Booth vTech2Home (Communications) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Booth vTech2Home (Communications) Pty Ltd [2022] NSWPIC 573
APPLICANT:	Christopher John Booth
RESPONDENT:	Tech2Home (Communications) Pty Ltd
Member:	John Isaksen
DATE OF DECISION:	17 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and medical expenses; whether the effects of the work injury to the lower back had ceased; whether the worker has no current capacity or has an ability to earn in suitable employment; reference to Wollongong Nursing Home v Dewar and Popal v Myer Holdings Pty Ltd; Held – the worker continues to suffer the effects of the work injury; the worker has an ability to earn in suitable employment; award of weekly payments pursuant to section 37(3) of the Workers Compensation Act 1987; the respondent to pay the worker’s reasonably necessary medical expenses for treatment for the injury to the lower back.
DETERMINATIONS MADE:	1. The applicant continues to suffer the effects of an injury to his lumbar spine which was sustained while in the course of his employment with the respondent on 28 July 2020. 2. The applicant has had a partial incapacity for work since 22 April 2021 as a result of an injury sustained to his lumbar spine, thoracic spine and cervical spine in the course of his employment with the respondent.
determinations made:	1. The respondent is to pay the applicant weekly payments of compensation pursuant to s 37(3) of the Workers Compensation Act 1987 as follows: (a) $1,091.70 per week from 25 January 2022 to 31 March 2022; (b) $1,115.70 per week from 1 April 2022 to 30 June 2022; (c) $1,100 per week from 1 July 2022 to 30 September 2022, and (d) $1,148.60 per week from 1 October 2022 to date and continuing. 2. The respondent is to pay the reasonably necessary medical expenses incurred by the applicant for treatment for injury to his lumbar spine.

STATEMENT OF REASONS

BACKGROUND

The applicant, Christopher John Booth, sustained an injury to his lower back on 28 July 2020 while employed as a field supervisor for the respondent, Tech2Home (Communications) Pty Ltd.
Mr Booth claims that he was lifting a gatic lid to access a pit with another worker. He estimates the lid to have weighed between 140 and 170kg. Mr Booth claims that he fell forward with the weight of the lid and felt immediate pain in his lower back.
The respondent accepted the claim of injury made by Mr Booth and Mr Booth was paid weekly payments of compensation until 24 January 2022.
The insurer of the respondent, icare, issued a dispute notice on 2 December 2021 wherein it determined that Mr Booth was no longer incapacitated for work or entitled to the payment of medical expenses as a result of the injury of 28 July 2020. That was based upon an opinion of Dr Casikar that the aggravation of a pre-existing degenerative disease in Mr Booth’s lower back which was caused by the incident on 28 July 2020 had ceased.
Mr Booth claims that he continues to suffer the effects of the work injury and continues to be incapacitated for work. He makes a claim for weekly payments of compensation from 25 January 2022 and the payment of medical expenses by the respondent for treatment for the injury to his lower back.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the Mr Booth continues to suffer the effects of the work injury sustained in the course of his employment with the respondent on 28 July 2020 (s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b)    the extent of any incapacity suffered by Mr Booth as a result of an injury to the lower back (ss 32A, 33 and 37 of the 1987 Act), and
(c)    whether the respondent is liable for reasonably necessary medical treatment for the injury to the lower back (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a conference and hearing on 5 October 2022. 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.
Mr Beran appeared for Mr Booth, instructed by Mr Miereles. Mr Young appeared for the respondent, instructed by Ms Corry.
The hearing was conducted by video in accordance with protocols set by the Commission as a result of the coronavirus pandemic.
An order seeking payment of future treatment for specialist consultations, general practitioner consultations, medical management and physiotherapy pursuant to s 60 (5) of the 1987 Act was discontinued at the commencement of the hearing. Mr Booth instead sought a general order pursuant to s 60 for the payment of medical expenses for treatment of his lower back injury.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,770 as at 24 January 2022 when weekly payments were terminated.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

FINDINGS AND REASONS

Whether the applicant continues to suffer from the effects of the injury to his lower back which was sustained on 28 July 2020

The applicant’s evidence

Mr Booth states in a statement dated 23 May 2022 that he continues to experience moderate pain and discomfort in his lower back with intermittent pain down his right leg.
Mr Booth states that he has difficulty in sitting, walking and driving for extended periods. He states that he has difficulty carrying out normal work and domestic duties. He states that he has interrupted sleep.

