Alimmari v Unilver Australia (Holdings) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Alimmari v Unilver Australia (Holdings) Pty Ltd [2021] NSWPIC 464
APPLICANT:	Bashir Alimmari
RESPONDENT:	Unilver Australia (Holdings) Pty Ltd
MEMBER:	Marshal Douglas
DATE OF DECISION:	16 November 2021
CATCHWORDS:	WORKERS COMPENSATION - Applicant employed by respondent as machine operator and cleaner; applicant claimed for weekly payments of compensation; agreed right shoulder injury; disputed lumbar spine injury; also dispute regarding the employment for which the applicant is suited; Held - applicant suffered injury to back; applicant could work full time in several positions; applicant’s current weekly earnings less than 80% of pre-injury average weekly earnings; award for the applicant.
DETERMINATIONS MADE:	1. By consent, the Application to Resolve a Dispute is amended to delete all references to cervical spine. 2. The respondent pay the applicant weekly compensation at the rate of $242.76 from 21 April 2021.

STATEMENT OF REASONS

BACKGROUND

Bashir Alimmari commenced employment with Unilever Australia (Holdings) Pty Ltd on 2 February 2020 working as a machine operator and cleaner. One of the tasks of his job required him to push and pull bins that weighed between 50 and 600 kilograms.
It is uncontroversial that whilst carrying out that task on 12 October 2020, with a bin weighing approximately 600 kilograms, Mr Alimmari suffered an injury to his right shoulder.
Mr Alimmari also claims he suffered an injury to his lower back in that incident. Unilever disputes that.
Unilever initially paid weekly compensation to Mr Alimmari. On 1 April 2021 it wrote to
Mr Alimmari to notify him, under s78 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act), that it disputed liability to pay him further weekly compensation. It notified him it would cease paying him weekly compensation on 21 April 2021. Mr Alimmari’s solicitors sought review of that decision. On 9 July 2021 Unilever wrote to Mr Alimmari care of his solicitors, advising him that it still disputed his claim for weekly payments of compensation. Thereupon Mr Alimmari initiated the present proceedings in the Commission.

PROCEDURE BEFORE THE COMMISSION

On 21 October 2021 I conducted a conciliation conference in which Mr Alimmari participated represented by Mr Beran of Counsel instructed by Mr Dufour. No one in the employ of Unilever participated, but it was represented in that conference by Mr Saul of counsel instructed by Mr Murray. At the conference I used my best endeavours to assist the parties to resolve Mr Alimmari’s disputed claim for compensation. That did not occur and hence the matter progressed to an arbitration hearing.

ISSUES FOR DETERMINATION

The issues for determination are:
(a) whether Mr Alimmari suffered an injury to his lower back arising out of or in the course of his employment and, if so, whether his employment was a contributing factor to that injury, and
(b) what is the weekly amount that Mr Alimmari is able to earn in suitable employment.
The parties agreed that Mr Alimmari’s pre-injury average weekly earnings are $1,317.80.
I note too that in the Application to Resolve a Dispute (ARD), that Mr Alimmari filed to commence these proceedings, he claimed also to have suffered an injury to his cervical spine on 12 October 2020. During the conciliation conference, he withdrew that claim, and with the consent of the parties, I directed the ARD be amended to delete reference to the cervical spine.

EVIDENCE

The following documents are in evidence and have been considered in this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by Unilever dated 14 October 2021 and attached documents;
(d)    Application to Admit Late Documents filed by Unilever dated 21 October 2021 and attached documents, and
(e)    list of Awards published on Fair Work Commission website Unilever filed.
No oral evidence was given.
Mr Saul made oral submissions on behalf of Unilever at the arbitration hearing, which were recorded. A transcript of those submissions has been published. Mr Beran made written submissions for Mr Alimmari which are dated 29 October 2021, although not received by the Commission until 5 November 2021.
I note too that I advised the parties at the start of the arbitration hearing that I intended to have access to the Fair Work Commission website so as to inform myself of the earnings Mr Alimmari would receive in any employment for which I found he was suited.

