Bibawy v Ace Gutters Coil Coaters Pty Ltd - [2021] NSWPIC 96

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bibawy v Ace Gutters Coil Coaters Pty Ltd [2021] NSWPIC 96
APPLICANT:	Hany Bibawy
RESPONDENT:	Ace Gutters Coil Coaters Pty Ltd
PRINCIPAL MEMBER:	Ms Josephine Bamber
DATE OF DECISION:	27 April 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation for agreed injury to applicant’s lumbar spine and right lower extremity assessed by Medical Assessor at 12% WPI; Work Capacity Decision to reduce applicant’s weekly compensation; Held- applicant established he has no current capacity for employment and award made in accordance with section 37(1) of the 1987 Act.
DETERMINATIONS MADE:	1. Pursuant to section 37(1) of the Workers Compensation Act 1987 the respondent is to pay the applicant weekly compensation at the rate of $1,013.22 per week from 23 March 2021 to date and continuing. 2. The respondent is to have credit for any payments of weekly compensation made from 23 March 2021 to date.

STATEMENT OF REASONS

BACKGROUND

Mr Hany Bibawy sustained injury to his lumbar spine with consequential conditions to his right leg, right hip and depression on 22 August 2018 when he was in the course of his employment with the respondent, Ace Gutters Coil Coaters Pty Ltd. The injury occurred when he was moving a one tonne tank of chemicals on a hand operated pallet jack.
In these proceedings he brings a claim for lump sum compensation and weekly compensation. The lump sum compensation claim has already been dealt with as there was a referral by consent to an Approved Medical Specialist (AMS). AMS Dr Weisz issued his Medical Assessment Certificate on 8 February 2021 finding that Mr Bibawy has 12% whole person impairment in relation to the injury to the lumbar spine and right lower extremity (hip). Orders have been made by the Commission for payment of the lump sum compensation arising from that assessment.
The claim for weekly compensation remains to be determined. In his Application to Resolve a Dispute (ARD) Mr Bibawy seeks ongoing weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act) from 19 October 2020.
The respondent relies upon a Work Capacity Decision (WCD) set out in the notice issued pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 3 August 2020 which states he has capacity to undertake employment as a Transport and Dispatch Clerk.
The respondent advised at the hearing that the applicant has been paid 103 weeks of weekly compensation up to 30 March 2021 and is continuing in receipt of weekly compensation because Mr Bibawy filed his ARD in the requisite timeframe to receive a stay in relation to the operation of the WCD until the Commission has determined the dispute. Mr Bibawy’s counsel advised the last payslip shows that he was paid weekly compensation to 22 March 2021 and she sought to amend the ARD to claim weekly compensation to start from 23 March 2021 with an order that the respondent have credit for any payments made since that date. There was no objection to such an amendment by the respondent.
The pre-injury average weekly earnings figure (PIAWE) is agreed at $1,266.52 and 80% of that is agreed to be $1,013.22.

PROCEDURE BEFORE THE COMMISSION

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.
The matter proceeded in Arbitration Hearing on 24 March 2021. Ms Lyn Goodman, counsel, instructed by Ms Miki Milicevic, solicitor, represented Mr Bibawy, who was present together with an interpreter, Ms Eman Shenouda. The respondent was represented by Mr Lachlan Robison, counsel, instructed by Mr Mark Van Der Hout, solicitor.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) The ARD and attached documents;
(b) Reply and attached documents;

(c) Application to Admit Late Documents filed by the applicant dated 4 November 2020 (AALD1);

(d) Application to Admit Late Documents filed by the applicant dated 17 March 2021 (AALD2); and

(e) Medical Assessment Certificate (MAC) of Approved Medical Specialist (AMS)
Dr Weisz dated 8 February 2021.

Oral Evidence

There was no oral evidence. Both counsel made oral submissions which were sound recorded; and a copy of the recording is available to the parties.

