Baker v Aurizon Operations Ltd
[2023] NSWPIC 128
•24 March 2023
| DECISION OF PRESIDENT’S DELEGATE | |
Citation: | Baker v Aurizon Operations Ltd [2023] NSWPIC 128 |
| APPLICANT: | Garry Baker |
| RESPONDENT: | Aurizon Operations Ltd |
| PResident’s Delegate: | Parnel McAdam |
| DATE OF DECISION: | 24 March 2023 |
| DATE OF AMENDMENT: | 29 March 2023 |
CATCHWORDS: | Work capacity dispute; suitable employment; consideration of medical information going to incapacity; age, skills, experience and qualifications; provision of rehabilitation services; applicant had been a union delegate but did not have skills as an organiser; Held – no suitable employment options identified; award of weekly payments for the applicant. |
| Orders made: | AMENDED INTERIM PAYMENT DIRECTION The President directs: 1. The respondent pay the applicant weekly compensation benefits pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $2,233.00 per week from 17 February 2023 to date and continuing. 2. to date and continuing. 3. The above amount is to be indexed in accordance with the legislation from time to time. |
STATEMENT OF REASONS
BACKGROUND
Mr Baker was employed by the respondent as a train driver. He suffered an injury on 22 March 2021. He was walking down some stairs when his heel caught on a piece of nonslip tread. Whilst his body moved forward, his right leg was stuck and his knee jerked, causing pain. There were issues with stability which led to right knee ACL reconstruction surgery on 7 June 2021.
On 17 November 2022, the respondent made a decision that Mr Baker was able to work in suitable employment as a work health safety advisor for 5.5 hours per day, 5 days per week. As a result of this decision, his weekly payments were to be reduced $319 per week. Mr Baker commenced proceedings in the Personal Injury Commission (Commission) challenging that decision.
Issue in dispute
The claim in this matter concerns weekly benefits under s 37 of the Workers Compensation Act 1987 (the 1987 Act). The issue in dispute in this matter concerns whether and to what extent Mr Baker has capacity for suitable employment in accordance with the definition in s 32A of the 1987 Act.
The evidence
I have reviewed all of the evidenced lodged by the parties attached to the Application for Expedited Assessment (the Application) and Reply to Application for Expedited Assessment. The key documents relevant to the determination of the issues in dispute are discussed below.
The dispute notice
The respondent issued a s 78 Notice on 17 November 2022. The notice is somewhat confusing and has a number of internal inconsistencies. For example, the first two paragraphs refer to the decision being made on 17 February 2023, and then on 17 January 2023. The reasons explain that the change is to come into effect from three months plus seven working days in accordance with the postal rule set out in s 80 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Even taking 17 February 2023 as the effective date, noting the ambiguity expressed in the introduction to the s 78 notice, it appears that this does not take into account s 80 of the 1998 Act, but rather is calculated based on three months only.
The substance of the notice identifies three roles as suitable, being “work health safety officer, workplace relations officer, and training development officer”. The notice specifically states that the role of “Work Health Safety Advisor” is the suitable employment option relied upon (noting here the difference between the terminology used of “officer” and “advisor”).
Vocational assessment report of Workers Health Centre
The respondent’s decision relied on a vocational assessment report. The roles identified as suitable were union organiser, work health and safety officer, fisheries officer and training and development professional. Each role was said to be suitable with specific provisos that centred around upgrading Mr Baker’s capacity for hours each week, and obtaining skills, experience, qualifications or engaging in a work trial.
The vocational assessment report sets out Mr Baker’s employment history, with 17 years as a train driver, and during that time, as a union delegate with the RTBU. Prior to this experience Mr Baker was a sales representative and manager of a retail store. Transferrable skills were analysed relevant to the roles identified.
A labour market analysis was conducted and is annexed to the report. In each case, as per usual practice, prospective employers were contacted for feedback. In two of the three contacts relating to a work health and safety officer role, specific qualifications were required that Mr Baker did not possess.
In terms of the union organiser role, each employer required one year of experience. As Mr Baker points out in his statement, he was a union delegate not a union organiser. The role of fisheries officer was said to be suitable, although the contact summary acknowledges that Mr Baker does not possess “experience in completing inspections/regulatory work” but would be required “to engage in a work trial to develop the experience for the role”.
