Broughton v MJB Engineering Services Pty Ltd
[2022] NSWPIC 88
•22 February 2022
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Broughton v MJB Engineering Services Pty Ltd [2022] NSWPIC 88 |
| APPLICANT: | Jacob Michael Broughton |
| RESPONDENT: | MJB Engineering Services Pty Ltd |
| PRESIDENT’S DELEGATE: | Kathryn Camp |
| DATE OF DECISION: | 22 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Work capacity dispute; whether the applicant was able to work in “suitable employment”; section 32A of the Workers Compensation Act 1987; Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505; Paric v John Holland Constructions Pty Ltd [1985] HCA 58 applied; Held– applicant has no current work capacity; award for the applicant for weekly payments of compensation. |
| DETERMINATIONS MADE: | 1. The applicant has no current work capacity. 2. The respondent is to pay the applicant weekly benefits of compensation pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $1,496 (as indexed from time to time), for the period 1 December 2021 and ongoing. The respondent is to have credit for all payments of weekly compensation made to date, because of the application of s 298B of the Workplace Injury Management and Workers Compensation Act 1998. |
INTERIM PAYMENT DIRECTION
STATEMENT OF REASONS
INTRODUCTION
This matter concerns a dispute relating to a Work Capacity Decision which determined that the applicant worker’s entitlement to weekly payments of compensation would reduce for reason that he is able to undertake suitable employment within the meaning of s 32A of the Workers Compensation Act 1987 (the 1987 Act). For the reasons discussed below, the applicant’s claim for compensation is successful.
BACKGROUND
From 2008, Michael Broughton, the applicant worker, worked as a boilermaker for his father’s business MJB Engineering Services, the respondent.
The applicant developed pain in his forearms, hands and back in the course of employment for the respondent. Overtime the applicant’s pain in his hands steadily became worse. His hands would become swollen and cramp. The applicant later underwent carpel tunnel release surgery, under the hand of Dr Asher Livingston, orthopaedic surgeon, on 5 February 2020.
The respondent accepted the applicant’s injury and made payments of compensation, including weekly payments of compensation.
On 19 August 2021, iCare issued a Notice of Decision pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to the applicant that his weekly payments would be reduced to $618.58 from 1 December 2021. The reason for the decision was based on the following factors:
(a) the applicant is currently able to work in suitable employment as a real estate assistant for 7.6 hours per day, five days per week;
(b) Dr Frank Simonson, the applicant’s treating general practitioner, issued a Certificate of Capacity on 10 June 2021, confirming capacity to work eight hours per day, five days per week with restrictions. This capacity has been maintained since 7 December 2020;
(c) the applicant’s pre-injury hours of employment with the respondent were 7.6 hours per day, five days per week;
(d) the role of real estate assistant is suitable employment within the meaning of
s 32A of the 1987 Act. In support, the respondent relies on:(i)the labour market research completed by AMP on 23 April 2021;
(ii)applicant’s completion of the Real Estate Certificate of Registration Course on 2 April 2021 via Think Real Estate, and
(iii)Dr Simonson’s endorsement of capacity to perform duties as a real estate assistant, on 4 December 2020 (which is not available on the evidence).
(e) the applicant has capacity to work as a real estate assistant and earn $877.42 per week.
On 10 November 2021, iCare issued a further s 78 notice confirming its original decision. ICare, amongst other things, relied on the Certificate of Capacity issued by Dr Simonson on 9 November 2021, confirming the applicant’s ability to work eight hours per day, five days per week with restrictions. It referred to Dr Simonson’s Certificate of Capacity dated 8 November 2021, noting that the applicant had no current work capacity from 8 November 2021 – 8 December 2021. ICare stated that after failed attempts to contact Dr Simonson, it engaged Dr Ian Smith to conduct an Injury Management Consultation – File Review. It further records that:
“In his report dated 9 November 2021, Dr Smith confirmed contact was made with Dr Simonson on 9 November 2021 who advised that [the applicant] attended his practice stating that EML Workers Insurance was trying to force you back to your pre-injury duties as a Metal Fabricator and as a result of the same, you now had a swollen right wrist. Dr Smith informed Dr Simonson that this not incorrect given that EML Workers Insurance recently made a work capacity decision based on your capacity to work as a Real Estate Assistant. Dr Simonson therefore advised that he felt that he had been given the wrong information from you and opined that you are fit to perform the role of a full time Real Estate Assistant. As such, Dr Simonson has re-issued a SIRA Certificate of Capacity on 9 November 2021 confirming that you are you are able to work 8 hours per day, 5 days per week, with a lifting, pushing / pulling capacity of 5 kg, whilst you have an unlimited ability to sit, stand, bending / twist and squat.”
On 24 November 2021, iCare issued a Notice of Review Decision pursuant to s 287A of the 1998 Act. The original decision to reduce weekly payments of compensation was confirmed.
On 26 November 2021, the applicant lodged an Application for Expedited Assessment (Form 1) (Application) claiming weekly benefits where a work capacity decision is in dispute.