The medical evidence

Mr Booth was referred to Dr Hsu, spine surgeon, in February 2021, and Mr Booth saw Dr Hsu on at least seven occasions during 2021.
Dr Hsu did not offer any surgery to relieve Mr Booth’s symptoms and recommended pain management. In his final report dated 12 December 2021, Dr Hsu writes that he had seen Mr Booth for ongoing back pain, but that Mr Booth was showing signs of improvement and was waiting on further treatment from the pain management team.
Mr Booth initially saw Dr Ramachandran from PainMed on 19 August 2021 by audiovisual link. Dr Ramachandran wrote to Dr Hsu stating that for Mr Booth “pain does impact his overall function”, and recommended assessment by a Triage Assessment Team from PainMed.
A Triage Assessment report from Dr Ciucanu, rehabilitation physician, Ms Wride, pain physiotherapist, and Ms Munday, psychologist, was provided on 4 November 2021, wherein it states:
“Mr Cristopher Booth is a pleasant 38 years old man with a long history of lumbar pain originating in a work place injury, for which he had extensive conservative treatments over the last 1.5 years. He continues to have chronic lumbar pain with extension to his right lower limb and some elements of neuropathic pain, which impact on his mood and function up to the point that domestic tasks, driving, personal relationships, leisure activities and employment have been significantly affected.”
Mr Booth’s general practitioner, Dr Tiwari, has provided a report dated 30 June 2022 wherein she writes that she last saw Mr Booth on 13 November 2021 and that he mentioned he was still symptomatic with back pain.
The clinical notes from Dr Tiwari’s practice from the date of the injury to 28 January 2022 are in evidence. Those notes record persistent complaints of low back pain by Mr Booth over that 18 month period.
Dr Fitzsimons, neurologist, has provided reports at the request of Mr Booth’s solicitors dated 7 May 2022 and 21 June 2022.
The consultation for the report dated 7 May 2022 was conducted by Zoom. Dr Fitzsimons writes that she interpreted a positive nerve stretch test of the right leg when Mr Booth bent forward while sitting. She makes a diagnosis of Mr Booth having L4/5 and L5/S1 disc protrusions with impingement on the right L4 and left S1 nerve roots.
Dr Fitzsimons opines:
“I relate all necessary treatment to the subject accident because there is no evidence of any symptomatic back disease before the accident, and little reason to suppose that he would have more degenerative changes than are common in his age group. The degenerative changes seen on the scans were not at all unusual for his age. It is clearly the disc protrusion(s) and internal derangement which are the likely cause of nerve root impingement and symptoms.”

Dr Casikar, neurosurgeon, has provided reports at the request of the respondent dated 6 October 2021 and 17 November 2021.
The consultation for the report dated 6 October 2021 was conducted by “Telehealth Consultation”, although it is apparent from the report that Dr Casikar could visualise Mr Booth. Dr Casikar records that Mr Booth had difficulty walking on his heels and toes, and that Mr Booth could flex his back up to 30 degrees. He writes that Mr Booth was not voluntarily exaggerating his symptoms.
Dr Casikar records that the radiologist who reported on an MRI scan taken in December 2020 concluded that there is marked age-related degenerative disease at the L4/5 and L5/S1 space.
Dr Casikar opines that Mr Booth appears to have had a soft tissue aggravation on a pre-existing degenerative disease of the lumbar spine and that:
“Mr Christopher’s condition was an aggravation of a pre-existing degenerative disease and in my opinion this aggravation has ceased.”