A “client and doctor vocational goal agreement” was sent to Dr Aye, the applicant’s treating general practitioner on 11 May 2022. He signed the three identified roles and circled “yes” to “agreement”.
Functional capacity evaluation
Mr Baker attended a functional capacity evaluation with a physiotherapist on 20 January 2023. A relevant history was taken. A series of exercises was completed with photographs taken. Mr Baker highlighted where specific symptoms arose during each activity.
Questions were asked concerning the suitable employment options identified by the insurer. It was concluded that “Mr Baker is not fit to return to any work requiring physical or manual work”. It was further opined that:
“Assuming Mr. Baker has the qualifications, interest and willingness to participate in the above mentioned roles, in his current presentation Mr. Baker may be bound to an office based role.”
A maximum of four hours per day, three days per week in an office based role was recommended.
Functional assessment report of Premier Rehabilitation
This functional assessment report was relied upon by the applicant. It was drafted by Mr Mel Wears, and issued on 13 February 2023. Mr Wears relied on the functional capacity evaluation discussed above. Mr Wears also reviewed the workers health centre vocational report, and opined:
“When viewing the vocational recommendations from The Workers Health Centre, Mr Baker would not be able to meet the physical requirements of the recommended positions and thus the identified vocations are not realistic or achievable”
Mr Wears discussed each of the proposed positions. He identifies some of the issues with the roles identified in the vocational assessment report, in relation to both the medical and the skills side of things. Mr Weals recommends that:
“The Vocational Assessment as provided by the Workers Health Centre should be set aside as the recommended vocations contained in the report are not realistic or achievable for Mr Baker”
Reports of Dr MacKenzie
Dr MacKenzie is the applicant’s treating surgeon. He performed a right knee ACL reconstruction on 7 June 2021, and provides various reports prior to and following the surgery. His most recent report is dated 25 November 2021, noting that the ACL is stable, but that Mr Baker has some quadriceps wasting on the right.
Submissions
The parties were involved in extensive discussions during the conference. Unfortunately, they were unable to come to an agreed resolution of the issues in dispute. Accordingly, I issued a direction calling for written submissions. I also allowed, by consent, the respondent to send a full copy of Dr Aye’s approval of the roles identified in the vocational assessment report, a number of pages of which were not attached to the copy in the Reply.
Applicant’s submissions
The applicant submits that the respondent’s work capacity decision is fundamentally unfair, based on insufficient evidence, and ultimately premature. The applicant notes that there has been an application for training for a Certificate IV in Work Health and Safety. The applicant submits that the role of work health and safety advisor is only suitable once Mr Baker obtains the Certificate IV, and the Commission should overturn the work capacity decision on that basis.
The applicant sets out some submissions regarding the conduct of the respondent. The applicant submits that the respondent was aware that the applicant did not have the necessary capacity, skills, qualifications and experience for the identified role. The applicant refers to s 45(6) of the 1998 Act, which provides an obligation for the provision of “vocational retraining”. The applicant submits that not only has the respondent failed to provide vocational retraining, they have also issued an adverse work capacity decision in circumstances where they knew the applicant had no real prospects of working in the role identified, explicitly or implicitly breach its obligation under s 45. The applicant also notes that the respondent has breach standard 16 of the SIRA Standards of Practice: Expectations for insurer claims administration and conduct.
The applicant refers to the definition of suitable employment in s 32A of the 1987 Act. The applicant identifies that the respondent’s own vocational assessment report concludes that the applicant does not have physical capacity for the role identified and must be upgraded to 30 hours per week. The applicant submits that per the current certificate of capacity, the applicant remains certified fit for 27.5 hours per week, and per the functional capacity evaluation, the applicant’s capacity was said to be four hours, three days per week.
The applicant submits that he does not have the physical capacity for the role of work health safety advisor, nor the skills, qualifications, or experience for the role.
The applicant submits that he does not meet the physical requirements for the role of workplace relations advisor, in that he must be fit for 38 hours per week. The role involves frequent walking between offices, and that worksite assessments may be involved. The applicant also highlights that there are inconsistencies in the employment history and duty description provided in the respondent’s vocational assessment report, noting that the role of a union delegate is substantially different to a union organiser. The vocational assessment report also notes that a union delegate training course would be required for the role.
