Allan v L.J Livermore & T.F Ritchie
[2023] NSWPIC 346
•13 July 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Allan v L.J Livermore & T.F Ritchie [2023] NSWPIC 346 |
| APPLICANT: | Tracey Allan |
| RESPONDENT: | LJ Livermore & TF Ritchie |
| Member: | Anthony Scarcella |
| DATE OF DECISION: | 13 July 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; review of work capacity decision based on vocational assessment report; section 43(1), 32A and 37(1); Wollongong Nursing Home Pty Ltd v Dewar; Paric v John Holland (Constructions) Pty Ltd; Makita (Australia) Pty Ltd v Sprowles; South Western Sydney Area Health Service v Edmonds; Hancock v East Coast Timbers Products Pty Ltd considered and applied; Held – the applicant had no current work capacity during the period claimed within the meaning of section 32A; the respondent’s work capacity decision dated 26 July 2022 is set aside; the respondent is to pay the applicant weekly compensation under section 37(1) from 7 November 2022 to 14 January 2023. |
| determinations made: | The Commission determines: 1. The applicant had no current work capacity during the period 7 November 2022 to 14 January 2023 within the meaning of s 32A of the Workers Compensation Act 1987. 2. The respondent’s work capacity decision dated 26 July 2022 is set aside. 3. The respondent is to pay the applicant weekly compensation as follows: (c) liberty to apply within 14 days in relation to the calculation of weekly benefits. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Ms Tracey Allan, is a 53-year-old woman who was employed by the respondents, LJ Livermore and TF Ritchie (Livermore & Ritchie), as a disability support worker on a casual basis.
Ms Allan alleges that, on 2 July 2020, she sustained injuries to her lower back and her left knee in the course of her employment with Livermore & Ritchie as a result of being assaulted by a client. Further, Ms Allan alleges that she sustained consequential injuries to her right wrist, right knee and right hip.
Ms Allan lodged a claim for benefits under the Workers Compensation Act 1987 (the 1987 Act).
On 26 July 2022, Employers Mutual Limited (EML), acting as the agent of NSW Self Insurance Corporation (icare), issued a work capacity decision under s 43(1)(a), (b) and (c) of the 1987 Act, determining that Ms Allan was able to work in suitable employment as a sales assistant earning $540.20 per week. The effect of the work capacity decision was to reduce Ms Allan’s ongoing weekly benefits to $323.80 from 7 November 2022 under s 37 of the 1987 Act.[1]
[1] Application for Expedited Assessment at pages 6-13.
On 16 November 2022, Ms Allan, through her lawyers, requested a review of the work capacity decision contained in EML’s dispute notice dated 26 July 2022 under s 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Ms Allan submitted that she was entitled to ongoing weekly benefits compensation from 7 November 2022 on the basis of her “total incapacity for employment”.[2]
[2] Application for Expedited Assessment at pages 20-21.
On 30 November 2022, EML issued the outcome of its review under s 287A of the 1998 Act maintaining its work capacity decision dated 26 July 2022.[3]
[3] Application for Expedited Assessment at pages 14-19.
Ms Allan, through her lawyers, lodged an Application for Expedited Assessment (AEA) dated 8 March 2023 in the Workers Compensation Division of the Personal Injury Commission (Commission) claiming an entitlement to weekly benefits compensation from 7 November 2022 and ongoing under s 37(1) of the 1987 Act as a result of the injuries sustained in the course of her employment with Livermore & Ritchie on 2 July 2020.
ISSUE FOR DETERMINATION
The parties agreed that the issue for my determination is Ms Allan’s entitlement to weekly payments of compensation within the meaning of ss 32A, 33 and 37 of the 1987 Act arising from her accepted left knee, right wrist, low back and psychological injury between
7 November 2022 and 14 January 2023 on the background of EML’s work capacity decision dated 26 July 2022.
Matters previously notified as disputed
The issues in dispute were notified in the dispute notices referred to above.
Matters not previously notified
No other issues were raised.
PROCEDURE BEFORE THE COMMISSION
The parties participated in a preliminary conference via MS Teams on 11 April 2023. Mr Bill Carney of counsel appeared for Ms Allan, instructed by Ms Reichelle Jackson, solicitor and Ms Tarana Singh, solicitor appeared for Livermore & Ritchie.
During the preliminary conference, the parties agreed as follows:
(a) Ms Allan’s pre-injury average weekly earnings (PIAWE) were $1,080;
(b) the correct date of injury was 2 July 2020 and not 2 May 2020 as pleaded in the AEA;
(c) weekly benefits compensation payments to Ms Allan had resumed under s 37(1) of the 1987 Act on 15 January 2023, and
(d) the matter could proceed to a determination without a conference or formal hearing following the provision of written submissions.
On 11 April 2023, I granted Ms Allan leave to amend the AEA by amending the date of injury to 2 July 2020 and by amending the period of weekly compensation in dispute to a closed period, namely, 17 November 2022 to 14 January 2023. I also made directions for the provision of written submissions.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. 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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) AEA dated 8 March 2023 and attached documents, and
(b) Reply to AEA (Reply) dated 5 April 2023 and attached documents.
Oral evidence
Neither party sought leave to adduce oral evidence from or to cross-examine any witness.
Ms Tracey Allan’s evidence
In evidence, there is a statement by Ms Allan dated 7 March 2023. I will now refer to the relevant parts of that statement.
Ms Allan stated that, in about 1996, she fractured her left patella after tripping over her son’s pushbike. She underwent surgery for the patella fracture and following that surgery her left knee fully resolved. She had no further issues with her left knee until the subject incident on 2 July 2020.
Ms Allan stated that she commenced working for Livermore & Ritchie in March 2020 as a disability support worker on a casual basis in a residential home known as Infinity Residential House. During her shift, her job was to assist an autistic client named Ally. Ally also had intellectual and behavioural problems.
Ms Allan stated that, on 2 July 2020 in the presence of a co-worker, Tammy and Ally’s occupational therapist, Ally began to display signs of aggressive behaviour. They medicated her with Valium. Ms Allan requested Tammy to provide a male staff member to accompany her for the rest of her shift with Ally because she felt anxious and scared. Tammy advised that it was not possible because they were short staffed.
Ms Allan described the subject incident on 2 July 2020 in the following terms:
“During the shift, I decided to take Ally to get McDonald’s ice cream as it usually made her happy, we returned home and [Ally] said ‘Tracey, you can f**k off and go home.’ I told her that I could not do that and that I needed to stay and take care of her. She kept saying to me to go home and said words to the effect of ‘F**k off or I am going to hurt you.’ She began to yell at me and came towards me, she was standing on the front step above me then kicked me in a downward motion in my left knee. She then pulled me by the shirt and slammed me into the front concrete pillar of the house, breaking my glasses and hurting my back.”[4]
[4] AEA at page 2 at [8].
Ms Allan stated that, following the incident described above, she ran to the front counsel pathway. Ally followed her, pulled the house letterbox and pole out of its stand and used it to strike her on her right arm. As Ms Allan tried to protect herself, Ally broke the back windscreen wipers off Ms Allan’s car.