On 2 December 2021, the respondent lodged a Reply to the Application.
On 10 December 2021, the applicant lodged an Application to Admit Late Documents.
PROCEDURE BEFORE THE COMMISSION
On 13 December 2021, I convened a telephone conference to resolve the dispute. The applicant attended the telephone conference, with his solicitor Mr Stephen Legzdin of AC Lawyers Nowra. The respondent was represented by its solicitor Mr Michael Twemlow of Lee Legal Group.
The parties were unable to reach a resolution of the dispute and provided oral submissions during the telephone conference. The parties were informed of my intention to determine the dispute following the telephone conference.
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 to bring the parties to the dispute to a settlement. 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.
ISSUES
The parties agreed during the telephone conference that the following issues remained in dispute:
(a) whether the applicant has capacity to work in suitable employment, having regard to the accepted injury, and
(b) whether the applicant has capacity to work in the role of a real estate assistant, having regard the meaning of suitable employment under s 32A of the 1987 Act.
There was no dispute as to the following matters:
(a) the applicant resided in the State of NSW at the date of filing of the present application and when the dispute arose, and, therefore, the matter is not federally impacted pursuant to s 26 of the Personal Injury Commission Act 2020;[1]
(b) the AALD lodged by the applicant on 10 December 2021 is admitted, by consent;
(c) the applicant’s pre-injury average weekly earnings is $1,850 (indexed at $1,870), and
(d) the applicant is not able to return to his pre-injury employment.
[1] Ritson v State of New South Wales [2021] NSWPIC 409.
EVIDENCE
The following documents were in evidence before me and have been considered in determining this dispute:
(a) Application, and attached documents;
(b) Reply, and attached documents, and
(c) Application to Admit Late Documents, and attached documents.
Applicant’s statement
In evidence is a statement prepared by the applicant, dated 24 November 2021. The applicant states that he finished school before completing year 12, and immediately worked with his father as trade assistant working at Argon Australia. In 2008, the applicant commenced his apprenticeship as a boilermaker, with the respondent. The applicant described this work as “physically heavy” and requiring a “lot of manual handling and lifting”.
The applicant states that he began to regularly develop pain in his forearms, hands and back. He states that he would always bounce back after a day or so. However, overtime he found that the pain in his hands steadily became worse and did not recover. His “hands would become swollen and would cramp up”. He states that his partner, Cassandra Patrick would often have to massage his hands and forearms to get the blood flow back to try to assist with the swelling.
The applicant also states that he was concerned and attended his general practitioner. He stopped working at that point and lodged a claim for compensation, with the injury deemed to have occurred on 22 July 2019.
The applicant further states that he saw Dr K Rajesh and Dr Livingston for treatment and further investigation. On 5 February 2020, the applicant underwent carpel tunnel release at the hand of Dr Livingston.
Six months post-surgery, the applicant states that, he attempted a return to light duties. He states that he tried to “do some welding and lasted less than 20 minutes due to increased pain”. He did not return to work.
The applicant records that he underwent some studies. He completed a course in real estate but did not complete his studies to be a TAFE teacher in boiler making. He states that he struggled with that latter course and was unable to complete it. He states that:
“The course was described as a ‘speed course’ with a lot of fast computer transfer work. I have not really used computers and have little experience with them. I am also dyslexic and struggled to keep up as I have to take my time to read things slowly otherwise, I can’t take in what I am looking at. I have never been a good speller.
I also found that after 10 minutes of using a keyboard my hands would swell up and become sore.
…
What helped me [with] parts of the real estate course was the online parts that I could work through at my own slow pace. Cassie was also able to help me in some areas when needed.”
The applicant further states that his hands have steadily declined since the surgery. He states that in “some way my hands feel worse as any simple ordinary flare up will cause great pain”.
The applicant adds that his certificate of capacity “was changed to some capacity, but it was only for the purposes of allowing me to undertake the course work for retraining”.
The applicant also adds that at “the company I am merely an employee, and I performed a management role”. It was the intention that he would ultimately take over the company from his father.
The applicant claims that if he tries to undertake simple tasks he experiences increased pain and swelling in his hands. He explains that, on 7 November 2021, he attempted to put in five screws into existing screw holes which would not require any force or strength. He adds that after doing so his right and left hand began to swell and he attended on his general practitioner. He states that his general practitioner, Dr Simonson amended his certificate of capacity to no capacity.
The applicant further adds that Dr Simonson issued a further Certificate of Capacity that he was capable of returning to work eight hours a day, five days per week with restrictions. The applicant contends that this certificate was issued in the absence of a consultation or further examination by Dr Simonson. The applicant states that he later called Dr Simonson about the medical certificate:
“He told me he was contacted by the insurer and an investigator (whom I later discovered in the later section 78 notice that I received – was Dr Smith – who has never examined me). I was upset and confirmed after he raised it that I had never said that the insurer was pushing me to return to welding duties. Dr Simonson also informed me that it was suggested to him in the conference that any flare up I was having was because I was renovating my house. A subsequent section 78 notice was issued dated 9 November 2021. The notice makes no reference to me renovating may house, yet the insurer had no hesitation to raise something which was untrue to persuade my GP to alter my certificate of capacity. Any reference to house renovating being the cause of my ongoing disability was omitted from the subsequent section 78 notice which is just another example of the duplicitous nature of the insurer. I would not have become aware that this had been suggested by the insurer had my doctor not raised it with me. This is the subject of a formal complaint to IRO and SIRA.”