FINDINGS AND REASONS

Injury to the back

There is a very brief written statement from Mr Alimmari in evidence that he signed on 26 May 2021. In that he described that on 12 October 2020 he was pushing and pulling a large bin weighing approximately 600 kilograms when he felt pain in his right shoulder and lower back. He said he reported his injury and filled in a claim form. He said that he consulted his GP, Dr Rizkalla, and told his GP what happened. He said that his doctor told him that he would “fix my shoulder and then focus on my back”. He said he had never experienced any problems or injuries to his right shoulder or back prior to suffering injury on 12 October 2020.
Mr Alimmari noted in his statement that he had been seen by “Dr Edwards for the insurer”. The Commission notes that in the documents attached to the Reply there is a report of
Dr Kim Edwards dated 17 March 2021, which will be discussed in more detail below. At this juncture, the Commission notes that Dr Edwards is a surgeon and medical legal consultant and, at the request of Unilever, he examined Mr Alimmari on 17 March 2021 and provided a report with respect to his examination to Unilever on the same date. Dr Edwards recounted in that report that Mr Alimmari “spoke fair English”, but recommended that “an interpreter would be preferable” for any future examinations. Dr Edwards said that Mr Alimmari “seemed to understand all the questions”. Dr Edwards also said that he believed he understood all Mr Alimmari’s answers.
In his report of 17 March 2021, Dr Edwards noted that Mr Alimmari told him that he had experienced right shoulder pain and low back pain prior to 12 October 2020 and that he initially suffered “his back complaint” in June or July 2020. However, Dr Edwards also noted that Mr Allimmari “denied any past history of back pain”.
In his statement Mr Alimmari said that he was born in Libya and came to Australia in 2011. He said that his “English is sometimes poor”. He noted that when he saw Dr Edwards a translator was not present. He said that, “I am not sure why Dr Edwards said in his report that I had previous shoulder and back pain as this is not true”.
Dr Rizkalla practices at a surgery called My Doctors Medical Centre, which is located in Macquarie Fields. The clinical records that this practice kept with respect to Mr Alimmari are part of the evidence before the Commission. So too is a handwritten response that
[1] Reply page 14
Dr Rizkalla signed on 10 November 2020 to a questionnaire Unilever had sent him. In his handwritten response to Unilever, Dr Rizkalla noted that he had not seen Mr Alimmari before 13 October 2020[1], Dr Rizkalla recorded obtaining this history from Mr Alimmari, “rt shoulder pain after pushing bin at work”. Dr Rizkalla noted that he recommended Mr Alimmari be referred to Dr Jay Dave for an opinion and management.
The clinical records of the My Doctors Medical Centre include the notes Dr Rizkalla made with respect to his consultation on 13 October 2020 with Mr Alimmari. They were that
Mr Alimmari consulted him for right shoulder pain that Mr Alimmari had experienced at his work on the previous day. The records indicate that Dr Rizkalla examined Mr Alimmari for right shoulder pain and right shoulder impingement. Dr Rizkalla did not make any record of having obtained a history from Mr Alimmari of Mr Alimmari having suffered back pain on 12 October 2020. Indeed, there is no record made by any GP practising at that centre until 19 February 2021 of Mr Alimmari suffering back pain, at which time Dr Rizkalla noted that Mr Alimmari consulted him that day of “back pain, after long standing at work…move to right thigh, some time”.
Preceding Mr Alimmari’s consultation with Dr Rizkalla on 19 February 2021, Mr Alimmari had consulted Dr Rizkalla or other GPs operating out of the centre on nine occasions following his initial consultation on 13 October 2020 with Dr Rizkalla. Within that time Dr Rizkalla and another GP issued certificates of capacity, in accordance with the form published by the State Insurance Regulatory Authority, in which a diagnosis of “r shoulder pain, r shoulder impingement” was provided. Further, within that period Mr Alimmari consulted physiotherapist Mrs Hadya Tadraus who also practiced at the My Doctors Medical Centre at Macquarie Fields. There is nothing within the notes she made in the clinical records of obtaining a history from Mr Alimmari of his suffering back pain in the incident of 12 October 2020.
On 13 October 2020 Mr Alimmari notified his injury to Unilever. There is in evidence a form titled “Notification of Workplace Injury” that bears Unilever’s trademark, in which
Mr Alimmari’s injury is described as “r shoulder impingement/shoulder pain”. The form refers to Mr Alimmari in the third person. The description of his injury within that form reflects what was contained in the initial certificate of capacity that Dr Rizkalla issued on 13 October 2020. The content of the form has been typed rather than handwritten. The Tribunal infers that this form was in all likelihood completed by an employee of Unilever, based upon the certificate of capacity that Mr Alimmari handed Unilever, rather than Mr Alimmari himself populating the various fields within the form with data.
