Ali v Woolworths Group Limited
[2021] NSWPIC 150
•23 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ali v Woolworths Group Limited [2021] NSWPIC 150 |
| APPLICANT: | Taimoor Ali |
| RESPONDENT: | Woolworths Group Limited |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 23 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The respondent had issued a work capacity decision finding that the applicant had current capacity for employment greater than his certification from his treating doctors, based on their medico-legal assessments; Held- the evidence from the treating doctors was preferred and an Interim Payment Direction was issued ordering the respondent to pay the applicant weekly compensation in the closed period claimed pursuant to sections 36 and 37 of the 1987 Act. |
| DIRECTIONS MADE: | 1. That the respondent pay weekly compensation to the applicant as follows: (a) From 6 April 2020 to 12 April 2020 $1,022.57; (b) From 13 April 2020 to 19 April 2020 $980.06; (c) From 20 April 2020 to 3 May 2020 $1,280.89 per week; (d) From 4 May 2020 to 7 June 2020 $1,078.65 per week; (e) From 8 June 2020 to 5 July 2020 $677.54 per week; (f) From 6 July 2020 to 12 July 2020 $478.68; (g) From 13 July 2020 to 19 July 2020 $197.90; (h) From 20 July 2020 to 26 July 2020 nil; (i) From 27 July 2020 to 9 August 2020 $160.01 per week; (j) From 10 August 2020 to 16 August 2020 nil; and (k) From 17 August 2020 to 23 August 2020 $35.46. |
Background
Mr Ali was employed by the respondent, Woolworths Limited, as a storeperson. On 29 January 2020 his work duties involved him picking up boxes and moving them from one pallet to another. As he picked up a box of drinks, he felt a sharp pain in his lower back causing him to drop the box.
Mr Ali alleges in these proceedings that he sustained an injury to his back in this incident and, in the alternative, the injury was sustained due to the nature and conditions of his employment from February 2018 to 29 January 2020, with a deemed date of injury of 29 January 2020.
He seeks weekly compensation. He went back to some work on 8 June 2020, so the amount of compensation he seeks varies. From 26 August 2020 Mr Ali has worked full time without restriction.
On 31 March 2020 the respondent’s workers compensation insurer, Employers Mutual Limited (the insurer), issued a work capacity decision[1]. The decision was that Mr Ali had been assessed as having the capacity to undertake pre-injury hours at the respondent’s Yennora Distribution Centre and earn his pre-injury average weekly earnings (PIAWE) of $1,348.31. The insurer advised on the basis of this decision
Mr Ali’s entitlement to weekly compensation would be reduced to $0 effective on 7 April 2020. The one-week notice was stated to be in accordance with section 80(2) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), because Mr Ali had received less than 12 weeks of compensation at that time.[1] Application p 201.
The evidence relied upon by the insurer, as set out in their work capacity decision, is as follows:
· Dr Raymond Wallace in report dated 11 March 2020 wherein he found that “Mr Ali is currently fit to return to work at part-time light duties up to 20 hours per week with due consideration given to restrictions on his activities detailed above. He will be fit for a trial of return to work at his pre-injury duties within one month of this consultation.”
· Dr Cameron in report dated 26 March 2020 opined that Mr Ali “should be fit for full time suitable duties. Given the coronavirus situation, I understand Woolworths are extremely busy and have plenty of suitable duties.”
On 5 August 2020 Mr Ali’s solicitors sought a review of the insurer’s work capacity decision and forwarded to them Mr Ali’s statement dated 10 April 2020, report of
Dr Mohammed Assem dated 3 July 2020 and report from ReCare Services dated 11 June 2020[2]. It was submitted in the covering letter that Mr Ali’s capacity for performing suitable duties does not exceed three to four hours per day for three days per week until 4 July 2020, when Mr Ali returned to work performing 24 hours per week until his gradual upgrade to normal hours.
[2] Application p 208.
Therefore, the claim was made from 7 April 2020 to 3 July 2020 at the rate of 80% of the PIAWE of $1,348.31 and from 4 July 2020 at 95% of the PIAWE less his actual earnings.
On 2 September 2020 the insurer issued their internal review decision pursuant to section 287A of the 1998 Act[3]. This notice advised there would be no change to the insurer’s decision. In the alternative, the insurer argued that Dr Assem stated in around June 2020 Mr Ali commenced a graded return to work plan with suitable duties for four hours per day, three days per week and that Dr Assem expressed the view that Mr Ali probably would have had this level of capacity from 3 March 2020. The insurer also argued that the medical evidence suggested there was no significant pathology on radiological imaging, apart from an annular fissure. Accordingly, the insurer did not accept the certification that Mr Ali was unfit for employment from March 2020.