FINDINGS AND REASONS

At the outset of the respondent’s submissions Mr Bibawy’s counsel objected to the respondent making submissions regarding jobs not identified in its work capacity decision contained in its section 78 notice dated 3 August 2020, which only relied upon work as a transport and dispatch clerk as being suitable employment. I found that Mr Bibawy had clearly prepared his case on the basis of the terms of that dispute notice, as was evident from the contents of his statement which discussed that job and not the other jobs canvassed in the Vocational Assessment Reports dated 15 May 2020 and 24 July 2020, being warehouse officer and stock clerk.
Section 79(2) of the 1998 Act provides that the notice must contain a concise and readily understandable statement of the reasons for the insurer’s decision and of the issues relevant to the decision. The notice dated 3 August 2020 clearly, and in several places, only refers to a transport and dispatch clerk as being suitable employment. I note that the respondent’s counsel when the objection was raised did state that he did not think anything would turn on this because the physical requirements of the jobs of warehouse officer and stock clerk were not more than that required to do work as a transport and dispatch clerk. Nonetheless he sought leave to raise this. Mr Bibawy’s counsel said this was in effect an application to amend the work capacity decision.
I found there would be prejudice to Mr Bibawy if the respondent was permitted to raise such other occupations at the hearing because his counsel advised that further evidence would need to be gathered about such jobs. This would necessitate an adjournment of the proceedings. There has been no explanation why the insurer did not refer to these other jobs in its work capacity decision or notify Mr Bibawy anytime since 3 August 2020 that, in addition to work as a transport and dispatch clerk, it has determined he could also undertake work as a warehouse officer and stock clerk.
However, it does raise an interesting point as it is an applicant who has the onus of proof and has to satisfy the legislative provisions in relation to his capacity for employment.
Ultimately, as will be seen from the reasons following in my decision, nothing really turned upon this argument between the parties because when assessing Mr Bibawy’s capacity for employment I have found that Dr Sturrock’s psychiatric opinion, that Mr Bibawy is unfit for employment, should be accepted. The evidence regarding Mr Bibawy’s psychological condition has not been challenged despite the respondent’s Dr Millons drawing the insurer’s attention to the fact that he has been having counselling since 2019, “there appears to be some compounding psychological issues” and that the doctor said he was not competent to comment on that. The insurer in making their work capacity decision did not take into account the evidence about Mr Bibawy’s psychological condition.

Work Capacity Decision

The WCD states that it is believed that Mr Bibawy has a current ability “to work in suitable employment identified below for 4 hour per day, 5 days per week”. Reference was made to section 43(1)(a) of the 1987 Act and that reliance was placed on certificates from Dr Giri dated 5 and 19 March, 19 and 22 April, 22 May, 2 June and 2 July 2020. Then under a heading in bold the following is stated:
“A decision about what is suitable employment for you
We have made a decision under section 43(1)(b) of the Workers Compensation Act 1987 and we believe that the following vocational options are suitable employment for you
·Transport and Dispatch Clerk

Suitable employment is employment for which you are currently suited considering your age, education, skills, work experience, current capacity for work and current work status regardless of whether the employment is available or the nature of your pre-injury employment: section 32A of the Workers Compensation Act 1987.
We rely on the Vocational assessment of SIS Rehab Pty Ltd which was conducted on 30/08/2019, 06/05/20, their report relating the assessment dated 3/10/2019, 15/05/2020 and 24/07/2020 a Labour Market Research report dated 24 July 2020, your nominated treating doctor’s approval of the vocational options provided on 11/06/2020, and the job seeking assistance and return to work training you have received from SIS Rehab Pty Ltd.
A decision about how much you can earn in suitable employment
We believe that you can earn $767.13 a week in suitable employment: Section 43(1)(c) of the Workers Compensation Act 1987. We rely on the Vocational Assessment and Labour Market Research Report of SIS Rehab Pty Ltd dated 24/07/2020 which showed that you could earn the following in the suitable employment options identified above:
·Transport and Dispatch Clerk - $800, $781.40 and $720.00 (Average of $767.13)

These are the averages of the three employers contacted for the suitable employment role identified.[1]”
[1] Reply pp1-3.

Mr Bibawy’s statements

Mr Bibawy is presently aged 49 years. He was born in Egypt and went to school there until he was 16. He then worked for his father who owned a workshop manufacturing leather products. Mr Bibawy’s duties varied and included looking after the stockroom, attending suppliers, taking orders, administration and supervision of workers. He came to Australia in 2011. After his arrival he commenced English classes but only completed ten sessions as he found work as a painter’s assistant. He did this work for a month and then was employed through recruitment companies and undertook such work as forklift driving and stock counting. In July 2012 he commenced work with the respondent and was made a permanent employee after three months. He worked as a plant technician.
In his statement Mr Bibawy describes the injury on 22 August 2018[2]. He also outlies his medical treatment. He says Dr Giri certified that he was fit for restricted duties and he was given the work as an exit operator which meant he had to operate machinery. The doctor certified restrictions on his duties such as no heavy lifting and being able to sit and stand as required and take rest breaks. Mr Bibawy says he could not do the work as an exit operator and so he was given work checking tanks. He said he did these duties until 22 August 2019 when the respondent told him they could no longer give him restricted duties.
[2] ARD p 2.
Mr Bibawy also mentions he has a congenital hearing problem and cannot hear very well in both ears and he cannot see well out of his left eye.
He says following the work injury on 22 August 2018 he suffered from pain in his lumbar spine, right buttock and the back of his right leg. He said after about three months he had pain in his right hip which became progressively worse. He says he also developed psychological problems for which he has been treated by Gilda Ogawa, psychologist, and
Dr David Sturrock, psychiatrist.
Mr Bibawy says he suffers from anxiety, impaired concentration, depression, poor memory and he becomes upset easily.
In relation to the insurer’s decision that he has capacity to work as a transport and dispatch clerk, he draws attention to the fact that when Dr Giri ticked the box that he could do this the doctor added “trial of these jobs advised, may have trouble with crouching, bending, squatting.” He also refers to the restrictions on Dr Giri’s certificates of capacity. I have summarised these below.
Mr Bibawy says he has been looking for suitable work with the assistance of the rehabilitation provider. He says he purchased a second-hand laptop and he has been undertaking a free online TAFE course in computer skills. Mr Bibawy says he has found this course slow going as his concentration span is short and he has memory problems. He also has difficulty as he does not have a wifi service.
At [18] of his statement Mr Bibawy sets out his understanding of the physical requirements of a transport and dispatch clerk, including sitting at a computer to do the clerical aspects, frequent walking and standing to check the stock, bending, squatting, lifting, repetitive movements and some forklift driving. He also lists the mental skills required. He adds that a primary job of a transport and dispatch clerk is to verifying incoming and outgoing shipments and to do this you have to scan a barcode on the good and you need to be able to bend down, squat, reach up and work in awkward spaces.
He refers to two positions identified in the respondent’s vocational assessment and expresses his view that he could not undertake such jobs due to his level of English skills and he doubts he could work in a high pressure environment or display sound mental skills which was a requirement with one recruitment company. He says the jobs identified do not take into account his psychological state as he suffers from low mood, insomnia, fatigue, poor concentration, poor memory and anxiety. He also suffers from panic attacks.
In a brief second statement dated 17 March 2021 Mr Bibawy comments on AMS Dr Weisz’s certificate wherein he referred to Mr Bibawy not needing an interpreter. He said Dr Weisz only asked him a few questions, but Mr Bibawy says he is not fluent in English and he needs the help of an Arabic interpreter for more complex interaction[3].
[3] AALD2.