Ms Allan stated that she used her mobile telephone to call the police and her employer and reported the incident. Ms Allan waited for a relief worker to attend before she was able to drive herself to Wodonga Hospital. She was in immense pain all over her body, particularly, in her left knee and lower back. She underwent scans and was advised that they did not demonstrate any fracture of the left knee. She was discharged home and advised to follow-up with her general practitioner.
Ms Allan stated that, on 9 July 2020, she consulted her general practitioner at the Gardens Medical Group reporting that she had been assaulted by a client at work and had been experiencing pain in her lower back and left knee. The doctor provided her with a certificate of capacity.
Ms Allan stated that, after a few months, she continued to experience pain in her left knee and was referred to a surgeon, Dr Gayagay at Gardens Medical Group, who recommended surgery to her left knee. She was anxious about the procedure and sought a second opinion from Dr Prue Keith, orthopaedic surgeon.
Ms Allan stated that, on 17 August 2021, she underwent a partial knee replacement. Following the surgery, she experienced significant weakness in her left knee and her left leg regularly gave way without warning which constantly caused her to fall on her right side. On these occasions, she would use her right wrist to try and catch herself and the tendons in the wrist became inflamed.
Ms Allan stated that, on 11 October 2021, she consulted her general practitioner and reported experiencing her left knee giving way and falling. She described an incident where she landed on her backside and reached out her right arm to try and brace herself. She also reported the fall to her physiotherapist and Dr Keith.
Ms Allan stated that, on 2 February 2022, she consulted her general practitioner complaining of pain in her right wrist and right thumb after having fallen over in October 2021 and landing on her backside. She informed her doctor that she had been receiving physiotherapy and that the physiotherapist had been taping her right wrist but that the pain and restriction of movement in her right wrist had progressively worsened. She underwent an X-ray and ultrasound of her right wrist.
Ms Allan stated that, on 20 March 2023, she was scheduled to undergo right wrist fusion surgery by Dr James Churchill at Wangaratta Private Hospital.
Ms Allan stated that she continues to regularly consult her general practitioner. She continues treatment at Flex Out Physiotherapy and takes medication in the form of Panadeine Forte, Panadol and Nurofen almost daily.
Ms Allan stated that she had attempted to return to work with Livermore & Ritchie in January 2021 but was unable to do so due to the ongoing pain in her left knee and lower back, which prevented her from performing her duties. She also struggled to cope due to the depression and anxiety she was experiencing following the incident on 2 July 2020.
Ms Allan stated that she had been out of work since 2 July 2020 and had been in receipt of workers compensation benefits. She referred to EML’s work capacity decision that determined her capacity to work at 20 hours per week and stated that she disagreed with it.
Ms Allan stated that she was currently certified as unfit for work and had been so certified for the past two months (January/February 2023).
Ms Allan stated that she continues to suffer from the following symptoms as a result of the work-related injuries on 2 July 2020:
(a) pain and restriction of movement in the left knee;
(b) pain and restriction of movement in the lower back;
(c) pain and restriction of movement in the right wrist;
(d) pain and restriction of movement of the right hip and right knee;
(e) aggravated post-traumatic stress disorder;
(f) the consequences of depression and anxiety;
(g) poor mood;
(h) inability to perform her pre-injury work-related activities;
(i) inability to perform her pre-injury domestic tasks;
(j) social isolation;
(k) difficulty concentrating;
(l) significant pain on prolonged standing and walking;
(m) inability to walk long distances;
(n) difficulty walking up and down stairs and on rough and uneven ground;
(o) difficulty sitting for long periods;
(p) giving way of the left knee;
(q) swollen and painful feet;
(r) difficulty or inability to use her right hand;
(s) difficulty kneeling, bending and squatting, and
(t) difficulty sleeping.
I note that EML accepted liability in respect of the claimed post-traumatic stress disorder, left knee injury, low back injury and right wrist injury. Ms Allan’s claim in respect of consequential injuries to her right knee, right hip, right foot and right heel remain declined. As I understand it, Ms Allan does not rely on the latter mentioned consequential injuries in respect of the issue of work capacity and I am not required to determine whether those injuries are work-related.
Ms Allan stated that she resides with her daughter, her husband and their three children, who assist her in performing daily activities because she struggles to complete most domestic tasks on her own. She is only able to move around for less than an hour before having to rest because of the pain in her left knee.
Ms Allan stated that she is right hand dominant and that, as a result of the consequential injury to her right wrist, she struggles to carry any weight in her right hand.
Ms Allan stated that the incident on 2 July 2020 negatively affected her psychological well-being. The incident triggered her depressive anxiety disorder for which she was being treated at the time. She finds herself constantly anxious and she self-isolates. She feels depressed and worried. Prior to the incident, she was an outgoing and healthy person.
Ms Allan stated that she had attempted to seek employment elsewhere following the incident but that, due to the immense pain in her left knee, right wrist and lower back, she was unable to do so. She also experienced an ongoing fear that she would be approached or witness an individual with a violent or aggressive character.
Ms Allan stated that she currently had a limited capacity to work. She had attempted to seek employment at various retail stores following the incident but was rejected due to her injuries. She expressed the belief that she would be unable to work in any capacity in the foreseeable future.
The treating medical evidence
On 8 October 2020, Dr Michael Seymour, general practitioner, of Gardens Medical Group referred Ms Allan to Dr Prue Keith, orthopaedic surgeon, for an opinion and management of the left knee injury.[5] In his referral letter to Dr Keith, Dr Seymour provided a history of injury that was consistent with the evidence. He noted that Ms Allan had undergone an X-ray at Albury Hospital that excluded a fracture of her left knee. He also noted that he had organised an MRI scan of the left knee which demonstrated bone marrow oedema and a small joint effusion as well as patellofemoral osteoarthritis. Dr Seymour suspected that the injury unmasked Ms Allan’s osteoarthritis and that was the reason it was taking so long to settle down.
[5] AEA at page 41.
On 12 October 2020, Ms Allan underwent a left knee X-ray on the referral of Dr Seymour. The radiologist reported that there was early degenerative change in the left knee.[6]
[6] AEA at page 42
Dr Keith reported to Dr Seymour that Ms Allan had consulted her on 15 October 2020.[7] Dr Keith reported a history that was consistent with the evidence. She opined that the left patellofemoral joint was grossly abnormal, arthritic and laterally luxated with a long lateral facet. Dr Keith recommended that Ms Allan proceed with a platelet rich plasma (PRP) injection and that Ms Allan report back to her six weeks after the PRP injection.
[7] AEA at pages 32-33.
On 8 December 2020, Ms Allan underwent an ultrasound guided injection of 80mg of Depromedrol and 7ml of Xylocaine into her left knee without complications.[8]
[8] AEA at pages 33-34.