[3] Application p 209.
Issues in dispute
The issue in dispute relates to Mr Ali’s capacity for employment in the period 7 April 2020 to 25 August 2020.
The legislation
Section 297(1) of the 1998 Act provides:
“When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction.”
The evidence
Mr Ali’s statements
Mr Ali has provided two statements dated 10 April 2020 and 30 November 2020. He sets out the circumstances surrounding his injury, his subsequent symptoms and details of his upgrading with his return to work. He mentions that his pre-injury job involves standing most of the day and repeatedly bending and lifting heavy cartons. He describes the light work he was able to undertake on his return to some work for the respondent, the details of which are referred to later in these reasons.
Before considering the parties submissions I have summarised below the medical evidence in roughly chronological order to ascertain the changes over time in Mr Ali’s injury related symptoms.
Workers Doctors medical practice
On 5 February 2020 physiotherapist Ka Wai (Gary) Ng recorded details of the injury on 29 January 2020 and stated the pain location was around T7 and the thoracic/lumbar junction and lower back pain on the mid left and right. It was noted Mr Ali’s sleep was affected by cramping and his pain was aggravated by bending[4]. It is noted his pre-injury hours were 36 over four days. His duties involved lifting up to 30kg from ground to overhead and driving a lifting machine. It was noted that Mr Ali had been doing light duties but had stopped work that day.
[4] Application p 55.
On the same day Mr Ali saw Dr Lim who noted upper back pain, lower back pain and stiffness with trouble sleeping. He stated that Mr Ali was totally unable to work. He recommended physiotherapy and an MRI scan be undertaken. A report was written to the insurer noting that Mr Ali was totally unable to work[5].
[5] Application p 128.
On 10 February 2020 physiotherapist Cheuk Yin (Davy) Lam recorded that Mr Ali’s pain was aggravated when he had been sitting for 20 minutes, bending forward and on walking. He found mainly muscle stiffness in the bilateral lower back and a burning/sharp pain in the central spine.
On 12 February 2020 another physiotherapist saw Mr Ali and noted the low back pain goes across his back and he was feeling stiff in his low back. His pain was aggravated with standing greater than 5 to 10 minutes. On the same day Mr Ali saw Dr Dickson who has recorded the MRI scan findings of minimal lumbar spondylosis, no facet arthroses, no significant disc protrusion or nerve compression. An annular fissure was noted in the anterior L3/4 disc.
Dr Dickson sent a report on 12 February 2020 to the insurer. In that he stated that after Mr Ali was injured, he kept doing restricted duties, but his condition deteriorated, and he stopped working due to severe pain[6]. Dr Dickson advised the insurer that Mr Ali was totally unable to work and recommended a spinal review, and wrote a referral to Dr Khong, neurosurgeon[7].
[6] Application p 105.
[7] Application p 111.
On 26 February 2020 Dr Morgan Mo examined Mr Ali and records that he was unfit to work. It is noted the pain was in the thoracic and lower back. The doctor records the findings of Dr Khong. On the same day Mr Ali saw the physiotherapist who noted the pain was in the central spine, bilateral L5/S1 and was aggravated by bending and walking for 5 to 10 minutes. A copy of an email to the insurer is included in the clinical notes for 26 February 2020 wherein it was advised that Mr Ali would not be able to upgrade to light duties for two to three months and his reduced sitting and standing tolerance was preventing a return to work. It was noted that the nature of Mr Ali’s job with repetitive lifting can potentially irritate his injured disc easily and that the return to work would have to be cautious and progressive[8].
[8] Application p 64.
On 11 March 2020 Mr Ali saw Dr Lim who changed the dosage of Gabapentin to one to two capsules per night.
On 25 March 2020 Mr Ali consulted Dr Dickson by phone and it was noted that walking aggravated his pain significantly. He was still doing the physiotherapy exercises and was distressed about his chronic pain. On the same day he saw the physiotherapist who noted some overall improvement but there was still lower back pain and bilateral left and right leg numbness. These symptoms were aggravated by sitting and walking for prolonged times.
On 1 April 2020 Mr Ali attended physiotherapy and it is reported that his lower back is still hurting, and he has intermittent numbness bilaterally in his legs, aggravated by prolonged sitting[9].
[9] Application p 67.
On 3 April 2020 Mr Ali saw Dr Calvache-Rubio who records that Mr Ali has ongoing pain, although he was tolerating it better. It is noted that he is still unfit at this stage.