Treating medical evidence

The medical evidence regarding Mr Bibawy’s capacity for employment is as follows:
(a)    Dr Giri, general practitioner, issued WorkCover NSW certificate of capacity dated 29 August 2018 referring to back injury and an adjustment disorder with depressed and anxious mood certifying Mr Bibawy as totally unfit.
(b)    Various Strategic Industry Solutions (SIS) reports, including dated 8 March 2019[4], 10 April 2019[5], and July 2019[6], deal with him working for the respondent on suitable duties. The reports note he was experiencing heightened back pain symptoms and that work duties caused flare up of symptoms and he was having to take days off work. In the report dated 27 September 2019 there is reference to Mr Bibawy’s specialist stating he is unfit due to pain, anxiety and depression[7].
[4] Reply p 42.
[5] Reply p 45.
[6] Reply p 53.
[7] Reply p 55.
(c)    Dr Sturrock, psychiatrist, reported to the insurer on 13 November 2019 that
Mr Bibawy was clinically depressed, having developed low mood, anxiety, and impaired concentration. Dr Sturrock prescribed Cymbalta[8]. In report dated 15 October 2020 Dr Sturrock diagnoses a chronic adjustment disorder or major depressive disorder due to the chronic pain from the work injury. He gives more detail regarding Mr Bibawy’s symptoms adding insomnia, no energy, poor concentration, poor memory, loss of interest, hopelessness, anhedonia, intermittent panic attacks and reduced social activity. At point 6 the doctor says Mr Bibawy is unable to work at all at present due to pain and depression, although he noted Mr Bibawy was keen to return to work[9]. The doctor noted that Mr Bibawy was seeing Ms Ogawa fortnightly and himself once a month and was prescribed Lexapro, Panadeine Forte and Mobic. The doctor said Mr Bibawy cannot work until his pain is better controlled and he agreed with Dr Giri that there should be a referral to a pain specialist.
[8] ARD p 74.
[9] ARD p 75.
(d)    Dr Giri was asked if Mr Bibawy could perform the work of a transport and dispatch clerk, warehouse administrator and stock clerk. The printed form required the doctor to tick approved or not approved and if he chose not approved then he had to give reasons for that opinion. However, Dr Giri on 11 June 2010 ticked approved against each of these jobs but then in the reasons stated, “trial of these jobs advised may have trouble with crouching/bending /squatting”. I note each job had these physical requirements listed as part of the job description[10].
[10] ARD p 26.
(e)    Dr Guirgis is Mr Bibawy’s treating orthopaedic surgeon who has provided reports dated 17 October 2018[11], 1 November 2018[12], 7 February 2019[13], 14 March 2019[14] and 13 June 2019[15] in which he diagnosed that Mr Bibawy had post traumatic mechanical derangement of the lumbar spine including a broad-based disc bulge at L3/4. Dr Guirgis stated that the CT scan shows a broad-based posterior disc protrusion extending to indent the thecal sac at L4/5 and L5/S1.
Dr Guirgis states that Mr Bibawy should avoid manual handling and repeated bending and twisting. In March 2019 Dr Guirgis referred to right L5 radiculopathy and that he was referred to Professor Davies and Mr Bibawy was experiencing hip pain. Throughout this time Dr Guirgis expressed the opinion that Mr Bibawy had a lifting restriction up to 5kg, sitting and standing within pain tolerance and time off during ultra-acute episodes.
[11] ARD p 77.
[12] ARD p 79.
[13] ARD p 80.
[14] ARD p 82.
[15] ARD p 83.
(f)    Dr Mark Davies, neurosurgeon, examined Mr Bibawy at Dr Guirgis’s request on 29 April 2019[16]. He diagnosed back pain secondary to discovertebral and facet joint arthropathy. He said the work injury rendered the degenerative process symptomatic. He recommended conservative treatment and that at that time
Mr Bibawy should continue working on light duties and he states that a progress to more physical duties would only be considered if there is a substantial or sustained reduction in pain.
[16] ARD p 103.
(g)    On 5 September 2019[17] Dr Guirgis noted Mr Bibawy could not tolerate bus rides and in the train he had to lie down to stretch his back. The doctor noted significant consequential symptoms of pain/ anxiety/depression/ failure to cope and he strongly recommended a referral to a psychiatrist. He said in his current state Mr Bibawy was unfit to work.
[17] ARD p 85.
(h)    On 12 December 2019 Dr Guirgis advised that Mr Bibawy had persistent severe left sided pain and stiffness involving the left side of his lower back and again he stated that Mr Bibawy was totally unfit to work[18].