Determination

Dr Hsu, Dr Tiwari and Dr Ramachandran all record Mr Booth having ongoing lower back pain in the latter part of 2021. A rehabilitation physician, pain physiotherapist and psychologist have all had the benefit of examining Mr Booth and accept that he continues to have chronic lumbar pain.
Dr Casikar observes that Mr Booth was not voluntarily exaggerating his symptoms. Dr Fitzsimons records signs consistent with Mr Booth having low back pain, even though the examination is conducted by Zoom.
The weight of medical evidence therefore supports a finding that Mr Booth has continued to suffer pain and limitation of movement in his lower back since the injury he sustained on 28 July 2020.
There is no credible medical evidence to support an argument that the effects of that injury have now ceased. I agree with the submission made by Mr Beran on behalf of Mr Booth that Dr Casikar simply makes a bald assertion that the aggravation of a pre-existing degenerative disease as a result of the work injury has now ceased, without providing any explanation for that opinion.
That opinion from Dr Casikar is in marked contrast with the opinion of Dr Fitzsimons. Dr Fitzsimons does provide a plausible explanation as to why pathology in Mr Booth’s lumbar spine is likely to be a consequence of the work injury, being that there is no evidence of any symptomatic back disease before the incident at work and that the degenerative changes seen on the scans are not unusual for Mr Booth’s age group.
I also agree with the submission made by Mr Beran that there appears to be no basis for Dr Casikar accepting that the radiologist who reported on the MRI scan in December 2020 had concluded that Mr Booth had marked age-related degenerative disease at the L4/5 and L5/S1 space.
The MRI scan report dated 17 December 2020 reports “mildly degenerative” facet joints, but it does not report any marked degenerative change or disease. A previous MRI scan report dated 27 August 2020, which Dr Casikar does not refer to, records mild degenerative changes and mild facet joint arthritis at the L5/S1 level. Dr Casikar refers to a bone scan dated 25 February 2021 which reports “no definite degenerative changes in the lumbar spine.”
I accept that specialists with appropriate expertise can view scans and form their own opinion for the purposes of clinical judgement, but there is no indication that Dr Casikar has viewed the scans, but rather is merely reading the accompanying reports.
The difference between Mr Booth having marked degenerative change in his lumbar spine as opposed to mild changes which are consistent with his age is important because it marks a fundamental difference between the opinions reached by Dr Casikar and Dr Fitzsimons.
I am satisfied that Mr Booth does continue to suffer from the effects of the injury he sustained to his lower back on 28 July 2020 when the opinion of Dr Fitzsimons is added to the consistent records of lower back pain made by Mr Booth’s treating doctors, and that evidence is then compared to the presumption of marked degenerative change in the lumbar spine made by Dr Casikar, which I consider is open to doubt, and the lack of an adequate explanation from Dr Casikar as to why he considers the ongoing effects of the injury have ceased.

The claim for weekly payments of compensation

The medical evidence

There are several entries made by Dr Tiwari between 5 August 2020 and 16 October 2020 of Mr Booth working from home following his work injury.
Dr Tiwari records on 5 August 2020: “on patient’s request, allowed 4 hours/day of online work from home for 1 week.”
Dr Tiwari records on 24 August 2020 that Mr Booth is finding it difficult to work from home due to access to the work computer system.
Dr Tiwari records on 23 September 2020: “back is getting better” and “happy to continue working from home, as he is more productive than before.” A record is made that Mr Booth will now work six hours per day for five days per week.
Dr Tiwari records on 30 September 2020 that there has been significant improvement in Mr Booth’s sitting tolerance and can now work full time at home. Dr Tiwari also records that Mr Boot is worried about getting pain when driving.
Dr Tiwari records on 16 October 2020: “working 8 hours from home everyday and doing fine.”
Dr Tiwari records on 11 November 2020 that Mr Booth “got made redundant” when the respondent lost a NBN contract.
Thereafter the clinical notes from Dr Tiwari appear to record a deterioration in Mr Booth’s low back condition compared to the optimism recorded in the first few months following the work injury. For instance, Dr Tiwari records on 17 December 2020: “Christopher reported more discomfort in lower back.” Dr Tiwari records on 10 February 2021 that Mr Booth is having pain “spreading across my lower back.” Dr Tiwari records on 14 July 2021: “capacity reduced to 5 hours/week for now.”
Dr Tiwari writes in her report dated 30 June 2022 that the last certificate she provided was that Mr Booth was fit for suitable duties for three hours per day for five days per week. She states that this certificate was for a period from 16 December 2021 to 13 January 2022.
Dr Tiwari writes:
“Christopher had some concerns about the possibility of pain getting worse if he returned to work and also anxiety around driving more than 10 to 15 minutes, which in turn led to him declining all employment opportunities suggested by the employment consultant.”
Dr Tiwari also writes that contact should be made with Dr Hsu regarding Mr Booth’s capacity for work. No opinion from Dr Hsu regarding Mr Booth’s capacity for work has been made available in this dispute.
Dr Ramachandran writes in his report dated 19 August 2021 that Mr Booth’s pain impacts his overall function, and that Mr Booth is unable to get back to work due to his pain.
The ‘Physiotherapy’ section of the Triage Assessment report dated 4 November 2021 includes the following:
“In conclusion, Mr Booth's work-related injury has impacted significantly on his physical function and he has been unable to return to work in any capacity. He is keen to work toward a RTW and committed to attending the Aspire Pain Programme with this longer term goal in mind.”
The respondent did not dispute during the hearing that Mr Booth was not able to commence the Aspire Pain Programme following the denial of ongoing liability made by the respondent in the dispute notice issued on 2 December 2021.
In her first report dated 7 May 2022, Dr Fitzsimons records that the only work that Mr Booth has done since the injury was “some work when he lay in bed at home and worked on his laptop.”
In her second report dated 21 June 2022, Dr Fitzsimons opines that Mr Booth would be considered totally incapacitated for any physical work which places strain on his back. She opines:
“Some clerical administrative work would be possible if he had the freedom to move at will in a self-employed capacity, but I understand that the opportunities for such work would be likely to be very limited if he did not have the ability to undertake some physical activities in the field.”
Dr Casikar opines that Mr Booth is fit to resume his pre-injury duties as far as the work injury is concerned. However, he considers that an immediate return to work would be futile given Mr Booth’s pain-related issues and previous history of depression and Mr Booth should go through a regular pain management program as suggested by Dr Ramachandran before Mr Booth gets back to his pre-injury duties. Dr Casikar concludes:
“Based on my examination Mr Booth is fit to resume normal hours of suitable duties with a weight restriction of 10kg. However, considering Mr Booth’s significant pre-existing emotional factors and psychosocial issues unless he goes through a standard pain management program, I think a return back to work straight away would not be successful.”
Dr Casikar also opines:
“In my opinion with adequate support from the pain management program he should be able to do normal hours of pre-injury duties with a weight restriction of 5kg initially which can gradually be increased depending upon his response.
Unless his pain-related factors are adequately addressed, the probability of him getting back to any kind of employment is very difficult.”
In his second report dated 17 November 2021, Dr Casikar writes that he does not believe Mr Booth’s pre-existing psychological problems and the degenerative disease are related to his work injury, but that a pain management program might help Mr Booth get back to a suitable job.

