Bailey v Staff Australia Payroll Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bailey v Staff Australia Payroll Services Pty Ltd [2024] NSWPIC 10
APPLICANT:	Dorren (Doreen) Bailey
RESPONDENT:	Staff Australia Payroll Services Pty Ltd
MEMBER:	Diana Benk
DATE OF DECISION:	9 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; consideration of ‘current work capacity’ under clause 9 of schedule 3 and ‘suitable employment’ under section 32A; Wollongong Nursing Home Pty Limited v Dewar considered; Held – applicant sustained an injury arising out of or in the course of her employment with the respondent; applicant has no current work capacity; award for the applicant pursuant to section 37.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant has had no current work capacity since 25 November 2022. 2. That the pre-injury average weekly earnings figure (PIAWE) is $893.84 3. That the respondent is to pay weekly compensation to the applicant pursuant to s 37 of the Workers Compensation Act 1987 (80% of the PIAWE) as indexed from 26 November 2022.

STATEMENT OF REASONS

BACKGROUND

Ms Doreen Bailey (the applicant) sustained injury to her lumbar spine in the course of her employment on 14 June 2021. Staff Australia Pty Ltd (the respondent) accepted liability for weekly compensation and treatment expenses.
Liability was subsequently denied on 25 November 2022 on the basis of a medico-legal report of Dr Sheehy who opined any workplace aggravation had ceased and ongoing incapacity was due to non work related factors.
An Application to Resolve a Dispute (ARD) was then filed in the Personal Injury Commission (Commission). The matter underwent the usual case management pathway, ultimately proceeding to arbitration on 16 November 2023 following impasse at conciliation. The applicant was represented by Mr Hickey of Counsel instructed by Ms Panju. The respondent was represented by Mr Gaitanos of Counsel instructed by Ms Zreika. An insurer representative was present.

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:
(a) whether the aggravation of the underlying disease has ceased, and
(b) if not, the extent of incapacity arising therefrom.
The law relevant to this application is found in the Workers Compensation Act 1987 (the Act).

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed 27 October 2023 and 8 November 2023 (AALD).

Oral evidence

There was no oral evidence nor cross examination.

Applicant’s evidence

In her statement dated 11 September 2023 the applicant confirmed she was asymptomatic prior to her lifting incident as a warehouse assistant on 14 June 2021. The statement confirms her duties were predominantly manual where she was required to manipulate weights exceeding 120kg at times.
The statement provides the undisputed history that the company doctor certified her unfit for a period of two months. Return to work on restricted duties failed after six shifts due to an aggravation in symptoms.
The statement confirms sitting and standing are limited to no more than 30-45 minutes and walking to 15 minutes. Lifting, pushing and pulling are restricted to 10kg.
As to treatment, the statement recounts the extensive physiotherapy regime, massage, L3/4 cortisone injections, local anaesthetic blocks and a variety of natural therapies with a preference to avoid medication to ensure she remains alert to attend to her son’s special needs.
In relation to the impact of the injury on activities of daily living, the applicant stated that she was very active prior to the injury and now struggles to undertake domestic chores but attends to them in a self-paced fashion having made various modifications. Vacuuming, mopping and laundry is now done in stages. A new vacuum cleaner has been purchased as has a clothes horse to avoid hanging washing on the line. Modifications have been done to the home. The immobility has resulted in a 25kg weight gain.
An additional statement confirms the change in treating doctor occurred as the applicant opted to be treated closer to home, as the 45 minute drive to see the company doctor aggravated back symptoms.

Medical evidence

The applicant has been treated by Dr Darwish, (neurosurgeon), Dr Davies (pain physician), Dr Karime and Dr Chiwara (general practitioners). Dr Bentivoglio (neurosurgeon) was qualified.