On 25 February 2021, Dr Keith reported to Dr Seymour that Ms Allan continued to complain of left knee pain and that conservative management had effectively failed, including the gamut of physiotherapy and injections (cortisone and PRP). Dr Keith recommended some contemporary radiology, including X-ray and MRI.[9]
[9] AEA at pages 34-35.
On 22 March 2021, Ms Allen underwent an MRI scan of her left knee. The findings were in keeping with marked osteoarthritis involving the patellofemoral compartment.[10]
[10] AEA at pages 35-36.
On 2 April 2021, Dr Keith reported to Ms Allan that the recent medical imaging demonstrated severe degenerative changes through the patellofemoral articulation and that, in her opinion, the changes were too significant to consider any form of arthroscopic procedure or tendon/tuberosity transfer. Dr Keith opined that Ms Allan was heading towards an arthroplasty or joint replacement option. She arranged for Ms Allan to attend an orthopaedic unit clinical meeting to present and discuss her case on 14 May 2021.[11]
[11] AEA at pages 36-37.
On 16 May 2021, Dr Keith reported to Ms Allan on the outcome of the orthopaedic clinical meeting on 14 May 2021. Amongst the orthopaedic surgeons involved, there was no support for tibial tubercle osteotomy surgery because it was felt that it would be unsuccessful and would make subsequent surgeries more difficult. There was considerable discussion around arthroplasty surgery, that is, joint replacement. In this case, a patellofemoral replacement (partial joint replacement) versus a total knee replacement. It seemed logical to offer Ms Allan a patellofemoral joint replacement, acknowledging that, at some point, she would require revision surgery to a total knee replacement. Dr Keith concluded that, when she looked at the entire scenario and Ms Allan’s problem, it was likely that a partial joint replacement was her best option at this stage despite the fact that there was a lot of debate about it being the best option.[12]
[12] AEA at pages 38-39.
On 17 August 2021, Ms Allan underwent a left patellofemoral knee replacement performed by Dr Keith at Wangaratta Private Hospital.[13]
[13] AEA at pages 49-50.
On 27 September 2021, Ms Allan underwent an X-ray of her left knee. The radiologist reported evidence of a patellofemoral joint space replacement with preservation of the patella and noted that the position of the prosthesis was satisfactory.[14]
[14] AEA at page 51.
On 30 September 2021, Dr Keith reported to Dr Seymour that Ms Allan had ongoing physiotherapy and that she was doing very well overall with good pain relief. There was some discomfort and some mild expected anterior medial swelling. Ms Allan’s gait pattern was excellent and she was walking unassisted and without antalgia. Dr Keith discharged Ms Allan from her care.[15]
[15] AEA at pages 51-52.
On 13 May 2022, Ms Allan underwent a left knee X-ray on the referral of Dr Seymour. The radiologist reported that the left knee prosthesis appeared uncomplicated and that alignment was satisfactory. The medial and lateral joint compartments were preserved; early osteophyte formation was seen around the intercondylar notch; and there was a small joint effusion or synovitis in the suprapatellar bursa.[16]
[16] AEA at pages 52-53.
On 17 August 2022, Dr Seymour issued Ms Allan with a certificate of capacity.[17] In the certificate, Dr Seymour provided a diagnosis of work-related injuries that included a soft tissue injury to the left knee; a soft tissue injury to the right lower back; an exacerbation of a complex post-traumatic stress disorder; an inflamed and degenerative right wrist scaphotrapeziotrapezoid (STT) joint, mild tenosynovitis of compartment 2, extensor carpi radialis longus and brevis tendons and mild flexor carpi radialis para tendinosis; right hip pain; right knee pain; and right heel pain.
[17] AEA at pages 56-58.
In respect of Ms Allan’s capacity for activities, Dr Seymour nominated a lifting/carrying capacity of less than 5kg; a sitting tolerance as tolerated; a standing tolerance of 10 minutes followed by a break; a pushing and pulling ability of less than 5kg; avoidance of bending, twisting, squatting; and a driving ability as tolerated. Dr Seymour noted that Ms Allan was not to return to her pre-injury duties and that she would benefit from retraining. He recommended sedentary work/light duties at the present time.
In respect of Ms Allan’s capacity for work, Dr Seymour certified that she had capacity for some type of work from 17 August 2022 to 21 September 2022 at four hours per day, two days per week.
On 21 September 2022, Dr Seymour referred Ms Allan to Dr James Churchill, orthopaedic surgeon, for an opinion and management of her chronic right wrist pain in respect of a fall that occurred in early October 2021, when her knee gave way. Dr Seymour reported in his letter of referral that Ms Allan’s right wrist and hand pain had progressively worsened.[18]
[18] AEA at page 30.
On 21 September 2022, Dr Seymour issued Ms Allan with a certificate of capacity.[19] In respect of Ms Allan’s capacity for activities, Dr Seymour repeated the same restrictions referred to in his certificate dated 17 August 2022. In respect of Ms Allan’s capacity for work, Dr Seymour certified that she had capacity for some type of work from 21 September 2022 to 19 October 2022 at four hours per day, two days per week.
[19] AEA at pages 59-61.
On 19 October 2022, Dr Seymour issued Ms Allan with a certificate of capacity.[20] In respect of Ms Allan’s capacity for activities, Dr Seymour nominated a lifting/carrying capacity of less than 5kg; a sitting tolerance as tolerated; a standing tolerance of five minutes; a pushing and pulling ability of less than 5kg; avoidance of bending, twisting, squatting; and a driving ability as tolerated. Dr Seymour noted that Ms Allan was not to return to her pre-injury duties and that she would benefit from retraining. He recommended sedentary work/light duties at the present time. In respect of Ms Allan’s capacity for work, Dr Seymour certified that she had capacity for some type of work from 19 October 2022 to 17 November 2022 at four hours per day, two days per week.
[20] AEA at pages 62-64.
On 17 November 2022, Dr Seymour issued Ms Allan with a certificate of capacity.[21] In respect of Ms Allan’s capacity for activities, Dr Seymour repeated the same restrictions referred to in his certificate dated 19 October 2022. In respect of Ms Allan’s capacity for work, Dr Seymour certified that she had capacity for some type of work from 17 November 2022 to 14 December 2022 at four hours per day, two days per week.
[21] AEA at pages 65-67.
On 14 December 2022, Dr Seymour issued Ms Allan with a certificate of capacity.[22] In respect of Ms Allan’s capacity for activities, Dr Seymour repeated the same restrictions referred to in his certificate dated 19 October 2022. In respect of Ms Allan’s capacity for work, Dr Seymour certified that she had capacity for some type of work from 14 December 2022 to 13 January 2023 at four hours per day, two days per week.
[22] AEA at pages 68-69.
On 13 January 2023, Dr Seymour issued Ms Allan with a certificate of capacity.[23] In respect of Ms Allan’s capacity for activities, Dr Seymour repeated the same restrictions referred to in his certificate dated 19 October 2022. In respect of Ms Allan’s capacity for work, Dr Seymour certified that she had no current work capacity from 13 January 2023 to 10 February 2023. In respect of factors affecting her recovery Dr Seymour cited wrist pain and deteriorating mental health.