The applicant states that his house is undergoing some minor renovations but that he is not performing the work. He tries to provide some little assistance where he can but it is “minimal as even simple activities cause flare ups”.
Cassandra Patrick
In evidence is a statement from Cassandra Patrick, dated 6 December 2021. In that statement, Ms Patrick states that her home was undergoing some renovations but that the applicant has not been able to help because of his condition. She also states that she completed “all forms” for the applicant as part of the insurer arranged courses. She refers to the applicant’s dyslexia and ADHD but notes that the applicant does not take medication for the latter. She further states that she “proofread and correct[ed] [the applicant’s] Facebook posts otherwise no one would understand them”. She added that she assisted the applicant with typing to complete the real estate course, because “[a]fter just 10 minutes of typing, he would be in agony”.
Vocational evidence
In evidence are several reports by APM, including an initial assessment report dated 16 June 2020, vocational assessment report dated 16 September 2020, labour market research report dated 23 April 2021, and independent Jobseeker checklist dated 29 July 2021. There is also a SIRA Vocational Program report dated 16 December 2020.
In the vocational assessment report, it records the applicant’s education and training, and employment history. In respect of education and training, relevantly, it records that the applicant completed secondary schooling to Year 11. It also recorded that the applicant “reported to have a below average level of literacy. Whilst he can read and write the English language to a basic level, he noted that he finds this difficult”. It further recorded that the applicant noted that as a child he was diagnosed with Dyslexia and ADHD and attributes his struggles with reading and writing to these conditions. In respect of employment history, it records a history of manual labour predominately as a welder/fabricator from 2008-2009 and since 2016 and a security guard from 2009 to 2016.
In the labour market research report, it records the applicant’s then restrictions. It identifies the role of a real estate assistant as a vocational option. It sets out the tasks performed by a real estate assistant to include clerical tasks such as accepting and listing properties for sale and lease, advises on sales and marketing options, catalogues and details land, building and business for sale or lease, and, amongst other things, offers valuations and collects and holds rent monies from tenants. It also sets out the physical requirements of the role, including frequently sits, stands and walks frequently about the office, stretches/twist/climb not significant components of the job, squatting/crouching/bending will be unnecessary, lifting/carrying is not significant, repetitive movements are unlikely to be necessary except when using a computer keyboard to enter data or type text, amongst other things, driving may be required. It further identifies that a candidate will be vocationally ready for this occupation at entry-level by completing a National Certificate in Real Estate. It further provides the pay rate of a real estate assistant provided from three prospective employers.
In the SIRA Vocational Program, it is recorded that a return to work goal or offer of employment is for the applicant to participate in retraining completing a “Cert IV in training and assessment” and “real estate training” to ensure he is able to obtain employment.
Think Real Estate
In evidence is a Statement of Attainment from Think Real Estate certifying that the applicant completed a Certificate IV in Real Estate Practice on 2 April 2021.
Other evidence
In evidence is an email from an iCare claims officer to an Independent Review Office officer dated 25 November 2021. In that email it records: the applicant “…displayed capacity by driving upwards of 3-4 hours to and from Canberra to attend a specialist review whilst he too suffered a laceration to his left wrist which required surgery…”.
Medical evidence
Dr Simonson
In evidence are Dr Simonson’s clinical notes of consultation with the applicant. In the clinical notes recorded for 15 December 2020, Dr Simonson records “[r]epeat workup certificate on the basis of 40 study hours per week on the recommendation of the insurance company”.
On 12 October 2021, Dr Simonson issued a referral letter to Associate Professor Christopher Roberts, orthopaedic surgeon. In that referral letter Dr Simonson notes that the applicant has “been reasonably well until about 5 months ago when he developed sensory impairment in both hands and in the wrist…Further nerve conduction studies have been performed which are normal. He records increasing pain and diminished function in both hands”. He adds that the applicant has “…had a neurological review recently and no obvious cause for the current symptoms can be found. He has been seeing [Dr] Livingston who has recommended that a further hand surgical review might be appropriate to exclude something more serious”.
On 8 November 2021, Dr Simonson issued a referral letter to Dr Geoffrey Markov. In that referral, Dr Simonson records that the applicant is suffering from increasing pain in both hands making it extremely difficult to perform physical tasks involving either hand. He notes that the applicant’s current certificate certifies the applicant able to perform eight hours of work five days per week but “when this was issued this was to allow him to undertake study and not to return to work as a metal fabricator”. He noted that a further certificate has been issued for no further work until the matter is further resolved with specialist review.