Dr Balsam Darwish

In a report dated 11 September 2023,[1] Dr Darwish summarises the outcome of his assessment and management diagnosing symptoms arising from a degenerative condition aggravated by the nature of her employment and the workplace injury. He reported ongoing incapacity continues from the impact of the workplace injury; prognosis is guarded suggesting restrictions on lifting more than 5kg, no excessive bending and twisting, and no standing and sitting for more than one hour at a time. His report is silent on the amount of hours that could be worked on a weekly basis.
[1] Folio 39 ARD.
Serial reports following assessment nominate recommendations for management, ongoing complaints of pain and the ultimate referral to a pain management specialist, Dr Michael Davies for an opinion regarding radiofrequency lesion to the L3/4 facet joints.

Dr Michael Davies, pain specialist

Serial reports confirm the L3/4 facet joints were the significant contributor to her low back pain with a recommendation for radiofrequency ablation made. Diagnostic facet blocks at the L3/4 level were undertaken on 23 September 2022 with short-lived results.

Eastern Creek Occupational Medicine Centre

Clinical notes produced by this Centre record the applicant’s attendances initiated by her employer. A total of four visits are recorded between 14 May 2021 and 28 May 2021 each recording a consistent history of injury, ongoing pain with certificates issued certifying the applicant as being totally unfit.

Narellan Town Medical Centre

Overall, the clinical entries record presentations reflecting fluctuations in pain and symptoms with ultimate referral to a neurosurgeon and pain specialist. Treatment modalities of medication, physiotherapy, cortisone injections and chiropractic are recorded.
Certificates of Capacity issued by Dr Karime certify the applicant totally unfit on account of mechanical lower back pain, lumbar strain with spasm, bilateral facet joint L3/4 bilaterally between 14 June 2021 to 19 July 2021.
Between 9 July 2021 to 26 July 2021, Dr Karime then certified the applicant as having some capacity for work, four hours per day on three days per week with a lifting and carrying capacity of 5kg floor to waist, 30 minute sitting tolerance, 30 minute standing tolerance, pushing and pulling as tolerated and bending/twisting and squatting to 3kg with nil driving.
The applicant was then certified totally unfit for work between 27 July 2021 to 4 October 2021 following each of six separate presentations to the medical centre.
The applicant was then certified fit for work, with a lifting restriction of 5kg, sitting tolerance of less than 20 minutes, standing tolerance less than 20 minutes and driving less than 20 minutes. The five separate medical certificates are silent on how many hours that applicant was fit to work, suggesting a pattern of attendance on Mondays, Wednesdays and Fridays between 5 October 2021 to 11 February 2022.
Changes to certification took place on 11 February 2022 at which time Dr Karime certified the applicant as fit to work four hours per day on three days per week with restrictions of
(1)    12kg lifting limit, repetitive up to 6kg;
(2)    sitting tolerance of no more than 20 minutes;
(3)    standing tolerance of 30 minutes;
(4)    pushing and pulling 10kg;
(5)    driving ability less than 20 minutes, and
(6)    no repetitive work, break every hour between 11 February 2022 to 25 November 2022.

Dr Bentivoglio

In a report dated 31 May 2023, following an independent medico-legal assessment, Dr Bentivoglio takes a consistent history and diagnosed:
“My working diagnosis in this lady is a lady with mechanical axial low back pain secondary to facet joint disease at the L3/4 level which was asymptomatic before the work injury on 14 May 2021 and has subsequently become symptomatic following that work injury.”[2]
[2] Folio 33 ARD.
As regards causation, it was reported:
“I do believe that her employment is the main exacerbating factor to the pre-existing facet joint arthropathy at the L3/4 level. I do believe that the facet joint disease was there before the work injury and has been exacerbated by the work injury. So, she has suffered an acute exacerbation of the facet joint disease at the L3/4 leave. She does suffer from a disease. She suffers from facet joint arthritic changes. These arthritic changes have been developing over a period of time, her work being a partial contributing factor to them, but she was a very active lady doing a lot of exercises which has been also a contributing factor to the development of the facet joint disease. So, I do believe that the work injury has been an aggravation of this pre-existing facet joint disease at the L3/4 level. I do believe her work employment was the main factor that aggravated this facet joint disease because she did not have any back issues before this[3]
…Unfortunately, the pain still persists but that is more related to the degenerative changes in the facet joint at L3/4. The work injury usually settles after about 6-9 months but the underlying problem, that is the facet joint arthropathy, is still present and is still symptomatic…
At this stage she still is symptomatic from the facet joint arthropathy which was exacerbated by the work injury which she had not had any previous back issues. So, one would have to say her condition at this point of time has not completely resolved and probably will never resolve because of the nature of the degenerative facet joint arthropathy.”
[3] Folio 34.