The clinical records reveal that following a consultation between Mr Alimmari and Dr Rizkalla on 6 November 2020, in which Dr Rizkalla noted that Mr Alimmari’s right shoulder was worse, Dr Rizkalla referred Mr Alimmari to Dr Jay Dave and printed a letter for that purpose. That letter is not in evidence. Dr Dave is an orthopaedic surgeon. Mr Alimmari saw Dr Dave on 23 November 2020, following which Dr Dave wrote a letter to Dr Rizkalla in which
Dr Dave advised:
“[Mr Alimmari] had an injury at work on 12.10.20 whilst pulling a heavy bin loaded with ice cream. He injured his shoulder and his lower back.”
On 23 February 2021 Dr Rizkalla issued a certificate of capacity in which Mr Alimmari’s injury was described in these terms: “r shoulder pain, mild subacromial bursitis, back pain”.
All certificates of capacity issued out of the My Doctors Medical Centre subsequent to that date referred to back pain when describing the injury Mr Alimmari suffered on 12 October 2020.
As mentioned earlier, Mr Alimmari consulted surgeon and medical legal consultant
Dr Edwards on 17 March 2021 at the request of Unilever. As also mentioned, Dr Edwards reported to Unilever that Mr Alimmari had told him that he had right shoulder pain and lower back pain prior to 12 October 2020 and that he thought he suffered a back complaint initially in June or July 2020. Dr Edwards however, later in his report, said that Mr Alimmari “denied any past history of back pain”.
Dr Edwards also reported that on 12 October 2020 Mr Alimmari “found that he could not push a 600 kilogram bin because of pain, which he indicated was present on the anterior superior aspect of his right shoulder, and also because of pain in his lower back”.
Dr Edwards had regard to an x-ray of Mr Alimmari’s lumbar spine that had been done on 19 February 2021 and also a report of a CT scan of Mr Alimmari’s lumbar spine that was done and reported on 23 February 2021. Dr Edwards conducted an examination of Mr Alimmari’s lumbar spine and recorded his findings from that within his report to Unilever.
Dr Edwards said, with respect to Mr Alimmari’s back, that based upon what he had found from his examination of Mr Alimmari’s lumbar spine Mr Alimmari’s back did not appear to be a significant problem. He said that Mr Alimmari “may have aggravated the previously present symptoms in his lower back in the course of his everyday activities both in and out of work”. Dr Edwards said that Mr Alimmari could have back pain due to degenerative changes in his lumbar spine. Dr Edwards did not consider that “Mr Alimmari’s complaints of back pain are reasonably related to his work”. Dr Edwards said that there was no evidence that the incident on 12 October 2020 caused “any pathological condition” in Mr Alimmari’s lower back. Dr Edwards’ opinion in that regard was premised upon Mr Alimmari having experienced lower back symptoms prior to 12 October 2020. Dr Edwards also said that because Mr Alimmari had back pain prior to 12 October 2020 that what occurred on 12 October 2020 was a “possible secondary injury” that was not the “result of Mr Alimmari’s employment with Unilever”.
Unilever’s solicitors subsequently wrote to Dr Edwards asking Dr Edwards if he could confirm whether he had any issue regarding the history that Mr Alimmari had provided him on 17 March 2021. Dr Edwards, in response to that, repeated what he had said in his report of 17 March 2021 about Mr Alimmari speaking “fair English” and also that it would be preferable if an interpreter could be available “for future examinations”. Dr Edwards repeated that he considered Mr Alimmari seemed to understand the questions he had asked Mr Alimmari.
Dr Edwards repeated that he believed he understood Mr Alimmari’s answers. Dr Edwards had been provided with a copy of Mr Alimmari’s statement of 26 May 2021 and hence was aware that Mr Alimmari had denied telling Dr Edwards that he had experienced prior back and shoulder pain. Dr Edwards said that “when taking history, I record responses given to questions. They are then incorporated into the report”.
Mr Alimmari’s solicitors organised for Mr Alimmari to be examined by orthopaedic surgeon
Dr Yuk Kai Lee, which occurred on 3 June 2021. Dr Lee provided a report to Mr Alimmari’s solicitors on 10 June 2021. Dr Lee noted in his report that an interpreter in the Arabic language was present during his consultation with Mr Alimmari. Dr Lee noted that
Mr Alimmari gave a history of pulling a large bin and feeling a sharp pain in his right shoulder and lower back, with the lower back pain radiating to the left leg. Dr Lee noted that at the time of the consultation Mr Alimmari was still complaining of back pain that sometimes radiated down his left leg, with the pain being felt more at night. Dr Lee noted the back pain could be aggravated while Mr Alimmari was standing and sitting. Dr Lee indicated the history Mr Alimmari provided included not having any prior medical conditions. Dr Lee had regard to the report on the CT scan of Mr Alimmari’s lumbar spine done on 23 February 2021. Dr Lee conducted examination of Mr Alimmari which included his lumbar spine.
Dr Lee considered that the incident on 12 October 2020 in which Mr Alimmari pushed a heavy large industrial bin “caused the injury as described”. With respect to Mr Alimmari’s lower back, Dr Lee considered the injury was a “mild L4/5 disc injury”.