[23] AEA at pages 70-72.
On 10 February 2023, Dr Seymour issued Ms Allan with a certificate of capacity.[24] In respect of Ms Allan’s capacity for activities, Dr Seymour repeated the same restrictions referred to in his certificate dated 19 October 2022. In respect of Ms Allan’s capacity for work, Dr Seymour certified that she had no current work capacity from 10 February 2023 to 10 March 2023. In respect of factors affecting her recovery Dr Seymour cited wrist pain and deteriorating mental health.
The vocational assessments
[24] AEA at pages 73-75.
Pinnacle Rehab Pty Limited: 2 March 2022
In evidence, there is a document authored by Ms Taylor Kirkwood on behalf of Pinnacle Rehab Pty Limited dated 17 February 2022 and commissioned by EML entitled “Vocational Options – Medical Review / Approval”.[25] The document is addressed to Ms Allan’s general practitioner, Dr Seymour, requiring the latter’s written response to enable Pinnacle Rehab Pty Limited to provide Ms Allan with timely assistance with her return to work goals.
[25] Reply at pages 38-42.
Ms Kirkwood stated that the following vocational options had been identified for Ms Allan:
(a) teachers’ aid;
(b) general receptionist, and
(c) sales assistant.
Ms Kirkwood sought Dr Seymour’s assistance and input to confirm that the identified vocational options were suitable.
Ms Kirkwood identified in some detail the duties and maximum psychological and physical demands of each of the three vocational options.
On 2 March 2022, Dr Seymour and Ms Allan confirmed that they had discussed the three vocational goals and agreed with the comments as to their suitability by each signing the last page of the document.
Pinnacle Rehab Pty Limited: 20 April 2022
In evidence, there is a vocational assessment report in respect of Ms Allan by Pinnacle Rehab Pty Limited dated 20 April 2022. The report was commissioned by EML.[26]
[26] Reply at pages 1-37.
The report referred to Ms Allan’s diagnosis as a soft tissue injury to the left knee and right lower back. The report also noted that Ms Allan was now being treated for a secondary psychological injury and that her post-traumatic stress disorder had been accepted as compensable in respect of the claim. The report incorrectly referred to Ms Allan’s right wrist injury as being non-compensable and identified it as a barrier impacting her lifting ability.
The report recorded details of Ms Allan’s previous employment history which included that of a support worker, general assistant, sales assistant, food services assistant, housekeeper, team leader and room assistant.
The report recorded that Ms Allan completed year 11 at high school in 1987 and successfully completed a Certificate III in Community Service in 2001 and Certificate IV in Disability Services in 2004/2005.
The report stated that Dr Seymour had certified Ms Allan with capacity for some form of employment from 27 April 2022 to 25 May 2022 with the following restrictions:
(a) five hours per day, four days per week;
(b) lifting/carrying capacity: 10kg waist to chest, periodically and lift/squat thigh to chest level, infrequently;
(c) sitting tolerance: 60 minutes, then break;
(d) standing tolerance: 60 minutes, then break;
(e) pushing/pulling ability: 20kg, infrequently;
(f) bending/twisting/squatting ability: cannot work at ground level, avoid twisting her knee, and
(g) driving ability: as tolerated.
The report identified the suitable vocational options for Ms Allan as being a teachers’ aid, general receptionist and a sales assistant.
The report identified in some detail the duties and maximum psychological and physical demands of each of the three vocational options.
The report stated that the potential earning capacity for each of the three vocational options were as follows:
(a) teachers’ aid: $1,094 per week based on 40 hours per week;
(b) general receptionist: $982 per week based on 40 hours per week, and
(c) sales assistant: $961 per week based on 40 hours per week.
Pinnacle Rehab Pty Limited contacted three prospective employers who were seeking to employ staff in respect of each suitable vocational option. After discussing the available positions with each prospective employer, Pinnacle Rehab Pty Limited considered Ms Allan a suitable candidate for each of the roles on offer.
Pinnacle Rehab Pty Limited recommended that, prior to commencing a labour market analysis, Ms Allan’s alleged non-compensable right-hand injury ought to be addressed and an appropriate treatment plan developed as it may impact her job seeking ability and success in finding employment. It further recommended that Ms Allan’s current symptoms of post-traumatic stress disorder needed to be addressed with a treatment plan from her psychologist.
On completion of the labour market analysis, Pinnacle Rehab Pty Limited recommended the following:
(a) Ms Allan commence a job search education program with a view to developing her independent job-seeking skills and confidence in seeking new employment;
(b) once Ms Allan has been determined as an independent job-seeker, she engage in an ongoing and tailored job-seeking program focused on one-on-one job-seeking sessions, reverse marketing and job log monitoring;
(c) a work trial be sourced for Ms Allan within the suitable three vocational options recommended;
(d) a return to work program be developed for Ms Allan;
(e) Pinnacle Rehab Pty Limited attend regular medical case conferences with Dr Seymour and Ms Allan to review capacity and functional progress and facilitate capacity upgrades as appropriate, and
(f) Pinnacle Rehab Pty Limited complete regular rehabilitation counselling sessions with Ms Allan to address any concerns or barriers to return to work and ensure she is supported in this process.
Dr Danny Tang: 26 June 2022
In evidence, there is a report by Dr Danny Tang, injury management consultant, addressed to icare dated 26 June 2022.[27]
[27] Reply at pages 43-46.
Dr Tang’s report was in the form of a file review relating to Ms Allan. Dr Tang identified the documents he had reviewed and then set out the details of his discussion with Dr Seymour about Ms Allan’s medical progress.
Dr Tang reported that his discussion with Dr Seymour took place on 23 June 2022. The discussion may be summarised as follows:
(a) Dr Seymour advised that Ms Allan was progressing well following her knee surgery and that she may have reached maximum medical improvement post-operatively;
(b) Dr Seymour advised, that prior to the knee surgery, Ms Allan was in a significant amount of pain but that, post-operatively she was much improved;
(c) Dr Seymour advised that Ms Allan continued to have issues with prolonged standing and believed that it was unlikely to improve in the long-term;
(d) Dr Seymour advised that Dr Keith believed that no further surgical intervention was required for Ms Allan’s knee;
(e) Dr Seymour advised that the progress of Ms Allan’s right wrist was disappointing as the de Quervain’s tenosynovitis had not improved following cortisone injections, in that, there was minimal improvement and the pain had actually worsened;
(f) Dr Seymour advised that Ms Allan’s post-traumatic stress disorder remained capricious despite regular consultations with her psychologist and the ingestion of antidepressant medication and medication to assist with sleep;
(g) Dr Seymour advised that Ms Allan now had extreme fears about working in a violent workplace and believed that if she were able to work in a safe workplace, then she would be able to adapt and cope;
(h) Dr Seymour was not prepared to increase Ms Allan’s work capacity from five hours per day, four days per week with restrictions at present because he felt that it may be too much for her;
(i) Dr Seymour advised that Ms Allan required, at least, a work trial of five hours per day, four days per week with restrictions before he could consider any increase in work capacity;
(j) Dr Seymour advised that he was unsure as to when Ms Allan may be able to return to pre-injury hours with restrictions, and
(k) Dr Seymour advised that Ms Allan would have the capacity to work in the vocational options suggested by Pinnacle Rehab Pty Limited.