MRI lumbar spine 1 September 2021

The report confirms marked bilateral L3/4 facet joint arthropathy but no significant disc bulge, central canal narrowing or foraminal narrowing at any level.

Respondent’s evidence

Dr Sheehy

Dr Sheehy, consultant neurosurgeon reported on 22 July 2022. His report takes a consistent history of injury, treatment modalities, nil relevant past medical history and reported that progress had been slow despite extensive treatment. He recommended L3/4 facet joint injections and possible radiofrequency lesions of those joints. He opined the applicant may return to restricted duties or possibly pre-injury duties depending on her response to the facet joint injections. He also determined there was an aggravation to pre-existing degenerative changes of the L3/4 and accepted that the applicant was asymptomatic prior to her injury on 14 May 2021.
Dr Sheehy further stated (unedited):
“The injury was more than a year ago and on the balance of probabilities it is more likely that the underlying degenerative changes are contributing to persisting symptoms and that the aggravation that occurred at the time of the injury has ceased…
She has been symptomatic for more than a year and it is difficult to estimate a timeframe for full recovery if she has been unresponsive to all treatments so far. It will depend on her response to the facet joint denervation. If this is successful, then she could resume part-time duties within six weeks….
Timeframe for recovery will be better assessed a month after the radiofrequency lesions. If she has a good response, then it is likely that she will return to at least restricted duties within a month and hopefully within two or three months to pre-injury duties.”
In a supplementary report dated 26 September 2022, Dr Sheehy again stated (unedited):
“lt is more likely that the ongoing symptoms are due to underlying degenerative changes most likely at the L3/4 level…
I recommended injections into the L3/4 facet joints and possible radiofrequency ablation and continuing in a gentle exercise program and analgesics under the supervision of the Local Medical Officer.”[4]

SUBMISSIONS

[4] Folios 13 and 14 of the ARD.

Applicant’s submissions

When summarised the arguments were:
(a)    the evidence clearly shows that employment was the main contributing factor to the aggravation of the underlying degenerative condition. There were no previous complaints of pain or treatment. The applicant was fit and well;
(b)    there is a clear contemporaneous connection of ongoing back symptoms and incapacity with employment and but for the denial of liability treatment would have continued but has become financially prohibitive;
(c)    there are no medical certificates beyond the date of denial but there is no requirement for such certificates to be provided once liability has been denied – s 44B of the Act;
(d)    there is a presumption in favour of the continuance of the work-related aggravation of the condition, Tizzone v F & K Electrics Pty Limited [2008] NSWWCCPD 14;
(e)    there is no suggestion that there was any other contributing factor to the aggravation of the applicant’s underlying condition, save for employment, and
(f)    the applicant referred to the discussion by Snell DP in Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer[5] (Gradan)and the decision by Roche DP in Wollongong Nursing Home Pty Ltd v Dewar[6] (Dewar) and submitted that it was necessary to consider whether there were any “real jobs” in the labour market in which the applicant would be able to work. The applicant contends that the restrictions in the medical certificate allow only a theoretical participation in the workforce.
[5] [2020] NSWWCCPD 36.
[6] [2014] NSWWCCPD 55.

Respondent’s submissions

When summarised the essence of the arguments were:
(a)    there is a disconnect between the claim of total incapacity and the radiological findings;
(b)    there is a disconnect between the claim for total incapacity in activities of daily living and the certificates of capacity. The applicant’s statement verifies she is able to undertake physical tasks around the home and community;
(c)    the opinion of Dr Sheehy should be preferred as it is consistent with Dr Bentivolgio’s views on facet joint disease being the main contributing factor to incapacity and symptoms, and
(d) the evidence supports aggravation ceased in November 2022 and given the applicant was deemed fit to return to suitable work, liability was properly denied with effect on 25 November 2022. The applicant has received benefits under s 36 of the Act and any s 37 entitlement period ceases on 10 November 2023.