On 9 November 2021, Dr Simonson had a telephone conversation Dr Ian J Smith, Injury Management Consultant, qualified by iCare. In evidence is a record of that conversation:
“Telephone consultation with Dr Ian Smith who is an occupational physician working with the insurance company. I have explained to Ian that [the applicant] was certified unfit for any duties because he has increased swelling in his right hand which is the result of working in prescription using a screwdriver as a metal fabricator. [The applicant] had informed me that he was required to return to duties as a metal fabricator by the insurance company despite the fact that he has been retrained as a real estate assistant. Ian also advised that [the applicant] had been driving to and from Canberra and had been renovating his house. In the light of these circumstances it is certainly possible that he could work as a real estate assistant which is the desire of the insurance company. I have agreed to reissue the certificate in those terms provided there is only light work performed which would be expected in the real estate industry.”
In evidence is a medical report, undated, from Dr Simonson to the insurer. In that report, Dr Simonson responds to questions raised by the respondent insurer. In response to a question to comment on what led to the downgrade in capacity on 8 November 2021, Dr Simonson said:
“On 8 November 2021 [the applicant] presented with increasing pain in both hands making it difficult to perform physical tasks. His right hand was noticeably swollen compared to the left hand.
…
[The applicant] advised that he had previously been certified fit to perform duties of 8 hours a day 5 days a week because he was undertaking study to be able to work in an industry other than as a metal fabricator.
[The applicant] advised that the insurance company had insisted that he work as a metal fabricator. Given the physical nature of this work it would clearly be exacerbating his wrist pain and swelling. That is the reason, on that occasion, he was certified unfit for duties until further information was made available by the specialist.”
In response to a question regarding reasoning for the applicant’s ongoing level of incapacity, Dr Simonson said:
“I had not been made aware of any activities including a home renovation is performed by [the applicant] until I had a case conference with your representative Dr Ian Smith.
It was Dr Smith who advised me that [the applicant] was performing home renovations and driving extensively. It was Dr Smith who confirmed that [the applicant’s] recent admission to hospital following a knife injury, was the result of home renovations. When I later spoke with [the applicant] he confirmed he had been cutting carpet at the time.
After speaking with Dr Smith I immediately change[d] the Workcover certificate back to what it was previously. It was Dr Smith who informed me that the insurance company had never insisted that [the applicant] return to work as a metal fabricator. They were attempting to obtain employment for him as a real estate assistant.”
In response to a question seeking a “justification for certifying [the applicant] with no current work capacity”, Dr Simonson said:
“[a]t the time of writing this report [the applicant] has been certified fit for duties. As
I had been led to believe that the insurance company was insisting on his return to work as a metal fabricator, he was certified as unfit for this type of work. He can of course perform other duties for which she [sic, he] has been trained.”
Dr Ronak Patel
On 27 August 2021, Dr Ronak Patel, consultant neurologist, issued a report dated 27 August 2021. In that report, Dr Patel records a history of the applicant’s injury and increase in symptoms four to five months ago, “where they have started to get progressively worse”.
Dr Patel records the symptoms reported by the applicant to include, tingling and pins and needles in his hands, symptoms “up to the wrists bilaterally and sometimes go up to the elbow joint”. He also records numbness in the fingers bilaterally and reduced grip strength, noting it is painful for the applicant to undertake “fine motor skills”. He further records the applicant reported skin discoloration.
Dr Patel records that nerve conduction study was normal. Under the heading “[i]mpression and [m]anagement”, Dr Patel records:
“[The applicant] presents with hand symptoms in the form of paresthesias and arthralgias. I have organised him to have ultrasound of the wrist and autoimmune test including inflammatory markers. At this stage, the presentation is unusual for carpal tunnel syndrome or any peripheral neuropathy and there was no evidence of neuropathy on the nerve conduction studies.
I wonder whether he has underlining rheumatological condition or possible chronic regional pain syndrome. I shall discuss the results with him once available.”
In a further report dated 29 September 2021, Dr Patel, reviewed the ultrasound results. Having reviewed those results, which he stated was “unremarkable”, Dr Patel opined that “[a]t this stage, I do not have an explanation for [the applicant’s] symptoms”.
Dr Asher Livingston
On 11 October 2021, Dr Livingston issued a report. In that report, Dr Livingston recorded that “[a]t this stage the underlying cause of [the applicant’s] symptoms remains unclear and subsequently I will not be offering him a repeat carpal tunnel release at this time”. Despite the absence of clear pathology, Dr Livingston recommended that the applicant could benefit from a formal review with a rheumatologist and a second opinion from another Hand and Upper Limb Surgeon in Canberra (Dr Chris Roberts or Dr Maurizio Damiani).
In that report, Dr Livingston also records:
“In terms of work, [the applicant] reports being unable to do any of his normal duties and there should be an allowance for this from Workcover until [the applicant’s] symptoms are fully investigated.”
