the applicant’s reliance upon material provided to the Australian Taxation Office as being the actual earnings of a worker who became self-employed following an injury, when he said at [113]:
“Mr Long responded that the Commissioner for Taxation accepted the figures in the tax returns and the Commission should therefore accept them. I do not find that submission persuasive. The worker carries the onus of establishing his current earnings. In circumstances where he has complete control over his financial records, it was for him to produce proper evidence of his work and earnings for the period of the claim (from May 2006 to date). Acting Deputy President Candy not only made that clear in the first appeal, but set out in detail (at [67]) the nature of the evidence required. In purported compliance with that advice, Mr Begovic tendered a further statement at the second arbitration making general statements about the operation of the studio, the cost of hiring it, and his fee as the sound engineer. He has tendered no records, such as invoices or accounts or diaries, to support his assertions.”
What was said by DP Roche in Begovic seem particularly appropriate to this dispute. The applicant carries the onus of establishing his earnings, has control over his financial records, but has not tendered sufficient records to support his calculations of his actual gross earnings as an Uber driver. DP Roche was not prepared to accept what was provided to the Commissioner for Taxation by a self-employed worker, and the same position should be taken in this dispute.
I agree with the submission made by Mr Boulton that the applicant should be commended for obtaining work. However, the applicant has made a choice not to provide sufficient material to allow a determination of his actual gross weekly earnings.
The problem which I have identified might well have been ameliorated by a report being provided by Moustafa Saadeddine, who has prepared the Profit and Loss Statements, or the applicant providing a schedule and explanation of expenses, preferably with invoices or receipts for those expenses. Without that information the applicant is left in the situation identified in Begovic of there being insufficient material for the Commission to determine the applicant’s actual gross earnings as an Uber driver.
Mr Boulton has referred to what was said by Basten JA in Akora Holding Pty Ltd v Ljubicic [2008] NSWCA 339 (Ljubicic) at [13] that:
“An error in point of law might arise if the arbitrator had failed to appreciate the need to distinguish between the earnings of the business and those of the worker.”
I accept that there can be a distinction between the earnings of a business and the earnings of the worker who operates that business. However, what the applicant has failed to do is to provide sufficient evidence to allow this distinction to be made. That is particularly important given that section 37 of 1987 Act mandates a determination of the applicant’s actual gross earnings and this must be properly addressed by the applicant.
I would accept that fuel and tolls are actual out of pocket expenses which reduces the income received by the applicant which forms part of his earnings. However, I do not consider from what has been provided by the applicant that this extends to ‘Business General Expenses’ and ‘Vehicle Expenses’.
Mr Doak submits that the amount of $2,343.46 which was received by the applicant for the week ending 15 December 2020 can be taken as what the applicant is able to earn in suitable employment. I do not agree with that. The approach of the Commission has been to have regard to average earnings over a period of time. The earnings of a worker can fluctuate for a variety of reasons, some of which the applicant has no control over.
The earnings of the applicant based upon the Profit and Loss Statements and after deduction for fuel and tolls for the period from 1 September 2020 to 31 March 2021 is $35,370. The period from 1 September 2020 to 31 March 2021 is 30.5 weeks. The applicant’s average weekly earnings amount to $1,159.67.
The applicant states that he received $750 per week from Jobkeeper until 13 September 2020, and then $600 per week from Jobkeeper from 14 September 2020 to 30 October 2020. Those payments are required by clause 10(3) of Schedule 3 of the 1987 Act to be included as part of a worker’s actual gross earnings for the definition of ‘current weekly earnings’.
The following calculations are therefore made for the applicant’s claim for weekly payments of compensation for partial incapacity for work:
Period 95% of PIAWE Applicant’s earnings Loss
1/9/2020 – 13/9/2020 $1,543.94 $1,909.67 Nil
14/9/2020 – 30/9/2020 $1,543.94 $1,759.67 Nil
1/10/2020 – 31/3/2020 $1,543.94 $1,159.94 $384.27
There will be an award made in favour of the applicant for a weekly payment of $384.27 per week from 1 October 2020 to date and continuing pursuant to section 37(2) of the 1987 Act. No details of earnings have been provided by the applicant from 1 April 2021, presumably because he has yet to complete his financial documents for that quarter. I have based a continuing award on the applicant’s average weekly earnings over a 30 week period and would regard that as being the benchmark for an ongoing award. Either party is able to seek a variation of the award for a change of circumstances in the future.
I have accepted from a review of the medical evidence that the applicant has had a partial incapacity for work since 1 September 2020.
Dr Konidaris opined in July 2020 that he would be happy for the applicant to participate in an office role where the applicant could take frequent breaks from prolonged sitting. He placed no restrictions on the amount of hours the applicant should work each week.
Dr Randhawa was more cautious in his opinion, being that the applicant is only able to partake in sitting down tasks and even then the applicant would need to have frequent breaks to stand up and stretch his hip out. However, Dr Randhawa also did not place any restrictions on the amount of hours the applicant should work each week.
The Uber driving which the applicant has undertaken since 1 September 2020 would fit the restrictions recommended by both those treating specialists.
The restrictions recommended by Dr Kondaris and Dr Randhawa would allow for the applicant to undertake menial clerical or administrative work. The applicant had done that work when he was on light duties between late August 2019 and December 2019 and does not complain of any difficulties he had doing that work.
However, the award rate for a Level 1 employee under the Clerks – Private Sector Award 2020 is currently $801.40 per week, which is less than the applicant’s actual gross earnings as an Uber driver.
The award of weekly payments of compensation in favour of the applicant will be as follows:
(a) $1,300.16 per week from 30 July 2020 to 31 August 2020 pursuant to
section 37(1) of the 1987 Act, and(b) $384.27 per week from 1 October 2020 to date and continuing pursuant to section 37 (2) of the 1987 Act.
Whether the surgery proposed by Dr Randhawa is reasonably necessary as a result of the injury sustained on 1 July 2019
I have accepted that the applicant developed a consequential condition affecting his left hip as a result of the injury he sustained on 1 July 2019. I have accepted the opinion of Dr Randhawa that this condition includes a labral tear and bony contusion of the left hip.
Dr Randhawa has recommended a repair of the left labrum and a bony decompression of the femoral head neck junction by arthroscopy. Dr Randhawa considers there is a direct link between the pathology in the left hip and the need for surgery. There is no medical opinion to the contrary.
Dr Randhawa states that the proposed surgery aims to improve the applicant’s hip, groin and thigh pain, and there is also a chance that there might be a flow on effect in improving the applicant’s lower back pain. This opinion meets part of the criteria set by Burke J in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) that at [48A-C] :
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
There is no medical opinion which questions whether the proposed surgery is reasonably necessary. The evidence which I have accepted supports a finding that the proposed surgery is reasonably necessary as a result of the injury sustained by the applicant.
There will be order that the respondent is to pay the costs of the repair of the left labrum and a bony decompression of the femoral head neck junction by arthroscopy proposed by Dr Randhawa, and the expenses reasonably incidental to that surgery.
There will also be an order that the respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his left hip and lower back as a result of the injury sustained on 1 July 2019.
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