Applicant’s submissions in Reply

Radiology is a matter for the medical specialists. Doctor’s do not treat radiological findings but rather symptoms.
The opinion of Dr Sheehy is stand alone.
There is no disconnect between the applicant’s statement relating to her activities of daily living and the current certificates of capacity.

FINDINGS AND REASONS

Injury

Section 9 of the Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is relevantly defined in s 4 of the Act; relevantly
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The respondent now asserts any workplace aggravation has ceased. The applicant maintains that Dr Sheehy stands alone in his opinion on this point and insisted I find presumed continuance of the aggravation (Tizzone).
With regards to any aggravation having ceased, I do not find Dr Sheehy’s findings persuasive or compelling. This is because his report offers no reasoning as to why he considers the aggravation has ceased. He simply states that “on the balance of probabilities is it more likely (my emphasis) that the underlying degenerative changes are contributing to persisting symptoms and that the aggravation that occurred at the time of the injury has ceased”. But why? What causes him to make this assessment? Is it merely “likely” or has the aggravation ceased? The mere fact that a year has elapsed does not of itself mean aggravation has ceased. There is no reasoning, no justification and no overall consideration of the evidence of the treating doctor or indeed the applicant’s ongoing complaints when making that conclusion. Dr Sheehy has in my view come to a somewhat abrupt and unreasoned conclusion which unfortunately was accepted by the insurer who failed to explore or clarify what he meant by the term “likely”. I am especially critical of this opinion as Dr Sheehy acknowledges the applicant was asymptomatic and fit prior to her workplace incident having worked for the employer for a period of no less than 18 months in what he described as a “quite heavy role” and especially where he acknowledges the pathology on investigations of “very greatly active facet joint arthritis bilaterally at the L3/4 with no other significant change”. I find there is a disconnect between his findings on examination and ultimate conclusion.
Overall, I find the respondent’s medical evidence is suboptimal and I further find it was remiss of it to deny liability on a “likely” cessation of an aggravation. More is required. The opinion is nothing more than fence sitting. A qualified medico opinion, particularly one which is used to make a liability determination, must be backed up by evidence that would rationally and reasonably support the conclusion. This is absent here. As to consideration of the principles of “presumption of continuance”, such analysis is unnecessary given my findings relating to the respondents medical opinion.
I do however accept the submissions of the respondent in relation to the applicant’s qualified medical opinion. Dr Bentivoglio’s report is confusing at first blush and the respondent was correct to criticise it. The conclusions of Dr Bentivoglio are summarised above, although I note that he does ultimately redeem his opinion by excluding any non-work related factors, emphasising the asymptomatic nature of the disease prior to injury, acknowledging slow progress, identifying the significances of the radiological findings and the aggravating effect of the heavy manual labour on such pathology and ultimately offering an opinion that is congruous with that of the pain specialist, neurosurgeon and general practitioner.
I find that the applicant did sustain injury in the course of her employment. I further find that there is no other evidence to suggest anything but her employment injury is the cause for her ongoing symptoms. I find that the applicant satisfies the definition of injury and that such injury continues.

Capacity

Extent and quantification of incapacity

Section 33 of the Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer shall include a weekly payment during the incapacity.
The applicant received compensation until 25 November 2022. The parties agree that s 37 benefits cease with effect on 10 November 2023 (that is the second entitlement period).