[18] ARD p 86.
(i)    On 5 March 2020 Dr Guirgis refers to Mr Bibawy’s ongoing pain and says in his current state he should be considered to be permanently unfit for his full pre-injury duties and he lists various barriers including prolonged travel time, pain limitations, cognitive behaviours and other matters. However, Dr Guirgis does suggest that from a purely functional point of view suitable work should not involve heavy lifting, repeated bending, prolonged standing or prolonged walking. He recommended that Mr Bibawy undertake TAFE courses to find a suitable line of work and he could start with four hours a day, five days a week and then gradually increase depending on his pain tolerance[19].
[19] ARD p 87.
(j)    On 30 April 2020 Dr Guirgis clarified the above recommendation and said there should be no increase in hours until Mr Bibawy was actually in employment and they could see how he tolerated the recommended hours. He said any upgrade should be under the supervision of his general practitioner who could monitor his pain tolerance[20].
[20] ARD p 89
(k)    On 25 May 2020[21], 2 June 2020[22], 2 July 2020[23], 3 August 2020[24], 3 September 2020[25] and 7 October 2020[26] Dr Giri issued WorkCover NSW certificates of capacity stating Mr Bibawy has capacity to work four hours per day, five days per week with the restrictions noted by Dr Guirgis and under “other” he refers to office based duties.
[21] ARD p 131.
[22] ARD p 135.
[23] ARD p 139.
[24] ARD p 143.
[25] ARD p 147.
[26] ARD p 151.
(l)    In report dated 2 July 2020 to Mr Bibawy’s solicitors Dr Guirgis confirming his diagnosis of a lumbar spine injury and consequential right hip syndrome. He describes the ongoing symptoms and that Mr Bibawy has chronic pain, anxiety, frustration and failure to cope[27]. The doctor says Mr Bibawy is unfit for pre-injury duties and totally unfit to work at the present stage pending stabilisation of the current phase of symptoms and signs of chronic pain, anxiety and depression.
[27] ARD p 92.
(m)     On 13 August 2020 Dr Guirgis reported about Mr Bibawy’s symptoms during a rehabilitation assessment. He said he advised Mr Bibawy to accept any suitable job offer to him starting with four hours per day and within restrictions such as no heavy lifting more than 5kg or on repeated basis, no repetitive bending or side-twisting, no squatting/kneeling, standing limit of 20 minutes, sitting limit of 30 minutes, walking limit of 20 to 30 minutes, train travel up to 30 minutes, bus travel up to 15 minutes and no combined train and bus travel. Dr Guirgis says
Mr Bibawy is permanently unfit for pre-injury duties[28].
[28] ARD p 106.
(n)    On 15 October 2020 Dr Sturrock provided a report to Mr Bibawy’s solicitors. At point 6 he sets out in detail Mr Bibawy’s current symptoms as follows:
“Iow mood, insomnia, cannot sleep after 3am, fatigue, no energy, poor concentration, poor memory, loss of interest, hopelessness, anhedonia, reduced appetite, no suicidal ideation, weight stable, difficulty getting out of bed, anxiety, intermittent, panic attacks, chronic pain in his lower back and right hip and legs (constant with exacerbations), cannot lift more than a kilogram, cannot walk more than five minutes, pain wakes him up in the middle of the night, tearfulness, sometimes wishes he were dead. His social activity has reduced. He cannot give up smoking. He used to walk a lot but not now. He lacks social support. He is unable to work at all at present, due to pain and depression.[29]”
Dr Sturrock says he sees Mr Bibawy every month and he says he does not believe he can work again until his pain is better controlled, and he supports referral to a pain specialist.
(o)    On 31 October 2020 Dr Guirgis issued another report for Mr Bibawy’s solicitors, noting he had seen him on ten occasions, the last being 24 June 2020 in which he repeats the above assessment of Mr Bibawy’s capacity for suitable work[30].
(p)    On 23 February 2021 Dr Shetty, pain specialist, reported that Mr Bibawy had many features of persistent mechanical lower back and right hip pain. He adds there is a fair degree of centrally sensitised nociceptive pathways which is likely responsible for his pain, evolving into a chronic pain syndrome picture. He also noted that Mr Bibawy has a high degree of psychosocial stressors contributing to the worsening of his pain. He recommended a regime of treatment including Lyrica, Botox injections and Platelet Rich Plasma injections as well as physiotherapy. After this the doctor says Mr Bibawy would need consultations about pain psychological strategies[31].