Unilever contended, in substance, that because there is no mention until 19 February 2021 within the records the My Doctors Medical Centre kept for Mr Alimmari of Mr Alimmari having experienced back pain, at which time it was noted that Mr Alimmari had experienced back pain after standing at work the previous week, I could not be satisfied that Mr Alimmari experienced pain in his back in the incident on 12 October 2020. Unilever contended that the notice of injury form revealed that Mr Alimmari disclosed only having suffered an injury to his right shoulder. Unilever contended that I would not be satisfied, given what was contained in the notice of injury form and the lack of any history being recorded within the GP records for several months of Mr Alimmari suffering back pain in the incident of 12 October 2020 I would not be satisfied that Mr Alimmari suffered an injury to his back in that incident.
The Court of Appeal has cautioned arbiters of fact against discounting an applicant’s evidence on the basis of the records of a treating health professional where the health professional has not been called to give evidence in litigation in which the applicant prosecutes a claim relating to an injury.[2] This is for several reasons including establishing whether the history is accurate. Further, the purpose of the health professional in obtaining the history is to treat the person rather than assisting the forensic exercise that tribunal of fact may later undertake when analysing that history.
[2] See Mason v Demasi [2009] NSWCA 227 per Basten JA at [2] and Container Terminals Australia Ltd v Husey In [2008] 320 at [8]
Mr Alimmari’s evidence is that on 13 October 2020 he reported to Dr Rizkalla that he suffered pain in his back in the incident on 12 October 2020. Dr Rizkalla did not note that in his records. Mr Alimmari recounted in his statement that Dr Rizkalla told him, to the effect, that he would firstly focus on Mr Alimmari’s right shoulder and then his back.
As noted above, on 23 November 2020, which was within six weeks of the incident of 12 October 2020, Mr Alimmari provided a history to orthopaedic surgeon Dr Dave that he suffered back pain in the incident on 12 October 2020. Whilst the letter of referral Dr Rizkalla wrote to Dr Dave is not in evidence, I infer from the fact that Dr Dave reported to Dr Rizkalla his findings from an examination only of Mr Alimmar’s right shoulder, that the purpose of the referral was for treatment and management of Mr Alimmar’s shoulder. That is consistent with Mr Alimmari’s evidence to the effect that Dr Rizkalla’s intent was to focus firstly on treatment of Mr Alimmar’s shoulder.
Dr Dave reported to Dr Rizkalla that Mr Alimmari had provided him a history of back pain in the incident on 12 October 2020, and consequently Dr Rizkalla was aware, from 23 November 2020, that Mr Alimmari had reported that to Dr Dave. But Dr Rizkalla did not in several ensuing consultations he had with Mr Alimmari regarding his injury on 12 October 2020 made a record of Mr Alimmari having suffered back pain on 12 October 2020. In my view, that accords with Mr Alimmari’s evidence that Dr Rizkalla’s expressed intent was to focus on his shoulder.
As set out above, it is likely in my view, that an employee of Unilever, rather than by
Mr Alimmari, completed the notification of injury form following Mr Alimmari providing the initial certificate of capacity to Unilever that Dr Rizkalla had issued on the 13 October 2020. In other words, that notification of injury form is not a document containing any assertion from Mr Alimmari to the effect that his injury on 12 October 2020 was limited to his right shoulder.
The incident in which Mr Alimmari was involved on 12 October 2020 involved his pulling and pushing a bin weighing 600 kilograms. His evidence was that the wheels of these bins would get stuck and jam which made it difficult to push and pull the bins. It is plausible that such a task would place significant pressure on Mr Alimmari’s lower back and indeed this is confirmed by virtue of Dr Dave in his report of 23 November 2020 to Dr Rizkalla not in any way doubting the history Mr Alimmari provided of suffering a back injury in the incident. Further, Dr Edwards considered that such an incident would cause back pain, although
Dr Edwards, having understood Mr Alimmari to have provided a history of having pre-existing back pain, considered that Mr Alimmari’s back pain on 12 October 2020 was “a possible secondary injury”.
It seems likely, based upon what is recorded in the My Doctors Medical Centre clinical records that Mr Alimmari experienced a worsening of his pain in his back in mid February, and after consulting Dr Rizkalla on 19 February 2021 with respect to this Dr Rizkalla thereafter issued certificates of capacity in which he recorded the diagnosis of Mr Alimmari’s injury of 12 October 2020 including back pain. That is consistent with Mr Alimmari’s evidence of having provided Dr Rizkalla a history on 13 October 2020 of his suffering back pain in the incident of 12 October 2020 and of Dr Rizkalla firstly focusing on treatment of
Mr Alimmari’s right shoulder rather than his back.