The applicant submits that he does not meet the physical requirements for the role of training development officer. Again, he would be required to be fit for 38 hours per week. He must be able to mobilise sufficiently to enter and exit a train and cannot do this on account of his physical incapacity. He has limited computer skills and the respondent has misrepresented his abilities in that regard. The applicant also has no experience in this type of role.
The applicant refers to Dr Aye’s approval, and submits that minimal weight should be given to this evidence. The descriptions of each role are reduced and vague summaries. It is noted that Dr Aye has certified Mr Baker as fit for hours that remain below what is required for each role.
The applicant also submits that the respondent has incorrectly calculated the amount that he could earn in suitable employment, should I not accept their primary submissions.
Respondent’s submissions
The respondent disagrees with the applicant’s submissions and submits that the work capacity decision should be confirmed. The respondent refers to the vocational assessment report they conducted and submits that the roles identified were those that the applicant himself offered as his job preferences.
The respondent refers to the definition of suitable employment in s 32A of the 1987 Act and submits that the applicant does not assert that he is unable to perform the 27.5 hours per week that he has constantly been certified for nor does he attempt to offer any alternative employment options that may be suitable.
The respondent refers to the applicant’s current certificate of capacity and notes that the clinical records indicate considerable progress in that regard. The respondent submits that the applicant’s vocational assessment does not overcome the treating clinical evidence and the respondent should place considerable weight on that evidence. The respondent refers to the treating clinical records of Mr Dawson and Dr Aye, as well as the report of Mr Kessler, which evidence this increased capacity.
The respondent submits that the applicant’s functional capacity report contradicts the evidence of his treating practitioners who examine him regularly and who provide regular updates on his functional progress. The respondent refers to Stefanac v Secretary, Department of Family and Community Services [2019] NSWWCCR 4 (Stefanac) and submits that the Commission ought to give weight to the work capacity decision where treating doctor approval has been provided.
The respondent also refers to the applicant’s clinical records which confirm he has actively been applying for positions, including a fisheries role. The applicant has not provided any evidence in this regard. The respondent submits that the applicant’s vocational assessor has made no effort to contact real world employers to determine the applicant’s suitability to complete any roles. The respondent also refers to Brady Kochel v Ready Workforce [2020] NSWWCCR 7 (Kochel).
The respondent submits that the applicant possesses a number of relevant qualifications demonstrating his skills in study, research and clerical skills. The respondent submits that the applicant has a demonstrated ability to complete training, sufficient to engage in sedentary type employment which is otherwise disputed by the applicant.
The respondent relies on the labour market analysis. The respondent notes that while the applicant would be required to upgrade to 30 hours per week, he was considered to have functional capacity for the roles. The respondent submits that these are genuine actual occupations in ‘real work’ with reference to Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar).
The respondent also made submissions in response to the applicant’s submissions concerning the calculation under s 37 of the 1987 Act.
Applicant in response
In response, the applicant disputes that there is a requirement for the applicant to provide alternative employment options. The applicant contends that if a formal functional assessment was conducted by the respondent, it would not have considered the identified roles as suitable employment.
The applicant refers to the respondent’s submissions relying on Stefanac and Kochel, and submits that, in substance, they do not support the respondent’s case. The applicant also submits that the respondent’s submissions concerning earnings are incorrect.
Discussion
When considering the definition of suitable employment in s 32A of the 1987 Act, there are certain factors that I must have regard to and others that are irrelevant. In the present case, these are:
(a) 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 s 44B);
(b) the worker’s age, education, skills and work experience, and
(c) any occupational rehabilitation services that are being, or have been, provided to or for the worker.
The applicant’s submissions, which refer to s 45(6) of the 1998 Act, potentially attempt to bring in “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”. These submissions are headed “conduct of the respondent”, which, although they raise some genuine issues of concern, are not particularly relevant to my consideration under s 32A.
The medical issues
“The medical issues” is the generic term for the issues raised in sub (a) of the definition, which go to the nature of the worker’s incapacity. Mr Baker is certified with capacity for some type of work for 5.5 hours per day, 5 days per week. He as a lifting/carrying capacity of 20kg with minimal repetition, with the same for pushing. He can squat and bend and drive. This certification and these restrictions have been present for some time. They are not particularly onerous.