Dr Millons
[29] ARD p 75.
[30] AALD1.
[31] AALD2

Dr Millons, orthopaedic surgeon, provided a medico-legal report for the respondent dated 1 October 2020[32]. He noted that Mr Bibawy’s command of English was reasonable, and he had no real difficulty obtaining a reasonably clear history from him. The doctor has a history about the work injury and the treatment that Mr Bibawy has had since that time. He also sets out his current complaints, examination findings and review of the file, including the radiological reports. He notes that Mr Bibawy has been having some counselling since November 2019, but Dr Millons says that he is not competent to comment on that. He states that Mr Bibawy may be experiencing a degree of trochanteric bursitis from altered gait from his lumbar injury. He describes that injury as an aggravation of multilevel constitutionally based attritional change.
[32] Reply p 10.
Dr Millons expects Mr Bibawy’s pain will continue and says there are some compounding psychological issues which he again says he is not competent to comment on. He agrees with the certificate of capacity to work four hours per day, five days per week in an office situation. He says he should avoid excessive bending, lifting more than 10kg or working in awkward or confined spaces. He adds that a semi-sedentary position in an office or store- based environment would perhaps be better for him. He comments on a vocational assessment of 3 October 2019 which assessed suitability for work as a crane, hoist or lift operator, excavator operator or machine operator. Dr Millons said he could do those jobs if they just involved sitting, operating machines, provided he could change his position as needs demanded. However, he adds that a semi-sedentary position in an office or store-based environment would perhaps be better for him. It is unexplained why Dr Millons does not comment on the vocational report of 24 July 2020 that the insurer relies upon and does not offer an opinion regarding employment as a transport and dispatch clerk.
Dr Millons finds Mr Bibawy is permanently unfit for his pre-injury duties.

Strategic Industry Solutions Reports

Vocational Assessment Report 3 October 2019

An initial vocational assessment report was issued by SIS dated 3 October 2019[33]. It is based upon the premise that Mr Bibawy is fit to work eight hours per day, five days per week within physical restrictions. It does note that during the assessment Mr Bibawy reported stress and mood changes, but it does not assess his psychological condition. It is noted he needs job seeking assistance. It identifies three occupations crane/hoist or lift operator, excavator operator and machine operator. The respondent did not assert in its Work Capacity Decision that Mr Bibawy could perform these roles.
[33] Reply p 24.
For completeness sake, I note that the report lacks utility because it pre-dates, by a considerable period of time, when the work capacity decision was made on 3 August 2020. The insurer in coming to that work capacity decision said that Mr Bibawy was fit to work four hours per day five days per week relying on certificates issued by Dr Giri from 5 March 2020 to 2 July 2020. Yet this vocational report, as noted above, it is based on the premise that
Mr Bibawy can work eight hours per day, five days per week. Furthermore, even a cursory consideration of the physical aspects of those jobs reveals that they have physical requirements beyond Mr Bibawy’s certification. Therefore, it is not surprising that the insurer did not rely upon this report when conducting its work capacity decision.

Vocational Assessment Reports 15 May 2020 and 24 July 2020

The Vocational Assessment Reports dated 15 May 2020[34] and 24 July 2020[35] seem to be identical in their contents. They both refer to a referral date of 4 May 2020. In the reports it is noted Mr Bibawy had basic spoken English skills and average to below average written English. He is able to speak and write in Arabic and can speak Italian. It is recorded that he has basic keyboard skills. He can send emails and browse the internet. It was noted that at that time he was certified as having capacity for employment for four hours per day, five days per week with physical restrictions such as a 5kg lifting limit and avoidance of repetitive lifting, 5kg pushing/pulling limit and avoid repetitive pulling/pushing. In addition, he was to avoid bending/twisting/squatting and sitting/standing was to be performed within his pain tolerance and to take time off during ultra-acute episodes. These reports note he feels stress, anxiety and upset due to the pain and the impact of the injury on his life. However, there is no reference to Mr Bibawy’s other psychological symptoms. It appears each employer that the rehabilitation provider contacted were not advised of any of his psychological symptoms.
[34] ARD p 29.
[35] ARD p 50.
The discussion with Ms Dave from Wynstan Blinds reveals a requirement for strong written and verbal communication skills, be self-motivated and ability to work under pressure. I find it is unlikely on the balance of probabilities that Mr Bibawy fulfills such criteria based upon
Dr Sturrock’s assessment and the comments by Dr Guirgis and Dr Millons that Mr Bibawy has ongoing psychological symptoms. Similarly, the discussion with Ms Fuller from Veritas Recruitment for a Dispatch Supervisor role requires the applicant to be a quick learner/ thinker, ability to thrive in a high-pressure environment and to be articulate and well spoken. Ms Le from Evic did not specify such attributes but she did list a high attention to detail and the ability to liaise with the warehouse/production manager. However, Mr Bibawy’s psychological symptoms were not discussed with Ms Le, or indeed with any of these prospective employers.