Little weight can be placed upon the opinion that Dr Edwards expressed that Mr Alimmari’s complaints of back pain are not reasonably related to Mr Alimmari’s work. This is because the doctor’s opinion is premised upon Mr Alimmari having experienced back pain prior to 12 October 2020. Mr Alimmari’s evidence is that he did not and further, that he did not provide that history to Dr Edwards. Dr Edwards in his report said that he believed Mr Alimmari understood his questions and that he understood Mr Alimmari’s answers to his questions, but nevertheless it would have been preferable for an interpreter in the Arabic language to have been present.
Given Dr Edwards’ expression of his preference for an Arabic interpreter to be present, there is, in my view, a likelihood that Mr Alimmari may have misunderstood what was being asked of him by Dr Edwards and hence an inaccuracy in what he was saying to Dr Edwards, or alternatively Dr Edwards may have misunderstood Mr Alimmari’s answers. To my mind, that is confirmed by the fact that Dr Edwards recorded in his report to Unilever of 17 March 2021 conflicting things about Mr Alimmari’s history of prior back pain, saying that Mr Alimmari had provided a history of a back pain from June or July 2020 and also saying that Mr Alimmmari denied any past history of back pain. That reveals, in my view, there was some confusion either on the part of Dr Edwards or Mr Alimmari or both in the questions posed and the answers given while Dr Edwards was taking a history.
In all, I am satisfied based on the opinion expressed by Dr Lee, which in my view is based upon a correct history and took into account the relevant radiology and his findings from his examination of Mr Alimmari, that Mr Alimmari did suffer an injury on 12 October 2020 to his lower back on 12 October 2020 in the form of a mild L4/5 disc injury.
There was no other incident that occurred that contributed to Mr Alimmari suffering that injury on that date. Accordingly, I am also satisfied that Mr Alimmari’s employment with Unilever was a substantial contributing factor to his injury to his lower back on 12 October 2020.