Dr Tang reported that the outcome of his discussion with Dr Seymour was negative, in that, Dr Seymour was unable to provide timeframes for Ms Allan to return to work in her pre-injury duty hours with restrictions.
The forensic medical evidence
Dr James Bodel: 1 November 2022
On 1 November 2022, Ms Allan consulted Dr James Bodel, orthopaedic surgeon, at the request of her lawyers. In evidence, there is a report by Dr Bodel dated 1 November 2022.[28] I will now refer to the relevant parts of that report.
[28] AEA at pages 22-29.
Dr Bodel took a history from Ms Allan that was consistent with the evidence.
Dr Bodel summarised Ms Allan’s injuries resulting from the incident on 2 July 2020 as an injury to the left knee; an injury to the lower back; and a consequential injury to the right wrist and hand following a fall when her left knee gave way.
Dr Bodel recorded that Ms Allan’s current complaints were of pain in the left knee, pain in the lower part of the back and pain in the right foot, right knee and bilateral wrists.
On examination of Ms Allan’s right wrist, Dr Bodel noted that she complained of a sharp stabbing pain in the right wrist and he observed a restricted range of wrist movement, which he recorded in the body of his report. Dr Bodel observed good grip strength; no neurological abnormality in the upper limbs; and no evidence of median or ulnar nerve pathology.
On examination of Ms Allan’s back and right hip, Dr Bodel noted that she complained of pain in the lower part of the back and over the top of the right buttock and hip. Dr Bodel observed a restricted range of lateral bending to the right; asymmetry of back movement; and a slight restriction of hip movement on the right side.
On examination of Ms Allan’s knees, Dr Bodel observed severe retropatellar crepitus in the region of the left knee; lacking 5° of knee extension; knee flexion of 120° on the left and 130° on the right; stable ligaments in both knees; and some mild patella maltracking laterally in the left knee.
Dr Bodel referred to the very well researched and compiled reports of Dr Keith, who had appropriately taken Ms Allan to orthopaedic clinical meetings to discuss the treatment options for a person with severe painful patellofemoral osteoarthritis in the setting of an otherwise reasonably well-preserved knee.
Dr Bodel opined that Ms Allan had sustained a work-related injury to her left knee when she was assaulted by a client at work, kicked in the knee and pushed against a wall, injuring her back. Ms Allan had also sustained a consequential injury to her right wrist and experienced pain in her right hip.
Dr Bodel opined that Ms Allan did not have the capacity to continue with her pre-injury work in disability services. Further, he opined that Ms Allan was totally unfit for work at present and was likely to remain so indefinitely.
In respect of Ms Allan’s restrictions on her capacity for work on the open labour market, Dr Bodel opined:
“The main restrictions on this claimant’s capacity is that she will struggle to find any form of work but particularly on the open labour market in the type of work that she was doing. She is essentially totally and permanently incapacitated for work for which she has appropriate levels of education, physical fitness, training and experience. With a weight reduction program and a successful total knee replacement at a later stage, she may be able to return to some lighter duty form of work.”[29]
[29] AEA at page 28.
Dr Bodel opined that, in the longer term, a total left knee replacement would be reasonably necessary treatment for Ms Allan.
Dr Bodel opined that Ms Allan had a very guarded prognosis.
SUBMISSIONS
The parties provided written submissions following the preliminary conference. As the parties provided comprehensive written submissions that can be found on the Commission’s portal, I will only outline their respective submissions on the issue for determination in these reasons.
Livermore & Ritchie’s submissions
Livermore & Ritchie provided written submissions dated 28 April 2023.
On 26 July 2022, EML issued a work capacity decision determining that Ms Allan could work in suitable employment as a sales assistant earning $540.20 per week under s 43(1) of the 1987 Act. The effect of the work capacity decision was to reduce Ms Allan’s ongoing weekly payments to $323.80 from 7 November 2022 under s 37 of the 1987 Act.
Livermore & Ritchie referred to s 43 of the 1987 Act.
The certificates of capacity issued by Dr Seymour at the time of the work capacity decision certified Ms Allan with capacity for employment for five hours per day, four days per week. I note that no such certificates were in evidence but I also note that Ms Allan did not dispute that this was the case.
Having regard to the evidence at the time the work capacity decision was made, Ms Allan had the capacity to work 20 hours per week under s 43 of the 1987 Act.
The reasons for Dr Seymour downgrading Ms Allan’s work capacity are unclear. Dr Seymour did not provide any reasons for the downgrade in the certificates of capacity issued from 17 August 2022, nor did he provide a report commenting on the same. Further, the certificates pertaining to the downgrade referred to several body systems for which liability had been disputed. Dr Seymour provided no details as to which body systems were responsible for the alleged downgrade in Ms Allan’s capacity for work. In this regard, it was unclear as to which injuries, alleged or otherwise, were responsible for the claimed downgrade in the capacity for work.
On 1 November 2022, Dr Bodel considered Ms Allan totally unfit for employment. Dr Bodel’s opinion was inconsistent with Dr Seymour’s certificates of capacity and was based on one examination only. Further, Dr Bodel provided no reasons for his conclusion that Ms Allan was totally unfit for employment. He referred to Ms Allan’s levels of education, physical fitness, training and experience but did not record a history of the same. Accordingly, there was no basis for his conclusions on capacity.
Little weight should be given to Ms Allan’s medical evidence on the issue of capacity for the reasons stated above.
In the absence of any objective medical evidence addressing the reasons for Ms Allen’s downgrade in her capacity for work, her contention that she had a work capacity of eight hours per week due to her work-related injury, must fail.
In respect of the suitability of the vocational options of teachers’ aid, general receptionist and sales assistant identified by Clinical Rehab Pty Limited, Livermore & Ritchie referred to the definition of suitable employment in s 32A of the 1987 Act.
All three vocational options were approved by Dr Seymour on 2 March 2023.
On 26 June 2022, Dr Tang confirmed that all options were medically appropriate.
EML determined the most suitable vocational option was that of a sales assistant because functionally, the role would not have any duties that would exceed Ms Allan’s capacity.
Ms Allan stated that she attempted to seek employment at various retail stores following the subject incident but was rejected due to her injuries. She provided no evidence to verify these assertions. Ms Allan’s evidence was contrary to that of Pinnacle Rehab Pty Limited. Pinnacle Rehab Pty Limited reported that the employers contacted by it noted that Ms Allan would be considered as a suitable candidate for the role of sales assistant based on her customer service skills, her communication skills, her ability to follow instructions and work as part of a team and her demonstrated adaptability. Each of the contacted employers also confirmed that her functional restrictions would not be a barrier to her ability to conduct the role of a sales assistant.