8 July 2020 Functional Capacity Report

In the Functional Capacity Report dated 8 July 2020 the author is aware that Mr Bibawy was certified by his doctors as having capacity for some employment for four hours per day, five days per week. However, the author of the report, who is not a doctor, based his assessment on the view that Mr Bibawy had capacity for eight hours, five days per week and decreased the restrictions that both Drs Giri and Guirgis stipulated. I find it is difficult to accept this report because the author is not a doctor. The report also does not take into account Mr Bibawy’s psychological condition. Furthermore, the author of the report found Mr Bibawy had an unlimited sitting tolerance, yet all that he observed was that he sat for 15 minutes during the pre-assessment interview, noting slight postural change with elbows on and off the table. I find there is a considerable difference for an injured worker sitting for 15 minutes and the reality of work during a shift in an office or sedentary position.
The author of the report did qualify this unlimited sitting tolerance finding by stating that
Mr Bibawy would need to take breaks every hour to stretch/ rest/ walk as required and he should change postural positions wherever required. Also, I note that it is recorded that
Mr Bibawy showed consistent performance and he reports consistent low back pain throughout the assessment. I find a significant short coming of the report is the failure to assess Mr Bibawy’s psychological condition.

AMS Dr Weisz

The assessment by AMS Dr Weisz dated 8 February 2021 says Mr Bibawy is receiving psychiatric treatment. The AMS noted that Mr Bibawy was quite fluent in English, however I accept Mr Bibawy’s statement that he was only asked simple questions. I find that the Vocational Assessment reports are likely to be more accurate in assessing his English skills in a work context. They found he has basic spoken English skills and average to below average written English. AMS Dr Weisz found radiculopathy from the lumbar spine injury and impairment of the right hip. He found 12% whole person impairment.

Respondent’s Submissions

The submissions of both counsel have been sound recorded, so I have not reproduced them verbatim below is a summary of the main points raised by counsel.
The respondent submitted that Mr Bibawy in his statement gives evidence about his employment history and that his work for his father in Egypt has given him an ability to do office type work and work that would come within the duties of a transport and dispatch clerk. He also submitted that Mr Bibawy has been able to do some TAFE course which shows some capacity.
The respondent submits there is no doubt that Mr Bibawy will suffer discomfort in his lumbar spine and right hip, but this is compensated under section 66. It was submitted that one cannot say because he has symptoms does not mean he cannot work in discomfort.
It was argued that the nature of a transport and dispatch clerk is essentially a clerical role. Counsel referred to his evidence about his English skills and submitted notwithstanding some issues he was still able to effectively work for the respondent.
It was submitted what is really causing his psychological state is that he is not working, rather than the other way around.
The respondent referred to the form that Dr Giri completed for SIS in which he ticked that he could undertake the work of a transport and dispatch clerk even though he said trial of these jobs and he may have trouble with crouching, bending and squatting. It was submitted that what “trouble” means is unclear and that if it is mere discomfort that is not relevant. It was also submitted that Mr Bibawy has not undertaken such a work trial.
The respondent submits that the Commission would have to prefer Dr Giri’s view about
Mr Bibawy’s physical capacity over that of Mr Bibawy’s opinion. It was submitted that there is no report from Dr Giri and this makes it more difficult for Mr Bibawy to advance a case that what Dr Giri recommends on the SIS form is not his opinion.
In relation to the reports from Dr Sturrock, the respondent submitted that the first report was not particularly helpful as it does not particularly deal with capacity. In relation to the report to Mr Bibawy’s solicitors, it was submitted that the comment he is unable to work due to his depression cannot be relied upon because Mr Bibawy stopped work because light duties were withdrawn, not because he was depressed. It was submitted the depression emerges because of the work ceasing.
The respondent submitted that much of Dr Guirgis’s opinion relates to causation and not relating to capacity. Later he submitted that Dr Guirgis in the report dated 31 October 2020 deals with capacity to work four hours per day five days per week and he submitted the return to work he advocates favours the respondent’s position.
The respondent’s counsel relied on Dr Millons’ opinion and conceded he said Mr Bibawy is not getting better. In relation to the doctor’s comment that Mr Bibawy has difficulty sitting, counsel submitted that he would have that anyway even if he was not working. Counsel noted that the doctor says Mr Bibawy could walk 20 minutes and it was submitted this would be the length of a warehouse. It was submitted that even though Dr Millons found Mr Bibawy’s back was stiff and irritable that does not mean he cannot work. Counsel noted that Dr Millons referred to him struggling accepting his position and it was submitted the best thing would be to get back into the work force. Counsel relied upon Dr Millons opinion that Mr Bibawy could work in an office or store- based environment and this would fit within the job of a dispatch clerk.
The respondent’s counsel accepted that work as a crane operator was not part of this dispute, but it was submitted that provided he could shift his position he could work as a crane driver. It was submitted that Dr Millons shows an awareness of what is involved in the pre-injury work and lighter work such as would be involved in a dispatch clerk.
In relation to Mr Bibawy’s second statement, the respondent submitted that Mr Bibawy could manage to give a history to the AMS with his level of English skills and this means even if he is not fluent in English, he could record in writing details in a warehouse about deliveries.
In conclusion it was submitted that the net effect of the evidence is that Mr Bibawy is a viable participant to go back to the workforce in the capacity of a clerk.