On 8 April 2020 Mr Ali had physiotherapy treatment and the entry still records low back pain and leg pain with numbness and weakness aggravated by prolonged sitting and walking. These were to be restricted to 15 minutes.
On 22 April 2020 Dr Calvache- Rubio recorded that Mr Ali’s pain was improving and he needed ongoing physiotherapy. It is noted that Mr Ali was to consider gradual return to work[10]. On the same day Mr Ali had physiotherapy treatment where it was recorded that he was improving, and the right leg pain had stopped but he continued to feel numbness and weakness. He was still being aggravated by prolonged sitting and walking. On 29 April 2020 the physiotherapist noted overall improvement however, the entry still records back pain and aggravation with walking and sitting and intermittent pins and needles or numbness. The sitting, standing and walking tolerance was still 15 minutes.
[10] Application p 69.
On 6 May 2020 Dr Calvache-Rubio had a video call with Mr Ali in which he noted that Mr Ali had a flare up of back pain with referred pain to his legs. The doctor recommended he persist with conservative treatment.
On 20 May 2020 Mr Ali had physiotherapy treatment. It was noted he had low back pain in the mid and right side most of the time over the prior two weeks and he felt weakness and numbness in his legs. He was lying down most of the day[11]. On the same day he had a video call with Dr Calvache-Rubio who in addition to leg pain, noted psychological distress with low mood, low energy and he recorded that Mr Ali was not coping well with pain. He recommended psychological support.
[11] Application p 72.
Dr Wallace
Dr Wallace is an orthopaedic surgeon who supplied a report for the insurer dated 11 March 2020[12]. Dr Wallace has a history of the injury on 29 January 2020 to Mr Ali’s lumbar spine. He noted that Mr Ali completed his shift and then rested when he had the next two days rostered off work. He returned to work performing full time light duties and saw the work physiotherapist during that week. He records that Mr Ali noted increasing lumbar spine pain and stiffness. Dr Wallace sets out the treatment undertaken by Mr Ali, which included consultations with Dr Lim, physiotherapy, consultations with Dr Khong, neurosurgeon, taking analgesics and undergoing an MRI scan.
[12] Reply p 1.
Dr Wallace says that Mr Ali has noted an overall reduction in his lumbar spine pain since the injury and was at the time of his examination complaining of a constant aching pain at the lumbar spine from L2 to L5, radiating to the sacrum but no radiation to the lower limbs. He had some intermittent paraesthesia globally about his right thigh.
Dr Wallace records that Mr Ali said his pain was worse on walking and sitting after 15 minutes, as well as early in the morning and night. His sleep is disturbed at night due to pain and he cannot drive. His wife needed to help him dress as he found putting on his pants difficult.
On examination Dr Wallace found that Mr Ali had an exaggerated response, and he complained of hypersensitivity on light touch palpation of his lumbar spine. His gait was slow, but he did not limp.
Dr Wallace diagnosed that Mr Ali suffered from a minor musculoligamentous strain to the lumbar spine and aggravation of pre-existing degenerative lumbar spondylosis at L4/5 level. Dr Wallace found the work incident did cause lumbar injury and the employment with the respondent was a substantial contributing factor to the lumbar spine condition at the time of his examination.
Dr Wallace found that Mr Ali was unfit for his full pre-injury duties as a pick/packer and he would not be fit for activities requiring repetitive bending or twisting movements of the lumbar spine or repetitive lifting above 5kg in weight. Dr Wallace found Mr Ali at that time was fit to return to work on part -time light duties up to 20 hours per week, adding “with due consideration given to restrictions on his activities detailed above”. The doctor estimated that Mr Ali could thereafter increase his hours of light duties to full time hours over the next month, before a trial of return to work at his pre-injury duties. Dr Wallace recommended twice weekly physiotherapy treatment and a home- based exercise program and use of analgesics. He also would need a review by his general practitioner on a fortnightly basis over the following month.
Dr Cameron
Dr Greg Cameron provided the insurer with an Injury Management report dated 26 March 2020[13]. Dr Cameron did not conduct an examination of Mr Ali, so all of his information comes from documentation. Dr Cameron recites Dr Wallace’s history, opinion about treatment and his opinion about fitness for work.
[13] Reply p 8.
Dr Cameron thought Dr Wallace’s assessment was too generous. Dr Cameron stated that he could not see why Mr Ali had not been on suitable duties for the entire duration of the claim. However, he adds to reduce the risk of recurrence he recommended that Mr Ali undertake a formal exercise program for six to eight weeks once he is on pre-injury duties. In coming to this view, Dr Cameron seemed to place weight on his view that the back injury was relatively minor with an essentially normal MRI scan.