For the applicant to be entitled to weekly compensation pursuant to s 37(1) of the 1987 Act, that is 80% of the pre-injury average weekly earnings (PIAWE) of $893.84[7] she must demonstrate that she has, during the relevant period had “no current work capacity”. The expression, “no current work capacity” is relevantly defined in Item 9 of Schedule 3 to the Act as follows:
“9      Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)     An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)     An injured worker has no current work capacity if the worker has 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.”
[7] Respondent AALD filed on 8 November 2023
I must now determine whether the applicant was able to work in ‘suitable employment’, a definition found in s 32Aof the Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
The definition of suitable employment has been exhaustively discussed in Wollongong Nursing Home Pty Ltd v Dewar[8] and also Graden Bathrooms Pty Ltd v Workers Compensation Nominal Insurer[9]. The key points from those decisions is whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work. If there are not, then an injured worker will not have current work capacity. The decisions clearly state that geography, age and availability of work are irrelevant.
[8] [2014] NSWWCCPD 55.
[9] [2020] NSWWCCPD 36.
To determine whether there is suitable employment in the applicant’s case, it is necessary to consider first the nature of the applicant’s incapacity and the medical evidence.
On this point, the respondent maintained the applicant’s statement demonstrated an ability to undertake domestic tasks and so that demonstrates some capacity. However, when analysing the statement in its entirety, the capacity exists in a self-paced fashion and alterations have been made not only to the home, but also as to how the tasks are performed, such alterations and restrictions being entirely consistent with the medical evidence.
I next considered the medical certificates detailed extensively in paragraphs 22 and 24 above although as liability had been denied certification ceased on 25 November 2022. I cannot reconcile why Dr Karime upgraded the applicant’s tolerances particularly with regards to lifting (increasing this to 12kg from 5kg) with effect 11 February 2022, particularly when the applicant demonstrated that her return to work was unsuccessful and she had not continued to trial such tolerances in the workplace. Nothing turns on this concern, except to say that as the applicant had not trialled such tolerances, on what basis were they certified? In any event, the certificates significantly restrict activities requiring regular rest breaks and no prolonged sitting or standing for periods of up to 20 to 30 minutes with no repetitive work. There can be no dispute that this certificate would restrict the applicant’s capacity to perform work as a warehouse attendant or other similar manual work. More likely than not, the general medical evidence implies sedentary duties (such as office work or even retail work), such opportunities also being significantly restricted given the restrictions on sitting and standing.
Here the respondent has not undertaken a vocational assessment, instead denying the claim on “likely” cessation of aggravation. Such a case management response fails to assist with possible vocational redirection and offers little in the way of a defence with regards to “no current work capacity.”
I also note the applicant has not received the treatment suggested (given liability was denied and such treatment is now financially prohibitive). There is nothing to suggest that her condition has improved or in fact deteriorated. The certificates above certify a capacity to work on four hours per day, alternate days with a host of restrictions including rest breaks on the hour, limited lifting, twisting and bending amongst other restrictions whilst in receipt of treatment. Dr Bentivoglio, Dr Darwish and Dr Davies share these views. Dr Sheehy reported on 22 July 2022 that a return to pre-injury duties could not be assessed as it would depend upon response to facet joint injections stating further “timeframe for recovery will be better assessed a month after the radiofrequency lesions. If she has a good response, then it is likely (my emphasis) that she will return to at least restricted duties within a month and hopefully within two or three months to pre injury duties.”
The evidence was that the applicant attempted to return to work but was unsuccessful in maintaining work because of the aggravation caused by sitting when driving to and from the workplace. Her attempts to return to work ceased after six shifts.
On the basis of the global medical evidence, I accept and find the applicant has not been suited to any real form of physical or sedentary work. Certainly, the certificates certify fitness for suitable duties but the restrictions are theoretical and were offered at a time when the applicant was in receipt of treatment prior to the denial of liability. The medical evidence clearly states the applicant requires ongoing treatment with periodic review as to progress following such interventions. This has not occurred here due to the denial of liability.
Overall, in the circumstances and given the restrictions nominated in the medical evidence I find that the applicant’s ongoing disability results in a finding that she has since 26 November 2022 had no current work capacity in either her pre injury or suitable employment no matter how abstract the provisions of s 32A(b) describe potential employment.

SUMMARY

For the reasons above, I find the applicant is entitled to weekly compensation from 26 November 2022. I accordingly make the orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 10

9 January 2024