Mr Bibawy’s submissions

Mr Bibawy’s counsel rejects the respondent’s submission that Dr Guirgis opinion favours the respondent. She submitted that the doctor identified cognitive issues which goes to his psychological state. It was noted that Dr Guirgis refers to his fear in having to communicate and difficulty to maintain a regular timetable. It was submitted that Mr Bibawy deals with such matters in his statement.
It was submitted that the respondent’s submission that the job of a transport and dispatch clerk is basically a clerical job does not accord with the description of the role in the vocational assessments. It was submitted a lot of time is spent in the warehouse crouching to check where stock is located, and it is not just a normal clerical job.
It was further submitted that the respondent’s contention should be rejected that it is best for Mr Bibawy to go work and that his psychological symptoms started after the light duties were withdrawn. It was submitted that these submissions are not supported by the medical evidence. Dr Sturrock’s reports were relied upon and attention was drawn to his second report where he says the depressive symptoms started in late 2018 in response to chronic pain. It was submitted this was well before he was put off work which occurred in 2019. It was also submitted that this is the only psychiatric evidence before the Commission.
Counsel submitted that paragraph 6 of the second report of Dr Sturrock is highly relevant. I have reproduced this above. Counsel relies on the opinion that Mr Bibawy is unfit for any work and this opinion was given at a relevant time in October 2020. It was submitted this opinion is not challenged.
It was also submitted that the rehabilitation provider did not arrange any work trials and
Dr Giri had suggested there should be a work trial. It was submitted that Dr Giri says crouching, bending and squatting may be a problem, yet these types of movements are required in the job of a transport and dispatch clerk, particularly when inspecting goods. It was also submitted the medical certificates of Dr Giri have a lot of restrictions.
Furthermore, it was submitted that the dispatch clerk job has requirements for work experience that Mr Bibawy does not have, such as qualifications in logistics operations. It was also submitted that because Mr Bibawy does not have good English skills, he would not be able to do the clerical aspects of the work. It was argued just because he did work in a stock room in Egypt more than ten years ago, that would not translate to work on computers today.
It was submitted because of his psychiatric problems, coupled with his back pain, he would be most unlikely be able to work as a dispatch clerk. It was also argued that his pre-injury work did not equip him to have the skills to do this job.
Mr Bibawy’s counsel submits that the Commission should find that he has no capacity to do any work when the opinions of Dr Giri, Dr Guirgis and Dr Sturrock are taken together. It was submitted that there is no real job that would fulfil the requirement in suitable duties in section 32A and in particular the job of transport and dispatch clerk is not suitable employment. An award of 80% of the agreed PIAWE was sought. It was also submitted that Dr Shetty describes his current symptoms and he is not fit for work as a dispatch clerk.

Respondent’s submissions in reply

In relation to the onset of depressive symptoms, the respondent submitted that they have only manifested in the way they have with the withdrawal of suitable duties and if he had symptoms earlier, they did not prevent him doing light duties.
It was submitted as to the correct operation of section 32A it is important not to look at availability of work and the question is, what can the worker do not what job is out there to do.

Determination

In claims for weekly compensation as a starting point one needs to consider if the applicant has “no current work capacity” or a “current work capacity”.
The definitions of “current work capacity” and “no current work capacity” were moved from section 32A to schedule 3 of the 1987 Act by the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act). There is no change in these definitions.
“No current work capacity” is defined to mean:
“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.”
“Current work capacity” is defined as “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”.
“Suitable employment” is defined in section 32A of the 1987 Act as follows:
“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 WorkCover 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.”

Sections 35, 36 and 37 of Division 2 of Part 3 of the 1987 Act provide the mechanism for calculating an injured worker’s entitlements to compensation for the first 130 weeks.
As Mr Bibawy has received as at approximately 30 March 2021 103 weeks of weekly compensation his ongoing claim is calculated with reference to section 37, which provides:
“37 Weekly payments in second entitlement period (weeks 14–130)

(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:

(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:

(a) (AWE × 95%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.”
“D” is the value of non-pecuniary benefits paid by the employer. In Mr Bibawy’s case this is nil. “E” is the greater of the amount that a worker can earn in suitable employment or the worker’s current weekly earnings. “AWE” means the worker’s pre-injury average weekly earnings.
In Wollongong Nursing Home Pty Ltd v Dewar[36] Roche DP explained how the determination of an injured worker’s entitlement to weekly compensation differed after the 2012 amendments and that care needed to be taken when relying on older authorities. This is because section 32A of the 1987 Act eliminates a consideration of whether work is “available” and whether it is “of a type or nature that is generally available in the employment market”.
[36] [2014] NSWWCCPD 55, Dewar.