Dr Cameron stated that Mr Ali at the time should be working seven hours for four days per week and then in the next week or two upgrade to nine hours per day four days per week.
Dr Khong
Dr Peter Khong is a neurosurgeon who treated Mr Ali. In reports dated 26 February 2020[14] and 25 March 2020[15] he advised Dr Lim about the back injury on 29 January 2020. Mr Ali advised the doctor that bending over was painful after the injury. The pain was midline mid lumbar spine radiating to the lower lumbar spine. Dr Khong noted thereafter the pain had radiated to midline sacrum with pins and needles in both buttocks, worse on sitting or standing for long periods. Activity brought on pain.
Dr Khong recorded his examination findings for 26 February 2020, that he found Mr Ali had normal gait and able to walk on his heels and toes. There was some reduction in sensation in the anterior thighs bilaterally, but otherwise the examination was normal. Dr Khong says he explained to Mr Ali his pain is likely to be musculoligamentous and postural and he recommended exercise, physiotherapy and analgesia. Dr Khong noted the annular fissure is the likely cause of the pain[16].
[14] Application p 38.
[15] Application p 36.
[16] Application p 135.
Dr Khong reported to Dr Sebastian Calvache-Rubio on 29 May 2020[17]. He advised that Mr Ali continued to complain of lower back pain, though it had improved a little. The doctor noted that Mr Ali still has a sensation of bilateral leg numbness and weakness. Dr Khong continued to recommend non-operative treatment, noting the MRI scan did not demonstrate any neural compression. Dr Khong does not comment on Mr Ali’s work capacity in this report.
[17] Application p 34 and Reply p 14.
Functional Assessment Report
A Functional Assessment Report was issued by Jeffrey Chakfui Szeto, physiotherapist from ReCare Services dated 11 June 2020[18]. It was advised that Mr Ali’s performance indicated that he was fit for sedentary work, suitable part-time work for four hours per day, three days per week until his pain tolerances improved. The report contains a definition of what was meant by sedentary work. This included exerting up to 4.5kgs of force occasionally and/or negligible force frequently to lift, carry, push, pull or otherwise move objects. The work involves sitting most of the time with walking or standing for brief periods of time.
[18] Application p 14.
The author of the report considered that Mr Ali would have difficulty undertaking his full pre-injury duties at that time. Quite specific physical assessments were made such as right hand carry up to 3 kgs, left hand 2kgs, lifting with waist to waist height up to 4kgs, standing for less than one hour, avoid pushing/pulling, bending, squatting and kneeling and he would need to rotate his posture as required.
Ongoing physiotherapy and psychological consultations were recommended to address his lower back symptoms and to assist return to work and periodic review with his general practitioner was recommended.
Mr Ali had advised the author that he had returned to work on 8 June 2020, but he was concerned about falls at work as he had increased numbness down his right leg.
It was noted that the author agreed with Dr Lim’s certificate of capacity of four hours per day, three days per week until Mr Ali’s pain tolerances improve[19].
[19] Application p 30.
Dr Assem
Dr Mohammed Assem is a rehabilitation specialist who was qualified by Mr Ali’s solicitors and provided them with a report dated 3 July 2020[20]. He has a history that
Mr Ali was originally from Pakistan, but lived in the United Kingdom for four years where he completed a Masters Degree in Business Administration and Accounting. He came to Australia in 2016 and worked in a takeaway shop and café, before commencing with the respondent in 2018 as a storeperson. Initially this work was through an employment agency, and in 2019 he was offered a permanent job at the respondent’s Yennora Distribution Centre.
[20] Application p 7.
Dr Assem has a history about Mr Ali injuring his lumbar spine on 29 January 2020 and his subsequent treatment. He records that Mr Ali said that his symptoms have gradually improved and in around June 2020 he commenced on a graded return to work program on suitable duties working four hours per day, three days per week with a 5kg lifting restriction. He adds that the day prior to his examination Mr Ali was upgraded to work six hours per day, five days per week still with the 5kg lifting restriction. It is noted that the employer was being supportive providing him with suitable work within the restrictions and he does office-based work, repacks damaged stock and places it on the aisle. He also does light cleaning.
Dr Assem noted at the time of his assessment Mr Ali still continues to experience intermittent discomfort across his lower back precipitated by bending, but his numbness and weakness in the lower limbs has subsided and he no longer gets pain on sneezing or coughing. He was able to sit for 30 minutes without difficulty and had pain when standing and walking for long periods.