Mr Alimmari’s current work capacity

Mr Alimmari’s claim for weekly payments of compensation from Unilever from 21 April 2021 is made pursuant s 37 of the Workers Compensation Act 1987 (the 1987 Act).
Mr Beran in his written submissions for Mr Alimmari contended that Mr Alimmari’s entitlement under s 37 would be in the range of $527.97 to $537.37 a week on the basis that he could work for 24 hours a week as a fork lift driver. Mr Saul for Unilever submitted that there was a wide variety of sedentary work and receptionist style jobs in which Mr Alimmari could be employed. Mr Saul further submitted that Mr Alimmari could also work as a machine operator and work as a fork lift driver. Unilever also contended, within the list of awards published on the Fair Work Commission website that Unilever’s solicitor filed subsequent to the arbitration, that Mr Alimmari could be employed full time within positions covered by the Road Transport and Distribution Award 21 July 2021, the Passenger Vehicle Transportation Award 2020, the Hospitality Industry (General) Award 2020, the Storage Services and Wholesale Award 2020 and the General Industry Award 2020.
Noting Mr Beran’s submissions, Mr Alimmari’s position is that he has a current work capacity. It is implicit from his claim and the submissions both Mr Beran and Mr Saul made, that for the period for which Mr Alimmari seeks weekly payments of compensation from Unilever he has not been working. In accordance with s 37(3) of the 1987 Act Unilever is required to make weekly payments of compensation to Mr Alimmari at the rate calculated by deducting
Mr Alimmari’s current weekly earnings from 80% of his pre-injury average weekly earnings. The parties agree that Mr Alimmari’s pre-injury average weekly earnings are $1,317.80, 80% of which is $1,054.24.
“Current weekly earnings” is defined in Clause 3 of Schedule 3 of the 1987 Act to mean, in the circumstance where a worker is not receiving earnings from work, the weekly amount the worker is able to earn in suitable employment. Suitable employment is defined in s 32A of the 1987 Act to mean employment in work for which the worker is suited having regard to:
(i)    the nature of the worker’s incapacity and details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under s44B), 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 or rehabilitation services being, or have been, provided to or for the worker.
but ignoring:
(i) whether 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.
Determining what is suitable employment in which Mr Alimmari can work requires essentially identifying “real jobs” that Mr Alimmari can do.[3]
[3] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [63]
Mr Alimmari revealed in his statement that he was born on 8 October 1975 and hence for the period for which he seeks weekly payments of compensation he has been at least 35 years of age. He said he was born in Libya and came to Australia with his family in 2011. He said his English is sometimes poor. Notwithstanding that, he has been able to complete an Engineering Certificate IV in 2015. That would have required a basic competency in English, in that he would have had to comprehend the lessons and provide answers in the assessments conducted to ascertain whether he ought to be conferred the certificate. He has also worked as a uber driver between 2018 and starting his employment with Unilever. That too would have required a basic competency in English so as to understand any directions a passenger may provide. Further, he worked for Unilever for eight months as a fork lift driver and machine operator before suffering injury, and I infer from that that his competence in English would have been sufficient to comprehend the instructions he would have received from Unilever to enable him to undertake this job.
In my view, Mr Alimmari’s competency in English is such he would be able to undertake work in clerical and receptionist positions and also in retail and hospitality positions.
In the certificate of capacity Dr Rizkalla issued on 13 April 2021, being the most recent before the commencement of the period for which Mr Alimmari seeks weekly payments of compensation from Unilever, Dr Rizkalla certified that Mr Alimmari had the capacity for some work between 10 April and the 22 April 2021 for normal hours a day for normal days of the week. Dr Rizkalla certified within that certificate that Mr Alimmari was to lift a maximum of
10 kilograms.
In the final certificate of capacity Dr Rizkalla issued on 23 April 2021 he again certified that Mr Alimmari had capacity for some type of work between 23 April 2021 and 24 May 2021 for eight hours a day for five days a week. In that certificate Dr Rizkalla certified that
Mr Alimmari should avoid lifting more than 5 kilograms. Dr Rizkalla further certified that
Mr Alimmari needed to be assessed by specialist Dr Darwish and Dr Dave. Dr Darwish is a neurosurgeon and spinal surgeon. Dr Rizkalla in that certificate also said that Mr Alimmari would need “OT assessed at work place regarding safety at work or pushing 600 kilogram bin, that Mr Alimmari will need to be assessed by a physio for his symptoms”. In other words, Dr Rizkalla was expressing a view that both specialist medical practitioners and paramedical practitioners, specifically an occupation therapist and physiotherapist, ought to be consulted to determine definitively what work Mr Alimmari was suited to do.