Dr Geoff Markov
On 14 October 2021, Dr Geoff Markov issued a report recording a history that 12 months after surgery the symptoms recurred in both hands “and these were pretty much identical to the previous symptoms”. He notes nerve conduction tests showed there was no longer any electrophysiological evidence of median nerve compression and other diagnostic test were non-contributory. He also records that the applicant described “being only able to type for about 15 minutes at a time on a keyboard before his fingers become swollen, painful and cramping, and he has to stop; the symptoms often wake him at night and in the early hours of the morning”.
In the report, Dr Markov queried whether the applicant “actually had symptomatic carpal tunnel syndrome prior to the surgery” and said that many patients have electrophysiological features without having symptoms of carpal tunnel. He recommended that the applicant undergo an ultrasound guided steroid injection to the right carpal tunnel.
Associate Professor Christopher Roberts
On 28 October 2021, Associate Professor Christopher Roberts, orthopaedic surgeon, issued a report dated 28 October 2021. In that report, Associate Professor Roberts recorded that on examination there was a “global reduction of sensation in [the applicant’s] whole hand bilaterally”. He refers to a repeat nerve conduction study which was normal. He said that he was not convinced that the applicant’s current symptoms were due to carpal tunnel syndrome. He was not sure why the applicant had continuing wrist pain and sensation in his hands. He adds that he is “unconvinced by the sensory change or weakness, which doesn’t fit with median nerve problems”. He was unable to provide a diagnosis. He suggested further investigation to exclude mechanical problems in the wrist.
Dr Ian J Smith
In evidence is an IMC File Review report, prepared by Dr Ian J Smith, Injury Management Consultant dated 9 November 2021. In that report, Dr Smith records a history of the applicant’s injury and symptoms. He also records a discussion had with Dr Simonson. The report concludes to find that the applicant is “perfectly fit to work in that role”, namely, the role of a real estate assistant.
Medical certificates
In evidence are several SIRA certificates of capacity/certificate of fitness issued by Dr Simonson. Of relevance are the following certificates:
(a) certificate dated 5 July 2021, certifying the applicant to have capacity for some type of work from 18 June 2021 to 18 September 2021 for eight hours per day, five days per week. Under the heading “comments” the following: “[a]s per instructions of Dr Livingston orthopaedic surgeon”;
(b) certificate dated 13 October 2021, certifying the applicant to have current capacity for some type of work from 18 September 2021 to 18 November 2021 for eight hours per day, five days per week. Under comments it records “[n]o physical work as a metal fabricator”;
(c) certificate dated 8 November 2021, certifying the applicant to have no current capacity for any work from 8 November 2021 to 8 December 2021. It records under “comments” the following: “[a]s per instructions of Dr Livingston orthopaedic surgeon”, and
(d) certificate dated 9 November 2021, certifying the applicant to have current capacity for any work from 18 November 2021 to 18 January 2022, for eight hours per day, five days per week. It records under “comments” the following: “[t]o work only in employment without physical duties such as real estate for which he has been trained”.
Future medical appointments
In evidence are two emails to the applicant’s solicitor, confirming future appointments scheduled for the applicant to see Dr Graeme Doig and Dr John Bentivoglio.
SUBMISSIONS AND DISCUSSION
The applicant and respondent provided oral submissions during the telephone conference which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.
Cassandra Patrick’s statement
The respondent submitted that I should not accept aspects of Ms Patrick’s statement evidence or that it should be given little weight, because it contains hearsay. The applicant objected to the respondent’s submission and asserted that the statement contains evidence of Ms Patrick’s observations of the applicant.
The Personal Injury Commission (the Commission) is not bound by the rules of evidence.[2] Indeed, the Commission is to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.[3]
[2] Personal Injury Commission Act 2020, s 43(2).
[3] PIC Act 2020, s 43(3).
I accept that there may be aspects contained in Ms Patrick’s statement which is hearsay. However, the statement contains direct observations of the applicant which is relevant to the issues in dispute and whether the role of a real estate assistant is suitable employment within the meaning of s 32A of the 1987 Act. To the extent that the statement contains hearsay, I have approached those extracts of the statement with caution.
Whether the applicant has capacity to work in suitable employment, having regard to the accepted injury
Whether the applicant has capacity to work in the role of a real estate assistant, having regard to the meaning of suitable employment under s 32A of the 1987 Act
The parties addressed the above two issues together. That is, firstly the applicant’s physical capacity to undertake suitable employment. Namely, whether I should accept Dr Simonson’s Certificate of Capacity of 9 November 2021 in preference to the Certificate of Capacity of 8 November 2021. Secondly, whether the applicant has capacity to work in the role of a real estate assistant, and, whether that role is “suitable employment” within the meaning of that phrase under s 32A.
Applicant’s submissions
The applicant asserted that the Certificate of Capacity dated 8 November 2021, should be preferred over the Certificate of Capacity dated 9 November 2021. The applicant submits that the certificate dated 8 November 2021, is the document that should be “relied on as evidence of his incapacity and the incapacity while his condition and flare up of symptoms is being further investigated”. The applicant submits that “there are certainly some issues that Dr Simonson clearly gets wrong and a view that he has taken which is not in relation to what [he] has either said or any party has said to him”. The applicant asserts that Dr Simonson notes that he is suffering from increased pain in both hands making it extremely difficult to perform physical tasks with his hands, has had a review with his rheumatologist and is due to undergo a planned steroid injection in his hands (which has not happened).