Dr Assem diagnosed a musculoligamentous strain to the lumbar spine associated with an acute annular tear at the anterior L3/4 causing chronic mechanical low back pain.
In relation to his opinion regarding Mr Ali’s capacity for employment, Dr Assem said
Mr Ali’s progress was slower than expected and noted there was some fear avoidance behaviour. The doctor noted that Mr Ali said his symptoms were improving with physiotherapy treatment and he thought that Mr Ali probably would have been capable of performing suitable duties working three to four hours per day, three days per week from 3 March 2020 to July 2020. Dr Assem noted that Mr Ali was now working six hours per day, four days per week. He expected a further incremental upgrade in his hours and restrictions. Dr Assem pointed to atrophy of his right calf. However, this is because it measured 1cm smaller than the left and there is no evidence what it was like pre-injury. He notes further in his report that there was no concordant evidence on radiological imaging of nerve root impingement. Dr Assem expected the annular tear would heal.
Dr Kumagaya
Dr Kumagaya is a psychiatrist who reported to Mr Ali’s general practitioner on 27 July 2020[21] and 27 August 2020[22]. At the time of his first examination of Mr Ali the doctor noted that Mr Ali had experienced improvement in his physical symptoms and was working nine hours a day, four days per week on light duties. Mr Ali advised the doctor that after his back injury he had an onset of depressive and anxious symptoms including low mood, concentration difficulties, sleep disturbance, diminished energy, anxiety and restlessness. Dr Kumagaya diagnosed an adjustment disorder with mixed anxiety and depressed mood.
[21] Application p 41.
[22] Application p 39.
In the second report the doctor noted that Mr Ali felt comfortable in trialling full duties. His mood was described as improved. The doctor recommended psychological therapy and a follow up appointment to monitor any exacerbation from the return to work.
Dr Lim
Dr Lim issued a report dated 25 November 2020 to Mr Ali’s solicitors[23]. The doctor referred to thoracic spine strain and lumbar injury and that Mr Ali has chronic pain with psychological distress. Dr Lim states “considering his education, training, skills and experience was limited to being a storeperson and cleaner, he was not able to return to physical work.” He said Mr Ali was unfit to work until 8 June 2020. In this report
Dr Lim does not display awareness of Mr Ali’s education and the fact that he obtained a Masters Degree in the UK. Dr Lim says he does not agree with the opinions of
Dr Cameron and Dr Wallace, as they were not treating Mr Ali at the time and have placed no weight on Mr Ali’s symptoms in the context of his work experience. He also states that the insurer has not considered the opinion of Dr Kumagaya, Mr Ali’s treating psychiatrist.
[23] Application p 32.
Certificates of capacity
Various certificates of capacity have been issued by doctors in the general practice.
On 3 April 2020 Dr Calvache-Rubio certified that Mr Ali had no current work capacity from 3 to 24 April 2020[24].
[24] Application p 140.
On 22 April 2020 the doctor maintained this level of certification until 13 May 2020 and noted pain was affecting his recovery[25].
[25] Application p 143.
On 6 May 2020 the certification of total unfitness for work was given to cover to 27 May 2020.[26] On 20 May 2020 Dr Calvache-Rubio issued a further certificate to cover to 10 June 2020[27].
[26] Application p 146.
[27] Application p 149.
On 3 June 2020 it was certified that Mr Ali had no current capacity for any work from 3 June to 7 June 2020 and from 8 June to 24 June 2020 he was certified as having capacity for some type of work for four hours per day, three days per week. The restrictions noted on the certificate included <5kg lifting capacity, <1hour standing tolerance and avoid pushing/pulling and bending/twisting/squatting[28]. It was noted there was to be a “Trial RTW” (return to work). On the next certificate dated 18 June 2020 the capacity for some employment was maintained at four hours per day, three days per week, however, the standing tolerance was reduced to <30 minutes[29].
[28] Application p 44.
[29] Application p 155.
On 1 July 2020 the certificate was changed by Dr Dickson to six hours work per day, four days per week for the period 6 to 22 July 2020. The other restrictions remained.
On 15 July 2020 the lifting restriction was increased to <8kgs and the standing tolerance to <3hours. It was noted Mr Ali was still to avoid pushing/pulling and repetitive bending/twisting and squatting. It was also added that light picking duties were Ok for three to four hours[30]. The certification by Dr Dickson was increased to nine hours, four days per week in the period 15 July to 5 August 2020.
[30] Application p 161.
On 29 July 2020 Dr Dickson maintained this level of certification to 19 August 2020[31].
[31] Application p 164.