On 24 September 2021 Dr Rizkalla wrote a letter, addressed to no one, in which he stated:
“Mr Bashir Alimmari is fit for work from 24/09/202 (sic: 2021) ongoing
With following restriction:
1- Avoid carry more than 5 kilograms
2- Maximum hours per day 8 hours/7 days a week.”
As mentioned earlier, at the request of Mr Alimmari’s solicitors Mr Alimmari was examined by orthopaedic surgeon Dr Lee. As also mentioned, Dr Lee provided a diagnosis that
Mr Alimmari suffered mild L4/5 disc injury to his lower back. Dr Lee said, with respect to
Mr Alimmari’s right shoulder, that Mr Alimmari had suffered a mild supraspinatus tendonitis, which he diagnosed as a rotator cuff injury. Dr Lee said that Mr Alimmari would be unable to do the cleaning job that Mr Alimmari had previously been assigned to do, which Dr Lee noted in his report required Mr Alimmari to push and pull a heavy bin. Dr Lee said that Mr Alimmari should avoid working with his arms elevated and avoid bending his back. Dr Lee said that Mr Alimmari should avoid jobs that would require him lifting more than 5 kilograms and should avoid pushing and pulling.
As discussed above, Dr Edwards did not consider that Mr Alimmari’s back symptoms were related to his employment, which opinion I have rejected. With respect to Mr Alimmari’s right shoulder, Dr Edwards considered that the incident on 12 October 2020 may have caused
Mr Alimmari symptomatic aggravation of an underlying impingement syndrome. Dr Edwards considered that was a “temporary symptomatic aggravation”. Dr Edwards took a history of Mr Alimmari having pre-existing symptoms in his right shoulder, which is contrary to
Mr Alimmari’s evidence in his statement. Mr Alimmari’s evidence in his statement was that he did not say that to Dr Edwards. As discussed above, when considering whether
Mr Alimmari had suffered an injury to his back, the likelihood is that there was some misunderstanding either on the part of Dr Edwards or on the part of Mr Alimmari or both with respect to the issue of pre-existing symptoms. I am satisfied from Mr Alimmari’s evidence that he did not suffer pre-existing symptoms in his shoulder before 12 October 2020. The evidence is clear that he has continued to suffer symptoms in his shoulder from 12 October 2020 and I am satisfied that what occurred on 12 October 2020 did not result in a temporary aggravation of an underlying condition, but rather resulted in an injury that has had persisting symptoms to date.
Dr Edwards expressed his view in his report of 17 March 2021 that Mr Alimmari would be fit to carry out work that does not cause him discomfort. In his subsequent report of 14 October 2021 he said that Mr Alimmari was fit to work fulltime duties including in retail, uber driving or courier driving, fork lift driving and office type duties.
It seems to me that the limitations on the task that Dr Lee and Dr Rizkalla considered
Mr Alimmari would be able to undertake, as a consequence of the injury he suffered on 12 October 2020, would enable Mr Alimmari to perform the type of jobs on a full time basis that Dr Edwards considered Mr Alimmari could do, with the exception of fork lift driving.
On 17 September 2021 Unilever referred Mr Alimmari to Mr Carlos Nohra, a senior occupational therapist, to carry out a functional capacity evaluation of Mr Alimmari. This was with a view to determining Mr Alimmari’s physical condition, functional abilities and work tolerances for a position within Unilever of chocolate melter/fork lift operator. Mr Nohra conducted that evaluation on 7 October 2021 and reported to Unilever on 12 October 2021. His assessment involved his observing Mr Alimmari performing several tasks and also considering Mr Alimmari’s responses to standard questionnaires that Mr Nohra detailed in his report.
Mr Nohra concluded that Mr Alimmari had no functional limitations with respect to undertaking duties while sitting. He concluded that for tasks that would require Mr Alimmari to stand and walk Mr Alimmari would need postural breaks of two to five minutes an hour. Mr Nohra concluded that Mr Alimmari could lift cardboard boxes weighing 4.5 kilograms provided Mr Alimmari used correct bending techniques. Mr Nohra concluded that
Mr Alimmari could remove plastic shrink wrapping from chocolate blocks without any functional issue or concern in the performance of that work. Mr Nohra concluded that
Mr Alimmari would experience functional issues with respect to squatting and crouching.
Mr Nohra concluded that Mr Alimmari could safely enter and exit a fork lift. Mr Nohra noted that work as a fork lift driver would require Mr Alimmari to handle empty pallets weighing up to 12.5 kilograms in regards to which Mr Nohra said that Mr Alimmari would be at moderate risk of flare up and exacerbation of pain.
The upshot of that is that Mr Alimmari would be able to perform work as a fork lift driver but only if he was not required to lift or handle empty pallets. Given that limitation, coupled with the opinions of Dr Rizkalla and Dr Lee that Mr Alimmari should not lift more than 5 kilograms of weight, I consider that Mr Alimmari is not suited to work as a fork lift driver. In my view, a position in which a fork lift driver would not be required to lift or handle empty pallets is not a “real job”.