The applicant refers to the consultation note of the telephone conversation between Dr Simonson and Dr Smith. The applicant asserts that two facts were put to Dr Simonson by Dr Smith that were incorrect. Firstly, the reason for recent flare up is due to work as a metal fabricator. The applicant submits that he did not return to work as a metal fabricator and that he attempted to put in screws into predrilled holes and his hands flared up, which is consistent with flaring up for minor activity which is similar to that of using a keyboard. Secondly, that the applicant had been driving to and from Canberra to undertake home renovations which is incorrect. The applicant was not asked for any input before Dr Simonson’s reversed his decision and this goes to the very heart of whether there can be any faith in respect of the subsequent medical certificate because it has been issued on a “false premises” and on the basis of false information. The applicant submits that these matters are subject of complaint with the Independent Review Office.
The applicant referred to the definition of “suitable employment” under s 32A of the 1987 Act. The applicant submitted that it relied on the Certificate of Capacity of 8 November 2021 in respect of the nature of incapacity. In terms of age, education, skills and work experience, the applicant referred to the degree of dyslexia and reading skills as set out in his statement and his partner’s statement. His experience has been limited to welding work, since he left school. While he has a certificate in real estate, working in an office environment will be somewhat difficult not only will his hands flare up but also his dyslexia and limited reading and writing skills. At the present time, the role of a real estate assistant is not suitable employment.
Respondent’s submissions
The respondent refers to s 32A of the 1987 Act. The respondent submits that the applicant retains a residual working capacity. The key issue is whether the applicant can perform the duties of a real estate assistant under s 32A. The respondent refers to the Presidential decision of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWCCPD 55.
The respondent relies on the evidence of Dr Simonson. The respondent submits that Dr Smith and Dr Simonson both certified that the applicant was fit for suitable duties. In the Certificate of Capacity dated 16 March 2020, the applicant was fit for suitable duties eight hours per day, five days per week with restrictions. That certification continued up until March 2021. The respondent relies on the latest certificate of capacity which provides that the applicant is fit for suitable duties 8 hours/5days per week with restrictions as a real estate for which he has been trained. The applicant does not rely on any qualifying evidence to support that he has no capacity for suitable employment. The respondent submits that the medical evidence does not speak to the applicant’s alleged dyslexia as prohibiting his employment.
In terms of age, education, skills and experience. The applicant has been a welder and boilermaker for most of his life. The respondent submits that the applicant would be able to transition to duties of real estate assistant. The respondent is relatively young, being 31 years of age. The respondent also relies on the statement of attainment of Think Real Estate, confirming completion of a Certificate in Real Estate.
The respondent further submits that the applicant has had the appropriate education under guidance of ATM rehabilitation service provider. A vocational education program was submitted under s 53 of the 1998 Act that certified that the applicant participate in retraining which included the completion of the Certificate in Real Estate which was undertaken. The respondent also relies on the vocational evidence of the labour market research report, which refers to the duties of the role and the pay rate.
The respondent submitted that it was open to find role of real estate assistant is suitable employment.
Consideration
A dispute concerning a worker’s work capacity requires consideration of whether the work has “current work capacity” or “no current work capacity” for “suitable employment” within the meaning of those phrases under the 1987 Act. The meaning of these phrases has been interpreted and applied in many decisions, and, in particular, Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWCCPD 55.
“Current work capacity” and “no current work capacity” is defined under cl 9 of Sch 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.”
“Suitable employment” is defined under s 32A of the 1987 Act as follows:
“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.”
Medical Certificate
I accept the applicant’s submissions, that I should not give weight to Dr Simonson’s latest Certificate of Capacity, dated 9 November 2021 certifying that the applicant has current capacity to undertake suitable employment eight hours per day, five days per week. For the reasons set out below, I prefer Dr Simonson’s earlier certificate, dated 8 November 2021, certifying that the applicant has no current work capacity.
I accept that Dr Simonson has provided an explanation for why he revised his opinion on capacity on 9 November 2021. Firstly, it is clear that he revised his opinion largely on the basis of a conversation he had with Dr Smith, where he was informed that the applicant had been undertaking home renovations and driving to Canberra. Secondly, it also appears that Dr Simonson’s opinion on capacity was also formed in-part on the basis that the applicant allegedly asserted that the insurance company insisted that he work as a metal fabricator and that the applicant’s recent swelling in his right hand was a result of working as a metal fabricator. In the consultation notes, Dr Simonson records that it was in light of those circumstances (facts), which were largely informed by Dr Smith, that “it is certainly possible that [the applicant] could work as a real estate assistant which is the desire of the insurance company”. Dr Simonson adds that “I have agreed to reissue the certificate in those terms provided there is only light work performed which would be expected in the real estate industry”. In the undated letter to the insurer, Dr Simonson also states that “[a]fter speaking with Dr Smith I immediately change[d] the Workcover certificate back to what it was previously”.