Ms Allan provided no medical or vocational evidence to challenge the suitability of the roles of teachers’ aid, general receptionist and sales assistant and in the absence of such evidence and having regard to the Pinnacle Rehab Pty Limited vocational assessment report, it follows that the role of a sales assistant is considered as suitable employment for the purposes of s 32A of the 1987 Act.
Livermore & Ritchie submitted that the Commission should enter an interim payment direction in favour of them on the basis that Ms Allan is capable of earning at least $540.20 per week pursuant to s 43(1)(a) of the 1987 Act, thereby reducing her weekly payments from 7 November 2022 to 14 January 2023 under s 37 of the 1987 Act.
Somewhat surprisingly, certification was sought for a 30% uplift in respect of legal costs on the basis of complexity in accordance with the relevant item, table and schedule of the Workers Compensation Regulation 2016.
Ms Allan’s submissions
Ms Allan provided written submissions dated 4 May 2023.
On 12 August 2021, Ms Allan underwent a partial left knee replacement performed by Dr Keith. She underwent extensive treatment in the form of physiotherapy and pain relieving medication prior to and following the surgical procedure.
Ms Allan’s evidence at [20] of her statement dated 7 March 2023 was that it was her left knee, lower back and depression that stopped her from working.
There was no evidence that any of the prospective employers referred to in the Pinnacle Rehab Pty Limited report spoke to Ms Allan or made their own assessment of her or the medical evidence supporting a return to work.
Dr Seymour had given no reason for certifying Ms Allan fit for 20 hours work per week, other than to tell Dr Tang that such an assessment was subject to a work trial. Dr Seymour also confirmed that it was the left knee, lower back and post-traumatic stress disorder that were the reasons that Ms Allan could not work. The assessment of an ability to work for 20 hours per week was subject to review. Dr Seymour reviewed Ms Allan on 17 August 2022 and downgraded her ability to earn after his clinical examination of her and his assessment of her ability to work at that time.
The assertion that other consequential injuries may be part of Dr Seymour’s assessment after 17 August 2022 does not hold water as all the certificates of capacity, before and after 17 August 2022, listed the same injuries. Clearly, Dr Seymour referred to the left knee, lower back and post-traumatic stress disorder as being responsible for Ms Allan’s inability to work.
Contrary to Livermore & Ritchie’s submissions, Dr Bodel provided a reasoned opinion as to why Ms Allan did not have the capacity to work at the time of his examination. Dr Bodel clearly stated that she may be able to do sedentary light work if her total left knee replacement in the future is successful and if she is retrained. At present, she has not been retrained.
It is conceded that, in the future when Ms Allan has reached optimal improvement of her left knee and she has been retrained, she may well be fit for some of the duties Livermore & Ritchie claim she is able to do. However, that was not the case in November 2022 on the evidence of Ms Allan, Dr Seymour and Dr Bodel.
In respect of Dr Tang’s file review, whilst it did assist in illuminating Dr Seymour’s view as it was expressed in the certificates of capacity, it was of little other use, nor should it carry any great deal of weight.
The Commission ought to find that Ms Allan had no capacity to work under ss 33 and 32A of the 1987 Act and that the work capacity decision of 26 July 2022 be set aside and that weekly benefits continue at the rate of $864 per week during the period in dispute.
Livermore & Ritchie’s submissions in reply
Livermore & Ritchie provided written submissions in reply dated 15 May 2023.
There is no dispute that, until 17 August 2022, Ms Allan had been certified with a capacity for work for five hours per day, four days per week with restrictions referred to in the evidence.
On 17 August 2022, Dr Seymour issued a certificate of capacity that downgraded Ms Allan’s capacity for work to four hours per day, two days per week without any specified reasons.
The assertion that the conversation between Dr Tang and Dr Seymour as recorded in Dr Tang’s file review provided sufficient reasons for the downgrade is refuted. Although Dr Seymour referred to a work trial at 20 hours per week, Ms Allan was certified with this capacity and further, was able to work in this capacity from 20 July 2022 to 17 August 2022, being a period of about four weeks. Ms Allan provided no medical evidence to demonstrate that she was incapable of or struggled undertaking 20 hours of employment per week in those four weeks.
It cannot be said that comments made by Dr Seymour prior to the downgrade amounted to reasoning for the downgrade, particularly in circumstances where Ms Allan was working her certified hours for four weeks without complaint and proceeded to provide a certificate of capacity downgrading her capacity without any specified reason for the same.
The certificates of capacity pertaining to the downgrade in work capacity referred to several body systems for which liability had been disputed. Dr Seymour provided no details as to which body systems were responsible for the alleged downgrade in capacity.
Dr Tang’s file review report dated 26 June 2022 was provided prior to the downgrade by Dr Seymour on 17 August 2022. It follows that the conversations between Dr Tang and Dr Seymour took place prior to the downgrade. Those conversations did not amount to a reasoning for the downgrade being related to the compensable injuries only and no such details were provided on the certificates of capacity noting the downgrade.
Livermore & Ritchie repeated its submissions in respect of the evidence of Dr Bodel and added that, it cannot be that Ms Allan relies on parts of Dr Seymour’s opinion and seeks to reject the other parts in favour of Dr Bodel. Dr Bodel’s conclusions on work capacity are devoid of any basis.
As Ms Allan relies on the comments in respect of the discussion between Dr Tang and Dr Seymour, it is wholly inconsistent that she now considers Dr Tang’s report of little use and little weight.
In response to my request to provide submissions as to the Commission’s jurisdiction in respect of legal costs in this matter, Livermore & Ritchie provided lengthy written submissions for which there is no need to go into detail now for the reasons provided later.
FINDINGS AND REASONS
The legislation and legal principles
Section 43(1) of the 1987 Act identifies the following decisions of an insurer as work capacity decisions:
(a) a decision about a worker’s current work capacity;
(b) a decision about what constitutes suitable employment for a worker;
(c) a decision about the amount an injured worker is able to earn in suitable employment;
(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings;
(e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment, and
(f) any other decision of an insurer that affects the worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a) to (e) above.
There is no dispute in these proceedings that EML’s decision dated 26 July 2022 was a work capacity decision.
Amendments to the 1987 Act in 2018 gave the Commission power to review work capacity decisions.
Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under the Act to the injured worker shall include weekly payments during the period of incapacity.
An assessment of Ms Allan’s capacity involves a consideration of whether she has no current work capacity or a current work capacity as defined in s 32A of the 1987 Act.
Section 32A of the 1987 Act defines the relevant terms as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
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.”
Section 43 of the 1987 Act in existence prior to the 2012 amending Act and the authorities suggested that regard was to be had to “the realities of the labour market in which the employee was working or might reasonably be expected to work”.[30]
[30] Arnott's Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171.
Since the 2012 amending Act, it is clear that “total incapacity” differs from “no current work capacity”. “No current work capacity” requires a consideration of the worker’s capacity to undertake not only his or her pre-injury duties, but also suitable employment, irrespective of its availability. This was confirmed by Roche DP in Mid North Coast Local Health District v De Boer[31]and in Wollongong Nursing Home Pty Ltd v Dewar[32] (Dewar).