A summary of submissions

Mr Beran submits that a review of all the medical evidence reveals that Mr Booth’s condition has been, and still is, dominated by his experience of pain. That experience of pain is so pervasive that from a practical point of view, Mr Booth has had no current work capacity since 25 January 2022 because there are no real jobs which he is currently suitable for.
Mr Beran points out that there has been no return to work plan provided by the respondent, which is a consideration in determining whether Mr Booth can engage in suitable employment. Furthermore, the pain management program which was recommended by Dr Casikar to assist Mr Booth in a return to the workforce was cancelled when ongoing liability was denied by the respondent.
Mr Young for the respondent concedes that Mr Booth cannot return to his pre-injury employment or other jobs which involve physical work. However, he submits that having regard to the medical evidence, Mr Booth is capable of doing most of the pre-injury duties which are set out in his own evidence, such as supervising workers, ordering equipment and resolving customer complaints.
Mr Young points out that Mr Booth was able to work from home for a period of over three months soon after he sustained his work injury, and that he had been able to build up to full time work. Mr Young submits that there is no explanation provided in the evidence as to why Mr Booth is no longer fit for any form of suitable employment, when he had been able to undertake administrative work from his home. Nor is there any explanation for the deterioration in Mr Booth’s condition recorded by his treating doctors after he was made redundant in November 2020.
Mr Young submits that Mr Booth’s evidence of having a Certificate III in telecommunications, of having been self-employed in the telecommunications industry for five years prior to his employment with the respondent, and of having performed the pre-injury duties which he has listed in his statement, means that Mr Booth’s capacity to earn in suitable employment should not be as an entry level employee, but should reflect a rate of pay for a skilled employee. Mr Young has suggested a capacity to earn of $45 per hour.

Mr Young submits that Mr Booth is fit for 20 to 30 hours of work per week having regard to the work which Mr Booth did for the respondent for some months after the work injury and the totality of the medical evidence.