There is a dispute about those above facts, in particular, whether the applicant undertook home renovations and drove to Canberra. In particular, it is unclear how Dr Smith obtained those facts, before informing Dr Simonson of them, and whether the veracity of those facts may be confirmed. Firstly, in respect of the renovations, in the applicant’s statement evidence, the applicant states that the assertion that he was renovating his house was “untrue” and that he is not performing the work. He states that he provides “some little assistance” but it is “minimal as even simple activities cause flare ups”. The applicant’s statement evidence is confirmed by Ms Patrick’s statement evidence. Secondly, the evidence indicating that the applicant drove to Canberra is unsupported. Indeed, it is unclear why the applicant would drive to Canberra. The evidence suggests that he allegedly drove to attend a specialist appointment for his left wrist after sustaining a laceration. It is unclear why the applicant would drive a distance of 3-4 hours to attend a specialist review, while recovering from a laceration which required surgery. Thirdly, it is not disputed that the applicant did not return to work as a metal fabricator and the applicant’s recent flare up was not a result of working as a metal fabricator.
In these circumstances, there are several questions around the adequacy of the factual foundation on which Dr Simonson revised his medical opinion on capacity on 9 November 2021. Firstly, I am not satisfied that Dr Simonson was provided a completely accurate history of the applicant’s activities and functional capabilities. Secondly, that the applicant may have undertaken renovations or drove to Canberra is clearly the overwhelming reason for Dr Simonson’s change in opinion on capacity. Whether or not those facts are true cannot be satisfactorily reconciled on the evidence. However, the evidence weighs in favour of those facts being false or in-part false. Thirdly, it is difficult to reconcile Dr Simonson’s recent evidence on capacity with the overwhelming medical evidence that demonstrates the applicant’s ongoing symptoms, planned treatment and investigations. It is for these reasons, I am not satisfied that the facts put to Dr Simonson, which formed the basis of the revised medical certificate, represents a “fair climate” for the opinion which he expressed.[4]
[4] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505, 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58.
The available evidence consistently records ongoing symptoms in the applicant’s hands for several months prior to August 2021, which is similar, if not identical, to the previous symptoms he experienced. The applicant states that his symptoms in his hands have steadily declined since surgery. He states that he tries to undertake simple tasks but experiences increased pain and swelling in his hands. This is corroborated by the medical evidence which records a consistent history of reporting of symptoms in the hands:
(a) in an undated report from Dr Simonson to the insurer, it is recorded that on 8 November 2021 the applicant presented with “increasing pain in both hands making it difficult to perform physical tasks. His right hand was noticeably swollen compared to the left hand”;
(b) on 27 August 2021, Dr Patel, reports a history of increase in symptoms four to five months ago. He records symptoms of pins and needles in the applicant’s hands, numbness in the fingers and reduced grip strength, pain when undertaking “fine motor skills”;
(c) on 11 October 2021, Dr Livingston records that the applicant reports being “unable to do any of his normal duties and there should be an allowance for this from Workcover until [the applicant’s] symptoms are fully investigated”. He recommended a formal review with a rheumatologist;
(d) on 12 October 2021, in a letter of referral to Associate Professor Christopher Roberts, Dr Simonson records that the applicant’s symptoms had changed five months earlier with “increasing pain and diminished function in both hands”;
(e) on 14 October 2021, Dr Markov reports a history of recurring symptoms 12 months post-surgery. Dr Markov records that these symptoms “were pretty much identical to the previous symptoms”. He recommended that the applicant undergo an ultrasound guided steroid injection to the right carpal tunnel. He also recommended that the symptoms be “fully investigated”;
(f) on 28 October 2021, Associate Professor Christopher Roberts, recorded a “global reduction of sensation in [the applicant’s] whole hand bilaterally”. He recommended investigation to exclude mechanical problems in the wrist;
(g) on 8 November 2021, in a letter of referral to Dr Markov, Dr Simonson records that the applicant is suffering from increasing pain in both hands making it extremely difficult to perform physical tasks involving either hand, and
(h) on 9 November 2021, in the telephone consultation notes recording the conversation between Dr Simonson and Dr Smith, Dr Simonson records that he certified the applicant “unfit for any duties [on 8 November 2021] because he has increased swelling in his right hand”.
I accept that the applicant was previously certified fit for suitable employment for eight hours per day five days per week prior to the certificate of 8 November 2021. However, consistent with the applicant’s statement evidence, the medical evidence supports that this certification was made for the purposes of study. In his clinical notes, dated 15 December 2020, Dr Simonson records “[r]epeat workup certificate on the basis of 40 study hours per week on the recommendation of the insurance company”. Dr Simonson also states in his referral letter to Dr Markov dated 8 November 2021, that the certification was issued to allow the applicant to “undertake study and not to return to work as a metal fabricator”. This is also confirmed in the record of conversation with Dr Smith on 8 November 2021 and Dr Simonson’s undated report to the insurer at [40] above. I accept that uncontradicted evidence.