On 5 August 2020 Dr Dickson increased the lifting restriction to <10kgs. But otherwise the certification remained the same as did the certification on 12 August 2020[32].
[32] Application p 170.
On the certificate dated 16 September 2020 Mr Ali was certified fit for pre-injury duties from 26 August 2020 with no restrictions by Dr Calvache-Rubio[33].
[33] Application p 47.
Wages Schedule
Mr Ali’s solicitor has included a detailed wages schedule based upon these certificates of capacity[34]. For the reasons given below, I have directed that the respondent pay weekly compensation pursuant to the calculations in this schedule. The respondent did not submit, that in the event I accepted Mr Ali’s submissions, that the schedule was mathematically incorrect.
[34] Application p 178.
Submissions
The submissions were made orally, and sound recorded.
The respondent
Mr Robert Passas, solicitor, made submissions on behalf of the respondent. The respondent disputes that Mr Ali was incapacitated to the extent set out in the certificates of capacity covering the period 7 April 2020 (being the date that the work capacity decision came into effect) until 26 August 2020 (when Mr Ali resumed pre-injury duties).
It was submitted that the injury itself was not overly serious. To support this submission the respondent referred to the examination by Dr Khong in his report dated 25 March 2020. The respondent submits that the doctor did not find any compelling symptoms and the MRI scan wherein there was reference to an annular fissure,
Dr Khong found it difficult to visualise and he found there was no neural compression.The respondent also relied upon Dr Wallace’s opinion and attention was drawn to his history of an overall reduction in pain. It was submitted that this finding is consistent with the clinical notes in which there are entries referring to overall improvement in
Mr Ali’s condition such as on 26 February 2020 where it is recorded he feels soreness for one day and then feels better for two days. I note that this is a reference to Mr Ali’s response to physiotherapy. On 25 March 2020 overall improvement was recorded and on 8 April 2020 pain was stated to be improving.It was submitted that these entries support Dr Wallace’s view that Mr Ali had capacity to increase his hours of work from 3 March 2020 and then gradually increase from 7 April 2020 to pre-injury duties. It was submitted that if this proposition was not accepted, then there is an argument on the basis of the clinical notes about improvement, that Mr Ali could have worked 36 hours per week at suitable duties. It was submitted that by the date the work capacity decision came into effect eight weeks had been paid in weekly compensation under section 36 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent submitted that the issue is whether Mr Ali had capacity for suitable employment and there is a need to look at definition in section 32A in the 1987 Act, which applies regardless whether jobs are available. It was noted that the work capacity decision identified a suitable job, being suitable duties as team member or storeperson. It was argued that the evidence of Dr Lim and Dr Assem do not support that Mr Ali was unable to work in suitable employment. It was submitted that the weight of evidence supports that Mr Ali had capacity in that period, relying on Drs Wallace and Cameron. It was submitted that Mr Ali could undertake real job, that is performing suitable duties. It was further submitted that Dr Cameron discusses the nature of
Mr Ali’s restrictions with employer and they confirmed that there were numerous suitable duties available with the respondent as it was very busy due to the Covid-19 situation. Therefore, the submission was made that Mr Ali could have worked the whole period performing his pre-injury hours (36 hrs) in suitable duties.In alternative, the respondent submitted that in Dr Assem’s history of injury he says
Mr Ali gradually improved, and, in his opinion, Mr Ali probably would have been able to do suitable duties for four hours, three days per week. So, the respondent submitted it must be accepted Mr Ali had capacity to work for at least 12 hours per week from 7 April 2020 to the date he upgraded his capacity in June 2020.
The applicant
Mr James McEnaney, counsel, instructed by Ms Angie Basel, solicitor made oral submissions on behalf of Mr Ali. It was argued that the respondent’s submission that Dr Cameron says there were plenty of suitable duties available cannot be given weight because there is no evidence as to what the suitable duties might be.
It was submitted that Mr Ali’s evidence is that he was totally unfit initially and that this certification was supported by his doctors and physiotherapists. Attention was drawn to Mr Ali’s statement evidence wherein he describes the nature of his incapacity that he described to his doctors. It was submitted that his first statement was made around the time of the work capacity decision and from paragraph 14 it is evident that Mr Ali was making an effort to do light duties, and he tried to return to work and then got pain bending over.
It was submitted that the MRI scan shows an annular fissure, which is not an insignificant finding, and it was argued that the respondent has not put fair gloss on medicine. It was submitted that Mr Ali in his statement has set out his symptoms and consequences of developing back pain, which are wider than just affecting his back, as he had some psychological problems.