Mr Baker underwent a functional capacity evaluation which involved a series of tests of his ability to perform certain exercises. The conclusion of that testing is that “Mr Baker is not fit to return to any work requiring physical or manual work”. There was noted to be an increase in symptoms with activities such as standing, walking bending, sitting and squatting. This is in contrast to the certificate of capacity which places no specific restrictions on those activities. However I find this evidence quite persuasive as it provides a genuine outline of capacity based on thorough testing. Based on the restrictions outlined, Mr Baker is only fit for an office-based role.
The respondent’s vocational assessment report considers the functional requirements of the roles based on Mr Baker’s certified capacity without considering his genuine functional limitations for the roles identified. For example, the role of work health safety advisor is said to be “sedentary physical demand”, but requires frequent standing and walking within the office and at sites. Whilst this is a role that requires office-based work, in terms of writing reports and reviewing policy, it also requires site visits which involve walking and potentially traversing difficult terrain.
As the applicant’s vocational assessment report points out, to undertake a role as a work health and safety inspector would require walking along side train tracks, with uneven ground. It may also involve awkward postures, long periods of standing, or climbing of ladders. There is a genuine risk of aggravation or reinjury of the knee in such conditions.
One of the issues identified by the applicant in relation to the other two roles is that Mr Baker does not have the certified capacity for the roles, in terms of hours per week. The employer contacts all certified that Mr Baker would need to be fit for 38 hours per week to be considered suitable for the roles of workplace relations officer and training development officer.
In that regard Dewar provides relevant guidance. The respondent submits that the roles identified are actual occupations in real work. The employers contacted as part of the vocational assessment report are certainly real and the roles are real jobs, as opposed to a collection of duties as occurred in Dewar. The issue is that based on the feedback provided from employers as set out in the vocational assessment report, no employer would hire Mr Baker for less than 38 hours per week. His certified capacity of 27.5 hours was a genuine impediment to him obtaining the roles. This takes the exercise into the “totally theoretical or academic” per Dewar at [60]. Whilst theoretically, it could be argued that Mr Baker may be able to do the roles (which I question, as outlined above, in terms of his physical capacity), those roles all require greater hours per week than Mr Baker can work. This goes precisely to “the nature of the worker’s incapacity”.
The worker’s age, education, skills and work experience
Mr Baker has worked for the last 17 years as a train driver. In that time he has certainly obtained a suite of skills, mostly relevant to the particular functions of that role. The respondent has relied on some ancillary activities undertaken by Mr Baker, most notably in his role as a union delegate, to suggest that Mr Baker is suitable for the roles identified in the s 78 notice.
I will address the issue of Mr Baker’s union role first, and how it connects to the identified role as a workplace relations advisor. Mr Baker has, for the period of his employment with the respondent, been a delegate with the RTBU. A delegate is not a union organiser or “workplace relations advisor”. A delegate is not an employed position but rather a contact point within the organisations for issues that can then be funnelled to the appropriate contact point at the union, being an organiser or advisor. As Mr Baker points out in his statement, he has never been involved in the actual functions of the role – being making submissions, advising on workplace relations, or undertaking negotiations. I agree with Mr Baker’s comment in his statement that “I don’t understand how my union delegate experience even gives me the necessary transferrable skills”.
The respondent submits that Mr Baker has demonstrated an ability to complete training and sufficient understanding to complete reports or presentations, consistent with “sedentary” type employment. I accept that Mr Baker has completed training and previously held some qualifications. However, the capacity to undertaking a training course involves different skills and knowledge to working in employment in a specific role.
As a fundamental principle it seems as though most of the roles identified would only be suitable, in terms of Mr Baker’s skills, experience and qualifications, if he underwent a work trial. For example, the fisheries role contact summary acknowledges that Mr Baker does not possess the relevant experience, but would be required to engage in a work trial to develop such experience. The same was said for the role of training and development officer.
The relevant considerations in s 32A do not postulate that at some point in the future, with the benefit of a work trial, a worker could be said to be suitable for a role. The question of suitable employment requires the consideration of certain factors, including “experience”. If one does not possess suitable experience, the role cannot be said to be suitable, regardless of whether the opportunity to gain that experience through a work trial exists. It is illogical. Almost any role that did not require a specific license or qualification (such as a practising certificate) could be said to be suitable following a work trial. On the job learning is an important part development in a new role. That does not mean that every new role fits within the definition of suitable employment.