[31] Mid North Coast Local Health District v De Boer [2013] NSWWCCPD 41.
[32] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
In Dewar, Roche DP stated:
“… employment for which the worker is currently suited is determined ‘regardless of’ whether the work or employment is ‘available’ and regardless of whether it is ‘of a type or nature that is generally available in the employment market’. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is ‘suited’ for suitable employment.[33]
However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ … However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”[34]
[33] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [56].
[34] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 at [57]-[60].
Consideration and findings
If Ms Allan has no current work capacity as has been submitted by her legal representative, I must assess whether she was able to return to both her pre-injury duties and suitable employment during the period in question.
The medical evidence and vocational assessment report referred to above concluded that Ms Allan would have had no capacity for her pre-injury duties for the period claimed.
The certificates of capacity in evidence issued by Dr Seymour to Ms Allan dated
17 August 2022, 21 September 2022, 19 October 2022, 17 November 2022 and
14 December 2022 all certified that Ms Allan was not to return to her pre-injury duties and that she would benefit from retraining in another role.On 1 November 2022, Dr Bodel opined that Ms Allan did not have the capacity to continue with her pre-injury work in disability services.
The Pinnacle Rehab Pty Limited vocational assessment report dated 20 April 2022 accepted by implication that Ms Allan could not return to her pre-injury work in disability services by providing three other alleged suitable vocational options.
Accordingly, I find that Ms Allan had no capacity for her pre-injury duties between 7 November 2022 and 14 January 2023.
The next matter for consideration is whether Ms Allan was fit for suitable employment as defined in s 32A of the 1987 Act. This requires a consideration of the nature of the incapacity and the details provided in medical information, the worker’s age, education, skills and work experience, any return to work plan and any occupational rehabilitation services that have been provided, irrespective of whether the work is available to her or of a type or nature that is generally available in the employment market.
I accept Ms Allan as a witness of truth, who did her best to provide a history of her injuries, her treatment and her complaints of symptoms to her various treatment providers, the vocational assessors and Dr Bodel. The histories she provided of injury, treatment and complaints of symptoms were, in the main, consistent since the incident on 2 July 2020.
I am satisfied on the evidence before me and find that the accepted injuries to Ms Allan’s left knee, lower back, right wrist and the aggravation of her post-traumatic stress disorder have impacted her work capacity. I make no findings in respect of causation as to the disputed consequential right knee, right hip, right foot and right heel injuries as I was not required to do so.
On the available evidence, management and treatment have focused on Ms Allan’s left knee and right wrist. She came under the specialist care of Dr Keith in respect of her left knee, who opined that the left patellofemoral joint was grossly abnormal, arthritic and laterally luxated with a long lateral facet. On 17 August 2021, Ms Allan underwent a left patellofemoral knee replacement performed by Dr Keith. Despite the surgery, Ms Allan continues to complain of pain and symptoms in her left knee. On examination of Ms Allan’s left knee on 1 November 2022, Dr Bodel observed severe retropatellar crepitus in the region of the left knee; lacking 5° of knee extension; knee flexion of 120° on the left; and some mild patella maltracking laterally in the left knee.
Ms Allan came under the specialist care of Dr Churchill in respect of her right wrist. There is no report in evidence from Dr Churchill. However, in Dr Seymour’s referral letter to Dr Churchill, the former referred to chronic right wrist pain. In Dr Seymour’s certificates of capacity, he diagnosed an inflamed and degenerative right wrist STT joint, mild tenosynovitis of compartment 2, extensor carpi radialis longus and brevis tendons and mild flexor carpi radialis para tendinosis. On examination of Ms Allan’s right wrist on 1 November 2022, Dr Bodel noted her complaint of a stabbing pain and observed a restricted range of right wrist movement.
The certificates of capacity issued by Dr Seymour in evidence referred to right hip pain, right knee pain and right heel pain that were undergoing further investigation. The injury to Ms Allan’s lower back was referred to as soft tissue. On 1 November 2022, Dr Bodel observed a restricted range of lateral bending to the right; asymmetry of back movement; and a slight restriction of hip movement on the right side.
Without making any findings as to causation in respect of the right hip, the right knee and right heel, I accept Ms Allan’s evidence that she continues to suffer the symptoms referred to in [34] above. I accept that Ms Allan is right hand dominant and struggles to carry any weight in her right hand. I accept Ms Allan’s evidence that the incident on 2 July 2020 negatively affected her psychological well-being.
I accept Ms Allan’s evidence that she had attempted to seek employment elsewhere following the incident but that, due to the immense pain in her left knee, right wrist and lower back, she was unable to do so.
On 2 March 2022, Dr Seymour and Ms Allan confirmed that they had discussed the three identified vocational goals put forward by Pinnacle Rehab Pty Limited and agreed with the comments as to their suitability by each signing the last page of the Vocational Options – Medical Review / Approval document.
On 23 June 2022, amongst other things, Dr Seymour advised Dr Tang that Ms Allan’s post-operative left knee pain was much improved; she continued to have issues with prolonged standing, which was unlikely to improve in the long-term; the pain in her right wrist had actually worsened; her post-traumatic stress disorder remained capricious; she now had extreme fears about working in a violent workplace; she required, at least, a work trial of five hours per day, four days per week with restrictions before he could consider any increase in work capacity; and he was unsure as to when she may be able to return to pre-injury hours with restrictions.
The certificate of capacity issued by Dr Seymour to Ms Allan dated 17 August 2022 downgraded Ms Allan’s capacity for some type of work from 17 August 2022 to 21 September 2022 to four hours per day, two days per week with the restrictions referred to therein. In the certificates that followed on 21 September 2022, 19 October 2022, 17 November 2022 and 14 December 2022, Dr Seymour maintained the same work capacity of four hours per day, two days per week with, in the main, the same restrictions, namely, a lifting/carrying capacity of less than 5kg; a sitting tolerance as tolerated; a standing tolerance of five minutes; a pushing and pulling ability of less than 5kg; avoidance of bending, twisting, squatting; and a driving ability as tolerated.
It is clear from Dr Seymour’s referral letter to Dr Churchill on 21 September 2022 that Ms Allan’s right wrist and hand pain had progressively worsened and had become chronic. The vocational assessors at Pinnacle Rehab Pty Limited did not have the benefit of the knowledge of the worsening right wrist pain at the time of their assessment on 8 February 2022 and 20 April 2022, being the two dates recorded on their report. Further, the report referred to the right wrist injury as being non-compensable and identified it as a barrier impacting her lifting ability.
Pinnacle Rehab Pty Limited recommended that, prior to commencing a labour market analysis, Ms Allan’s alleged non-compensable right-hand injury ought to be addressed and an appropriate treatment plan developed as it may impact her job seeking ability and success in finding employment. It further recommended that Ms Allan’s current symptoms of post-traumatic stress disorder needed to be addressed with a treatment plan from her psychologist. There is no evidence that these recommendations were followed through prior to the issue of its report.