It was submitted that Mr Ali’s second statement was given after his return to work and he states his Doctors Khong, Lim and the physiotherapist all recommended that he ease back into work duties. It was argued that this is what he did, initially working four hours per day for three days per week and then when he could stand longer and lift 8kgs, he commenced to work longer. It was argued that Mr Ali is now back to full duties and hours and manages his pain with rest. It was submitted that he is exemplar as to how system should work, that he has done everything asked of him by his doctors.
Mr Ali’s counsel asserted that the respondent’s submission about Dr Khong, not finding the injury as serious, was just because the doctor stated that the fissure was hard to see. However, he argued that this submission by the respondent overlooks the part of Dr Khong’s report where he records that Mr Ali complained of severe pain and numbness in legs. In addition, it was submitted that even though the physiotherapist recorded improvement he noted that Mr Ali’s pain was aggravated by prolonged standing of 5 to 10 minutes.
It was submitted that the respondent has picked parts out of Dr Khong’s report but fails to consider the doctor had recorded a long history of problems. In relation to the respondent’s submission relating to Dr Assem’s opinion, Mr Ali’s counsel submitted that Dr Assem was really speculating about the past and it is preferable to rely upon the contemporaneous evidence of physiotherapist and general practitioners who were treating Mr Ali at the time.
Finally, it was submitted that Dr Wallace records that Mr Ali had difficulty putting on his pants, suffered sleep disturbance, could not drive or do housework, and he no longer can run. Yet Dr Wallace opines that Mr Ali could work 20 hours per week. It was argued that this opinion is not consistent with the symptoms he has accepted. It was submitted that Dr Wallace’s opinion should not be accepted as he provides no explanation for his opinion. It was also submitted that no reliance should be placed on Dr Cameron’s opinion because he only conducted a file review and he did not note all the history that Dr Wallace took, for example, about the difficulty Mr Ali had putting his pants on. In summary, Mr Ali’s counsel says the opinions of Drs Wallace and Cameron should not be accepted and there is no evidence as to what the suitable duties were. It was argued that Mr Ali was commendable getting back to work and his wages schedule should be accepted and a direction made for the compensation as set out in that schedule.
There were no submissions in reply from the respondent.
Discussion
In this matter there is agreement as to the PIAWE figure of $1,348.31. Where the parties disagree is Mr Ali’s current work capacity in the period from 7 April 2020, when the work capacity decision took effect, until 26 August 2020, when Mr Ali recommended full time pre-injury duties.
Before the injury he worked 36 hours per week, by nine hours per day over four days per week as a storeperson.
The first step is to consider if Mr Ali in this period had “no current work capacity” or a “current work capacity”. These terms are defined in Schedule 3, clause 9 of the 1987 Act. An injured worker has “no current work capacity” if he has “a present inability arising from the injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or suitable employment.”
“Current work capacity” is defined as follows:
“if the worker has 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 any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.”
Suitable employment is defined in section 32A of the 1987 Act as follows:
“‘suitable employment’, in relation to a worker, means 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.”
The focus of the parties submissions essentially centres on which medical assessment should be preferred. I find that the evidence from Mr Ali’s treating doctors is compelling and should be preferred to that of the medico-legal specialists. Firstly, the various general practitioners who have examined and consulted with Mr Ali have done so frequently and regularly over the period in question. I find that this places them in a superior position to the medico-legal experts who have only seen Mr Ali once, or in the case of Dr Cameron not at all. This outcome does not necessarily follow in all cases. However, in Mr Ali’s case I find that the notes made by his general practitioners and physiotherapists are very detailed and considered.
Also, I note that on 26 February 2020 an email was sent by the practice to the insurer advising that Mr Ali would not be able to upgrade to light duties for two to three months and his reduced sitting and standing tolerance was preventing a return to work. It was noted that the nature of Mr Ali’s job with repetitive lifting can potentially irritate his injured disc easily and that the return to work would have to be cautious and progressive[35]. I find that this has been the approach of his treating doctors, to be cautious but, nonetheless when indicated, they have upgraded Mr Ali’s certification. My summary of the certificates of capacity demonstrate this.
[35] Application p 64.
While the respondent in its submissions referred to some entries in the clinical notes about improvement in Mr Ali’s condition, I find it is important to consider the whole of each entry so as to understand the comments about improvement in context. For instance, the respondent drew attention to the entry on 25 March 2020 and the comment of “overall improvement”. However, the physiotherapist that day also recorded that Mr Ali still had lower back pain and bilateral leg numbness. It was also noted that these symptoms were aggravated by sitting and walking for prolonged times.