Determination

“Current work capacity” and “no current work capacity” are set out in cl 9 of Schedule 3 of the 1987 Act as follows:
“(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.”
Section 32A of the 1987 Act includes a definition of “suitable employment” 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.”
Mr Booth’s claim that he has no current work capacity is based upon his claim that his pain is so pervasive that he cannot engage in any employment at all. However, when Dr Tiwari last provided a certificate in December 2021, she certified him fit for three hours per day for five days per week.
Considerable weight needs to be afforded to the opinion of Dr Tiwari because she has seen Mr Booth on a regular basis from the time of his injury until at least the end of 2021. She has had the benefit of monitoring his condition over an 18 month period, and she has observed and responded with treatment recommendations to fluctuations in her patient’s condition.
Irrespective of any reason for an apparent deterioration in Mr Booth’s condition during 2021 and after Mr Booth was made redundant, Dr Tiwari considered that Mr Booth was fit for 15 hours of work per week around the time that his workers compensation benefits were terminated.
Dr Fitzsimons considers that Mr Booth can possibly do some clerical administrative work and does not place any restrictions on the amount of hours each week that Mr Booth could perform such work. I agree with a submission made by Mr Young that Mr Booth does not need to be self-employed to be able to be engaged in the suitable employment which Dr Fitzsimons considers Mr Booth could possibly perform. A person employed in clerical or administrative work usually has some ability to move the body on a regular basis, which is the primary concern identified by Dr Fitzsimons.
Dr Fitzsimons also appears to assume that any potential work that Mr Booth might be suitable for must involve an element of “physical activities in the field”, whereas many, if not most, clerical and administrative jobs are restricted to work at a desk in an office or factory.
Both Dr Ramachandran and the authors of the Triage Assessment report state that Mr Booth has been unable to get back to work due to his pain. However, those experts have not undertaken an actual assessment of Mr Booth’s work capacity. The application of ‘suitable employment’ in a particular dispute does not involve a consideration of whether an injured worker can get a job, but instead whether an injured worker can perform a particular job. That question has not been addressed by those experts in their reports.
Dr Casikar is pessimistic about Mr Booth’s prospects of returning to work and Mr Beran understandably emphasised that opinion during his submissions. However, Dr Casikar’s opinion on Mr Booth’s work capacity in his first report varies between an opinion that Mr Booth “would not be successful” on a return to work straightaway unless he undertakes a pain management program, to it being “very difficult” to get back to work unless pain-related factors are addressed.
In his second report, Dr Casikar appears to lessen the strength of that earlier opinion even further when he opines that pain management might help Mr Booth to get back a to a suitable job.
I agree with the submission made by Mr Young that while Dr Casikar’s outlook for Mr Booth’s potential return to the workforce is bleak, it does not necessarily amount to a conclusion that Mr Booth has no work capacity at all.
I prefer the opinion of Dr Tiwari on the issue of Mr Booth’s work capacity because, as I have already observed, Dr Tiwari has had the benefit of monitoring Mr Booth’s condition since his work injury, and she has observed and responded to fluctuations in his condition. The clinical notes from Dr Tiwari reveal that she oversaw Mr Booth’s return to some administrative work which was undertaken by him at his home soon after his work injury. Dr Tiwari also considers that Mr Booth can work for three hours per day for five days per week, even though she is aware of some anxiety that Mr Booth has regarding his pain if he did return to work.
I have a preference for the opinion of Dr Tiwari when that is placed against the limitations which I have noted in the reports of other experts.
Mr Beran argues that a determination as to whether Mr Booth has any work capacity must be made based upon Mr Booth’s circumstances now and not what was occurring two years ago. However, I agree with the submission made Mr Young that there is no explanation for the deterioration in Mr Booth’s condition recorded by his treating doctors over the ensuing two years after Mr Booth was made redundant, nor whether any such deterioration is due to the work injury sustained by Mr Booth.
Furthermore, for reasons I have already given, Dr Tiwari is in the best position to opine on Mr Booth’s capacity because of her consistent treatment and review of Mr Booth, and she certified that Mr Booth was fit for 15 hours of work per week at the time a decision was made to terminate his weekly benefits of compensation at the end of 2021.
Mr Booth has not provided much information regarding his work experience prior to his commencement of employment with the respondent in 2019. Mr Booth states that he completed Year 12. He states that he has a Certificate III in telecommunications. He states that he ran his own business in the telecommunications industry for five years. The ordering and scheduling the delivery of equipment, the management of work schedules, and the investigating and resolving customer complaints, which are duties that Mr Booth lists as part of his work for the respondent, involves work of an administrative nature.