The respondent relies on the case of Kochel, a decision of delegate Gamble. I would first point out that work capacity decisions are inherently factual. Other cases with similar facts do not offer precedent. Further, in that case delegate Gamble was discussing training, not a work trial. She states (at [24(f)]:
“I reject Mr Kochel’s submission that the need for him to undertake training to perform the identified roles proves the employment is not suitable. A lack of work experience in a proposed role does mean the role is not being suitable. The test under section 32A requires consideration of the nature of the proposed role, having regard to the worker’s age, education, skills and work experience, regardless of the nature of the pre-injury employment.”
The employer feedback in the present matter is “The employer preferred the candidate have experience in a similar WHS position to work in the role. Mr Baker would be required to engage in a work trial to develop the experience required for the role”. This is an expression that Mr Baker does not have the “experience” for the role, one of the specific criteria that must be considered under the definition of suitable employment in s 32A.
Based on my consideration of the evidence, I am not satisfied tha Mr Baker is capable of work in suitable employment in any of the roles identified having regard to his age, education, skills and work experience.
Occupational rehabilitation services
As discussed above, this issue came to light in the applicant’s submissions going to the insurer’s conduct. Of greater relevance is the insurer’s failure to provide occupational rehabilitation services relevant to Mr Baker. Training in a Certificate IV in work health and safety was requested by the Workers Health Centre on behalf of Mr Baker. That was potentially approved (although there is nothing in the evidence to confirm) but per Mr Baker’s statement, he was ineligible for the training as he had no current employer. Given the respondent identified that a work health and safety advisor/officer was suitable employment, the provision of this Certificate for Mr Baker would go a long way to satisfying that definition and for Mr Baker to be successful in seeking such a role.
Other issues
The respondent has made a brief, almost throwaway submission that the applicant has not offered any alternative employment options that he may be suitable for. With respect that submission is irrelevant and meaningless. It is not the role of the applicant to identify suitable employment options whether in a dispute with the Commission or in communications with the insurer. The applicant complied with his obligations to attend the session that ultimately led to the work capacity decision being made. The respondent has no basis to criticise the applicant.
In response to the applicant’s submissions regarding the calculation of an entitlement, the respondent suggests some alternative figures that can at best be described as “creative” but approach disingenuous. The respondent refers to employer contact one, in the role of work health safety advisor, as being “weekly remuneration for a 30 hour week is $1900 per week”. That is not correct. The hourly rate is said to be $50 and the weekly rate $1,900. Simple mathematics shows that $1,900 is for a 38 hour week, not 30 hours as suggested by the respondent. A 30 hour week at $1,900 per week would be hourly earnings of $63.33. It is not clear whether this submission was made based on a calculation error or something else, but it is clearly incorrect. The figure of $1,741.66 as a proposed earning capacity suggests the latter, as it is equal to 27.5 hours per week at $63.33 per hour.
As outlined in my discussion of the s 78 notice, set out above, there appears to be a fundamental issue as to the validity of the decision itself. The respondent has not complied with the postal rule per s 80 of the 1998 Act and s 76 of the Interpretation Act 1987. The notice states:
“The date this change comes into effect includes a notice period of 3 months plus a further 7 working days for delivery by post as required by section 80 of the Workplace Injury Management and Workers Compensation Act 1998 and section 76 of the Interpretation Act 1987.”
The “further 7 working days” has not been included in the respondent’s calculation. The applicant did not raise this as an issue in dispute, and the respondent has not submitted on it. I have not determined the issue in this case, but it appears as though the notice was invalid when first issued.
Decision
Mr Baker has no current work capacity for the roles identified by the respondent in their s 78 notice. I will make an award of weekly payments under s 37 of the 1987 Act. The parties did not raise any issue with the figures provided in the s 78 notice, and the respondent’s calculations were based on a payment (not pre-injury average weekly earnings (PIAWE)) of $2,233. It appears that figure is the PIAWE, not the weekly payments. Section 37 provides for payments to be made at 80% of PIAWE and I will make an award in that amount.
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