However, as Roche DP pointed out the first question to ask is whether a worker has a “current work capacity” or “no current work capacity”. As he explained at [47],
“A ‘current work capacity’ is an ‘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’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.”
In Dewar Roche DP found at [58]:
“‘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’ (emphasis added).”
In Mr Bibawy’s case I find that the evidence is overwhelming that he cannot return to his pre-injury employment. All the doctors support such a conclusion. The significant issue is whether he can return to work in suitable employment.
There has been considerable focus on Mr Bibawy’s physical restrictions. However, he also relies on a secondary psychological condition. He was referred by his treating orthopaedic surgeon for psychiatric care. He has regularly undertaken psychological treatment and sees Dr Sturrock monthly. He has been diagnosed as having a chronic Adjustment Disorder or Major Depressive Disorder. Dr Sturrock as recently as October 2020 has provided an extensive list of Mr Bibawy’s psychological symptoms. This evidence is not challenged.
Mr Bibawy is taking Lexapro as well as analgesic medication, but Dr Sturrock recommends referral to a pain specialist and he states quite clearly that Mr Bibawy cannot work again until his pain is better controlled. The pain specialist report is very recent from Dr Shetty and it is clear that the treatment has only commenced several weeks ago, and it involves multifaceted treatment. While Dr Shetty does not advise regarding Mr Bibawy’s capacity for employment, I am persuaded by Dr Sturrock’s opinion that it would be premature to find Mr Bibawy has capacity for employment.
As I have stated the first step is to consider if Mr Bibawy has no current capacity for employment. I find that not only has he no capacity to return to his pre-injury duties, he has no current capacity for employment in suitable duties.
The first aspect of the definition of suitable employment is a consideration of the nature of his incapacity. This involves considering all the medical evidence including Dr Giri’s certificates and the opinion of Dr Guirgis, both of whom believe he could perform four hours per day, five days per week. If there was not the psychological condition, I would have accepted
Mr Bibawy had such a physical capacity. However, his physical restrictions coupled with his psychological condition have led me to conclude that at the present time, and indeed since the time of the work capacity decision, that Mr Bibawy has no current capacity for employment.
Hopefully for his sake that situation will change as he undertakes the treatment recommended by Dr Shetty and with further psychiatric and psychological counselling. At present however, I find that his incapacity is such that he has no current capacity for employment.
I reject the respondent’s submissions that Mr Bibawy’s psychological condition only started after his light duties were withdrawn. On 29 August 2018 Dr Giri diagnosed he had an adjustment disorder with depressed and anxious mood. The respondent also submitted that he nonetheless could do the suitable duties with the respondent and they reason for his current symptoms was likely due to the loss of work. I accept the submission of Mr Bibawy that the respondent has no medical evidence upon which to support such a submission and that Dr Sturrock clearly refers to the ongoing pain and Mr Bibawy’s inability to deal with that as causative factors to his psychological condition.
Having found that Mr Bibawy has no current work capacity, it is not necessary to deal further with the parties submissions. However, for completeness sake, I find the submissions of Mr Bibawy’s counsel persuasive regarding whether the job of a transport and dispatch clerk is suitable employment. I find that Mr Bibawy’s past employment and educational history have not equipped him with experience in logistics. I do not accept the respondent’s submission that the work Mr Bibawy did for his father in Egypt many years ago has given him such skills. I am also not satisfied he has the written English skills that the respondent stated in its submissions. Just because he could be understood by Dr Weisz does not mean he has written clerical skills to work as a dispatch clerk. At [34] above I have referred to some of the requirements by the employers to whom SIS spoke and I am not satisfied that Mr Bibawy has the attributes, skills and training that they require. I do not accept the respondent’s counsel’s characterisation of this job as only involving basic clerical skills, ticking boxes on a form. I also do not accept the respondent’s submission that the physical restrictions and pain Mr Bibawy experiences just amounts to “discomfort”, and that it is relevant that he would also experience this as well at home. I consider based upon the job descriptions in the vocational report that there are physical requirements in the job of a transport and dispatch clerk such as crouching or bending to check goods that Mr Bibawy could have difficulty performing. It also seems apparent to me that Dr Giri, when ticking the form about this job, was expressing doubts because he said there needed to be a trial of such work because of his concerns about physical aspects such as crouching and bending. As Mr Bibawy’s counsel submitted the respondent did not arrange for such a work trial.
Accordingly, Mr Bibawy’s entitlement falls under section 37 (1) of the 1987 Act at 80% of his pre-injury average weekly earnings. This figure was agreed at $1,013.22
I order that the respondent is to pay Mr Bibawy weekly compensation from 23 March 2021 to date and continuing at the rate of $1,013.22 per week.

Josephine Bamber
PRINCIPAL MEMBER

27 April 2021