I conclude from the limited information that has been provided by Mr Booth regarding his past work experience and educational history that he would have the skills, abilities and aptitude to at least perform menial clerical or administrative work.
The clinical notes from Dr Tiwari also record that Mr Booth worked from his home for the respondent for at least three months following the work injury. Mr Booth was unable to continue with this work at home for the respondent because his position was made redundant. Mr Booth does not provide a reason for his position being made redundant, but Dr Tiwari notes that it was due to the respondent losing a NBN contract.
The decision in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) is often referred to by representatives of injured workers, as it was in submissions made by Mr Beran in this dispute, that it is necessary for there to be an identification of ‘real jobs’ that an injured worker can do. However, DP Snell in Popal v Myer Holdings Pty Ltd [2020] NSWWCCPD 32 (Popal) said that Dewar must be read in the context of that particular dispute when he said at [51]:
“The reference to ‘real jobs’ in the above passage needs to be read inlight of the issues being argued in Dewar. The employer had supplied light work to the worker that consisted of a job that was made up for the purpose of supplying suitable duties. The employer argued this demonstrated an ability to perform ‘suitable employment’ for the purposes of s 32A, regardless of whether an employer exists who would provide that work. The Deputy President rejected the employer’s argument on this point; work that was ‘not real employment or work that was potentially available in the labour market at large’ was not ‘suitable employment’.”
There is no evidence from either Mr Booth or the respondent that the work which Mr Booth performed at his home for three months after his work injury was what DP Snell in Popal called at [53] “a made up job.” Mr Booth was undertaking this work at home at the very time that thousands of employees across the nation were doing work required of them at home due to the coronavirus pandemic.
The skills which Mr Booth does possess and his proven ability to undertake administrative work from home means that I am satisfied that he can at the very least undertake menial clerical and administrative office work. There are real jobs which still require basic administrative tasks such as collating, photocopying, attending to mail duties, reception work, and keying in information on a computer.
However, I do not accept the submission made by Mr Young that the skills which Mr Booth possess would mean that he is able to earn at a level of $45 per hour. I have accepted that Mr Booth is able to undertake menial clerical or administrative work, but he is at a distinct disadvantage of being able to earn any more than the award rate for such a position given that he has been out of the workforce for some two years now.
I also do not accept the submission made by Mr Young that Mr Booth is fit for 20 to 30 hours of work per week. All of the experts which I have referred to have expressed a concern regarding Mr Booth’s ongoing experience and response to his lower back pain. While I have not accepted that this has caused Mr Booth to have no work capacity at all, it does limit his ability to return to the workforce.
The recommendation by Dr Tiwari of Mr Booth working for three hours per day for five days per week appears to reflect a reasonable balance between an acknowledgement by Dr Tiwari that Mr Booth is able to undertake some work, but also the concerns that Dr Tiwari, Dr Fitzsimons and Dr Casikar have regarding the difficulties Mr Booth will have on returning to work.
The award rate under the Clerks – Private Sector Award 2020 for a level 1 employee, whose duties include maintaining basic records, reception duties, filing and copying documents, and basic keyboard work, was $21.62 per hour up until 30 June 2022. Thereafter, it has been $22.67 per hour.
I find that Mr Booth has had the ability to earn $324.30 per week in suitable employment up until 30 June 2022, and $340 per week from 1 July 2022, based on an ability to work in such suitable employment for three hours per day for five days per week and which is in accordance the recommendation of Dr Tiwari.
PIAWE was agreed at $1,770 as at 24 January 2022. Eighty per cent of PIAWE amounts to $1,416. I have calculated increases to PIAWE as provided for by s 82A of the 1987 Act to be:
(a) $1,800 from 1 April 2022, and
(b) $1,860.70 from 1 October 2022.
Eighty per cent of $1,800 amounts to $1,440. Eighty per cent of $1,860.70 amounts to $1,488.60.
There will be an award made in favour of Mr Booth for the payment of weekly benefits of compensation as follows:
(c)    $1,091.70 per week from 25 January 2022 to 31 March 2022;
(d)    $1,115.70 per week from 1 April 2022 to 30 June 2022;
(e)    $1,100 per week from 1 July 2022 to 30 September 2022, and
(f)    $1,148.60 per week from 1 October 2022 to date and continuing.

The claim for medical expenses

I have provided reasons as to why I consider that Mr Booth continues to suffer the effects of the injury he sustained to his lumbar spine on 28 July 2020.
There should therefore be an order that the respondent is to pay the reasonably necessary medical expenses for treatment for the injury to the lumbar spine.

[2022] NSWPIC 573

17 October 2022