While I appreciate that the evidence indicates that the applicant’s recent nerve conduction studies and ultrasound results were normal and that the reporting of symptoms coincides with the initial work capacity decision, the overwhelming evidence is that the majority of the specialists record ongoing symptoms in the hands impacting daily functions and recommend further investigation and/or treatment. Those specialists include Dr Patel in his report of 27 August 2021, Dr Livingston in his report of 11 October 2021, and Dr Markov in his report of 14 October 2021. Further, it is clear that it was Dr Simonson’s intention to certify the applicant with no current work capacity until further investigations were undertaken and resolved. This is confirmed in his referral letter to Dr Markov dated 8 November 2021. In addition, the evidence indicates that the investigations have not been resolved. The applicant has taken steps to further investigate his symptoms by arranging appointments with Dr Doig and Dr Bentivoglio.
I do not accept Dr Smith’s evidence, in circumstances where he has not examined the applicant and it is unclear how he came to know the applicant was undertaking home renovations and was driving to Canberra. The referral of these facts set in train a series of events leading to Dr Simonson’s revised Certificate of Capacity dated 9 November 2021, and ultimately the disputed Work Capacity Decision.
For these reasons, I prefer Dr Simonson’s Medical Certificate of 8 November 2021, certifying the applicant has no current work capacity.
Suitable employment
I now turn to the application of s 32A of the 1987 Act, and whether the role of real estate assistant is suitable employment.
In respect of the nature of the applicant’s incapacity, I make the following findings. Having regard to my above findings, the nature of the applicant’s incapacity and the details of that incapacity set out above (particularly at [75]), I am not satisfied that the applicant has a functional capacity to undertake the role of a real estate assistant. Indeed, the accepted medical evidence demonstrates the applicant continues to experience ongoing symptoms in his hands when undertaking “fine motor skills”. The uncontradicted evidence also provides that typing on a keyboard for about 15 minutes will result in the applicant’s fingers swelling and causing pain. The vocational evidence of EMP provides that a key physical requirement of the role of a real estate assistant would be repetitive movements when using a computer keyboard to enter data or type text. This requirement would not be compatible with the applicant’s current capacity.
I accept the respondent’s submission that there is no corroborating medical evidence regarding the applicant’s dyslexia and ADHD. Indeed, there is no medical evidence which indicates a medical diagnosis of dyslexia and/or ADHD. Nor is there any evidence, apart from lay evidence, that provides for reason of those conditions the applicant is unable to undertake the functional requirements of the role of a real estate assistant.
In respect of the applicant’s age, education, skills and work experience, it is arguable that the role of a real estate assistant is suitable employment. There is no barrier in respect of the applicant’s age. While the applicant has had a long history of employment as a boilermaker and security guard, the applicant has the relevant qualifications to undertake the role of a real estate assistant. In this regard, I note that the applicant has completed a Certificate IV in Real Estate Practice.
In respect of any return to work document or plan, I note that the completion of the Certificate IV in Real Estate Practice was part of the vocational education program developed by the respondent insurer for the applicant’s return to work.
In respect of occupational rehabilitation services, I note the following. I have not been taken to any specific occupational rehabilitation services that the applicant would need to undertake, such as vocational counselling and guidance or work trials. To this end, the evidence does not indicate that the applicant needs to undergo any occupational rehabilitation to undertake the role of a real estate assistant. I note that the evidence suggests that the applicant is able to job seek independently.
Having regard to the parties’ submissions and the totality of factors that must be considered under s 32A, I am not satisfied that the applicant has a current work capacity for suitable employment. This is particularly in view of the applicant’s ongoing symptoms in his hands, several medical recommendations for further medical investigation, and a recommendation for treatment in the nature of a cortisone injection. The evidence demonstrates that the applicant’s current functional capacity is not compatible with the physical demands of the role of a real estate assistant. Further, it would not be appropriate to find that the applicant has capacity for suitable employment when there is clear evidence of ongoing symptoms, further medical investigation and planned treatment. It follows that the current evidence does not support that the applicant is capable of engaging in suitable employment. That is, the role of a real estate assistant is not suitable employment.
For the above reasons, I find that the applicant has no current work capacity. There will be an award for the applicant for weekly payments of compensation pursuant to s 37 of the 1987 Act. The available evidence does not provide for the exercise of the Commission’s jurisdiction under s 38 of the 1987 Act to enter an award for weekly payments of compensation beyond 130 weeks.
CONCLUSION
For the reasons set out above, the applicant’s application is successful. I find that:
(a) the applicant has no current work capacity, and
(b) the respondent is to pay the applicant weekly benefits of compensation pursuant to s 37 of the 1987 Act at the rate of $1,496 (as indexed from time to time), for the period 1 December 2021 and ongoing. The respondent is to have credit for all payments of weekly compensation made to date, because of the application of
s 298B of the 1998 Act.
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