Dr Wallace who examined Mr Ali around this time also took a history of such symptoms and that Mr Ali had to get his wife’s help to put on his pants. While
Dr Wallace considered Mr Ali could return to work on light duties, he emphasised that was within the restrictions he set out including no repetitive bending, twisting or repetitive lifting above 5kgs. The respondent urges me to prefer Dr Wallace’s opinion that at this time Mr Ali could work for 20 hours per week. However, I consider that the general practitioners who were seeing Mr Ali regularly were able to assess his work capacity with the benefit of this experience and they were justified in taking a cautious approach, particularly because an annular fissure had been found on MRI scanning. Dr Khong had indicated in his report that he thought the pain was coming from the annular fissure. So, I do not accept the respondent’s characterisation of Dr Khong’s opinion that the pathology was insignificant. The other factor the general practitioners took into account was the effect the injury had on Mr Ali’s psychological state.
Furthermore, Mr Ali at all times followed the certification of his doctors. Even though his psyche was affected he nonetheless honestly advised when he was improving and seemed keen to upgrade to return to work.
For the above reasons I prefer the general practitioners’ assessments of Mr Ali’s work capacity, coupled with that of the physiotherapists findings, to that of the medico-legal specialists. Dr Cameron’s opinion in my view cannot be given weight because he did not examine Mr Ali. Both he and Dr Wallace have not explained, what exactly were the suitable duties they thought Mr Ali could perform. I accept Mr Ali’s counsel’s submission that without such information those doctors’ views about capacity cannot be properly considered.
I have set out in detail the clinical material and the details on the certificates of capacity and will not repeat the same. This summary demonstrates that the general practitioners, mainly Dr Dickson and Dr Calvache-Rubio, did make adjustments to the certification and turned their mind to the improvements in Mr Ali’s condition. For instance, not only were the hours progressively increased but the lifting restrictions were also gradually increased. In early June Mr Ali had no capacity, then his lifting restriction was <5kgs by 15 July the lifting was increased to <8kgs, by 5 August another increase to <10kg and he was certified fit for pre-injury duties on 26 August 2020 with no restrictions. This was just one measure which I have recited to demonstrate what a careful approach Mr Ali’s doctors took to his rehabilitation. Their gradual increasing of his tolerances, in my mind, has assisted a durable return to pre-injury duties.
I have not focused on Dr Assem’s opinion, because I consider like Dr Wallace, he only has seen Mr Ali once.
Turning to the legislation, I consider the weight of the medical evidence that I have accepted supports a finding that in the period 6 April 2020 to 7 June 2020 Mr Ali had no current work capacity and his entitlement was initially under section 36 of the 1987 Act and then under section 37. I make a direction that the respondent pay Mr Ali weekly compensation in accordance with the wages schedule for this period.
When Mr Ali was certified as having a current capacity to return to work it was on the basis he was not fit for his pre-injury employment as a storeperson, working 36 hours undertaking the full duties in that role. He was certified from 8 June 2020 as able to work in suitable employment. The respondent made reference to the factors in the definition of that term. There is a requirement to consider the medical information, which I have done above. Also relevant is a worker’s age, education, skills and work experience together with return to work plans and rehabilitation. In Mr Ali’s case it is noted he was aged about 32. He was educated in Pakistan and completed a Masters Degree in Business Administration. However, since arriving in Australia his work experience has involved physical work of working in a shop and café and for the respondent as a storeperson.
It is relevant to take into account that when Mr Ali was certified as having some capacity for employment, he immediately took up light work with the respondent. He says in his statement he was completing light tasks, including lighter cleaning jobs and repacking and re-shelving damaged stock. Notwithstanding he has degree qualifications, I consider this type of work falls within the definition of suitable employment. The respondent did not argue that he should have pursued office type work utilising his education and, no doubt, this could have been due to the fact that in addition to lifting restrictions he also had sitting restrictions.I find that Mr Ali in following his doctors’ advice about his upgrading was acting appropriately.
I find that the evidence from his treating doctors does support the level of certification set out in the various certificates of capacity. The certificates were changed when there was increased physical capacity in the periods. His doctors did not merely wait for a certificate to expire and just re-issue the same. For instance, on 1 July 2020 the certificate was to cover the period to 22 July, but on 15 July 2020 Dr Dickson increased the certification. I find this shows the care to detail exhibited by Mr Ali’s doctors and I accept the evidence in the certificates represents Mr Ali’s capacity at the time he was assessed.
Accordingly, I have made directions in accordance with the wages schedule which reflects the changes in the certified hours worked and amounts earned by Mr Ali and correctly applies the formulae in sections 36 and 37 of the 1987 Act.
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