In my view, noting the limitations that Mr Alimmari has with respect to lifting and, as concluded by Mr Nohra, with respect to standing and crouching, it seems to me that
Mr Alimmari would be able to work in numerous positions, such as an uber driver or limousine driver, in clerical and receptionists positions and in hospitality positions, such as in fast food stores.
It seems to me that Mr Alimmari would be unsuited for employment covered by some of the awards that Unilever submitted were applicable, namely the Road Transport and Distribution Award, the Storage Services and Wholesale Award and the General Retail Industry Award. In my view, employment within the positions covered by those awards would likely require
Mr Alimmari to lift weights greater than 5 kilograms, for which Mr Alimmari would be unsuited.
With respect to employment as an uber driver or limousine driver or as a clerk or within the fast food industry, Mr Alimmari would, in all likelihood, not be required to undertake such activity or be required to squat or crouch. In my view, whilst he has limitation with English, his competency is such that it would not prevent him from obtaining employment within those positions and this is evident from his previously having completed study in Australia, his previously having been employed as an uber driver and his employment with Unilever for a period of eight months which necessarily would have involved his having a basic competency in English.
The Clerks - Private Sector Award 2020 reveals that the fulltime rate of pay for a level 1 clerk is $821.40 a week. The award describes a level 1 position as including initial recruits who have limited experience and are required to perform work under close direction. Employees in such a position would be required to perform routine clerical and office functions requiring an understanding of clear and straight forward rules and procedures. Noting the positions in which Mr Alimmari has previously worked and the fact that he was able to complete an Engineering Certificate IV I consider that he would be able to work full time in a clerical position at level 1 earning $821.40 a week.
I also consider that Mr Alimmari could work as a limousine or hire car driver. The Passenger Vehicle Transportation Award 2020 reveals that a person employed in such a position at the grade 1 level would receive $833.40 a week.
The Hospitality Industry (General) Award 2020 stipulates that the rate of pay for someone employed in the level 1 classification is $794.80 a week. Someone employed within that grade would be required to pick up glasses, empty ashtrays, provide assistance to food and beverage attendants, remove food plates, set and wipe tables and general cleaning and tidying. None of that requires lifting more than 5 kilograms, working with his arm above shoulder level or crouching or squatting. The collection of glasses and ashtrays and plates and the wiping of tables would be done at waist level.
The average weekly wage of employment under those three awards is $816.53. In my view, that represents the weekly amount that Mr Alimmari is able to earn in suitable employment.
I note Mr Beran highlighted in his submissions for Mr Alimmari that Mr Nohra considered
Mr Alimmari is deconditioned. Mr Nohra came to that view because at the time he carried out his assessment of Mr Alimmari, Mr Alimmari had not worked for four to five months and had not had sufficient treatment to date. Mr Nohra considered that Mr Alimmari’s placement in the position of chocolate melter and fork lift driver, for which position Mr Nohra was evaluating Mr Alimmari’s suitability, should be done gradually starting with Mr Alimmari working 24 hours in the first fortnight and progressing to 40 hours a week over the course of 3 fortnights. However, Mr Nohra expressed that view specifically with respect to Mr Alimmari being employed in the position of a chocolate melter and fork lift operator. Neither Dr Lee nor Dr Rizkalla expressed the view that Mr Alimmari’s return to fulltime work should be done gradually over a relatively small course of time. The only limitation they considered should be imposed was that Mr Alimmari not lift more than 5 kilograms.
In my view, there is no evidence to indicate that Mr Alimmari would not be able to work in a clerical position on a fulltime basis immediately, or indeed would not have been able to do so from 21 April 2021. Further, it seems to me that the tasks that Mr Alimmari would be required to do as a limousine driver or a hire car driver and in a grade 1 position within the hospitality industry would not be as strenuous as a fork lift driver and, in my view, I am not persuaded there is any reason why Mr Alimmari cannot and has not been able to work in fulltime within those positions for the period for which he claims compensation from the respondent.
Based on those findings, the weekly payment of compensation to which Mr Alimmari is entitled, in accordance with s 37(3) of the 1987 Act is $242.76 and I order that the respondent make weekly payments of compensation to Mr Alimmari from 21 April 2021 at the rate of $242.76.

[2021] NSWPIC 464

16 November 2021