On 1 November 2022, Dr Bodel opined that Ms Allan was totally unfit for work at present and was likely to remain so indefinitely. Livermore & Ritchie provided no forensic specialist medical evidence in respect of Ms Allan’s work capacity and relied on the Pinnacle Rehab Pty Limited vocational assessment report.
EML determined that Ms Allan could work in suitable employment as a sales assistant on the basis of her then current certification by Dr Seymour of 20 hours per week.
Ms Allan is currently 53 years of age. Ms Allan completed year 11 at high school in 1987 and successfully completed a Certificate III in Community Service in 2001 and Certificate IV in Disability Services in 2004/2005. Ms Allan’s employment history included that of a support worker, general assistant, sales assistant, food services assistant, housekeeper, team leader and room assistant.
There was no evidence of any occupational rehabilitation services that were being or had been provided to Ms Allan.
Dr Tang, injury management consultant, simply adopted the conclusions in the vocational assessment report after his conversation with Dr Seymour, which he described as a negative outcome.
There is no evidence before me that Pinnacle Rehab Pty Limited implemented the first four items of its own recommendations following the completion of the labour market analysis in the vocational assessment report and summarised in [78] above.
I find that the vocational options of a teachers’ aid and a general receptionist are not employment for which Ms Allen is currently suited or was suited for between 7 November 2022 and 14 January 2023.
The physical and cognitive requirements of a teachers’ aid are described in the vocational assessment report.[35] I find that the following requirements are outside Ms Allan’s physical and psychological capability:
(a) frequently standing and walking around in the class;
(b) frequently sitting, kneeling, squatting or crouching at low desks whilst working alongside children;
(c) lifting, carrying and holding school equipment and small children;
(d) repetitive movement of the hands for the use of writing, drawing and computer operation;
(e) use of handheld objects/materials such as computers, photocopiers, printers, overhead projectors, writing and drawing materials, books, videos, and other audio-visual and recreational equipment, and
(f) mental skills in respect of communication, practical, creative and organisational skills.
[35] Reply at page 14.
The physical and cognitive requirements of a general receptionist are described in the vocational assessment report.[36] I find that the following requirements are outside Ms Allan’s physical and psychological capability:
(a) constantly sitting at a workstation carrying out a variety of both manual and computerised data entry and word processing tasks and general office duties;
(b) occasionally stand and walk about the office;
(c) repetitive arm, hand and finger movements for data entry and word processing tasks;
(d) use of handheld objects such as pens, calculators, staplers and telephones occasionally to frequently;
(e) operating printers, copiers and a range of other office equipment;
(f) refilling paper trays and ink supplies, and
(g) mental skills that include recording, organisation and communication.
[36] Reply at page 21.
The physical and cognitive requirements of a sales assistant are described in the vocational assessment report.[37] I find that the following requirements are outside Ms Allan’s physical and psychological capability:
(a) frequently standing at sales counters or walking about the establishment to assist customers and locate merchandise;
(b) manually or electronically entering customer purchases into tills, receive cash, cheques, eftpos and credit card payments and processing of the same;
(c) occasional stretching and/or twisting movements when reaching up or down to shelves;
(d) bending, squatting or crouching for lifting products;
(e) repetitive hand and finger movements when operating computers, electronic tills and pricing guns;
(f) use of office handheld equipment such as pens or calculators, and
(g) mental skills involving communication, recording and calculating.
[37] Reply at page 27-28.
I am not satisfied, for the reasons stated above, that the vocational options and those prospective employers within those options who were approached by Pinnacle Rehab Pty Limited, was employment for which Ms Allan is currently suited or was suited between 7 November 2022 and 14 January 2023.
I find that Ms Allan was not physically and psychologically capable of performing the duties referred to in the three vocational options and the prospective employment providers referred to in the vocational assessment report having regard, in particular, to the ongoing symptoms and restrictions in her left knee, her right wrist and her lower back as a result of the incident on 2 July 2020.
I reject Livermore & Ritchie’s criticism of Dr Bodel. It is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd[38] (Paric); Makita (Australia) Pty Ltd v Sprowles[39] (Makita); South Western Sydney Area Health Service v Edmonds[40] (Edmonds); and Hancock v East Coast Timbers Products Pty Ltd[41] (Hancock); that there must be a “fair climate” upon which a doctor can base an opinion. Dr Bodel took a detailed history, reviewed the documentation provided to him and conducted an examination. Doctors, in expressing an opinion, rely on more than histories, the results of investigations and their training and expertise. Often, they use their experience and medical intuition as well, and when they arrive at an opinion it cannot always be elaborated and explained at length. Such a common sense approach also leads to the view that Dr Bodel’s opinion is a satisfactory one and to my mind, it is expressed as much more than an ipse dixit (an assertion without proof).
[38] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.
[39] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.
[40] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.
[41] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.
I prefer the evidence of Dr Bodel, who is an experienced orthopaedic surgeon, in respect of the issue of Ms Allan’s work capacity over Dr Seymour’s agreement that the vocational options proposed by Pinnacle Rehab Pty Limited, namely, teachers’ aid, general receptionist and sales assistant were suitable for Ms Allan. The Vocational Options – Medical Review / Approval document signed by Ms Allan and Dr Seymour on 2 March 2022 contained a briefer description of the duties and maximum psychological and physical demands of each vocational option. Certainly, neither had the opportunity to read the detailed final vocational assessment report at the time they put their signatures to the document dated 2 March 2022.
I find that Ms Allan had no current work capacity during the period in dispute, namely, 7 November 2022 to 14 January 2023 within the meaning of s 32A of the 1987 Act. Accordingly, she is entitled to weekly payments of compensation during that period under s 37(1) of the 1987 Act.
Accordingly, the work capacity decision dated 26 July 2022 is set aside and I award Ms Allan weekly payments of compensation under s 37(1) of the 1987 Act calculated as follows:
(a) agreed PIAWE at the date of injury: $1,080, and
(b) PIAWE of $1,080 x 80% = $864 as indexed under s 82A of the 1987 Act per week from 7 November 2022 to 14 January 2023.
Livermore & Ritchie’s submission that the Commission has jurisdiction in respect of legal costs in this matter is misconceived.
As a result of the amendments effected by the 2012 amending Act, the Commission no longer has the power to order the payment of costs in proceedings that commenced on or after 3 April 2013. Costs may be awarded in respect of matters commenced prior to that date. Jurisdiction to award costs is also retained in proceedings involving injury to an exempt worker (coal miners, police officers, firefighters and paramedics). This is due to the operation of cls 25 and 26 of Sch 6 Pt 19H to the 1987 Act, which provide that the 1987 and 1998 Acts apply in respect of such an injury as if the amendments made by the 2012 amending Act had not been enacted.
These proceedings were commenced after 3 April 2013 and Ms Allan was not an exempt worker. Accordingly, the Commission no longer has the power to order the payment of costs in such proceedings and I decline to make the certification requested by Livermore & Ritchie.
CONCLUSION
My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.
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