Bullock v Kincare Health Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bullock v Kincare Health Services Pty Ltd [2023] NSWPIC 430
APPLICANT:	Patricia Dawn Bullock
RESPONDENT:	Kincare Health Services Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	28 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the respondent employer claimed that the applicant, who had been assessed as a worker with high needs and in receipt of weekly benefits decided under section 43(1)(a), was able to return to work in suitable employment for nine hours a week; review of extensive medical evidence, the applicant’s lay evidence, Functional Assessment Report and Vocational Assessment report relied upon by respondent; Held – finding that the applicant had no current work capacity; award for the applicant pursuant to section 38.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has no current work capacity. 2. The role of a medical receptionist, or alternatively admissions clerk, does not constitute suitable employment. 3. The respondent is to pay the applicant weekly benefits pursuant to s 38 of the Workers Compensation Act 1987 as follows: (a) $227.94 per week: 27 April 2021 to 30 September 2021; (b) $230.66 per week: 1 October 2021 to 31 March 2022; (c) $234.90 per week: 1 April 2022 to 30 September 2022; (d) $242.82 per week: 1 October 2022 to 31 March 2023, and (e) $252.86 per week; I April 2023 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

Patricia Dawn Bullock (the applicant/Ms Bullock) seeks weekly benefits compensation from 20 April 2021 as a result of injury she suffered on 17 August 2015 arising out of or in the course of her employment as a home carer with Kincare Health Services Pty Ltd (the respondent), and a further injury in that employment on 28 August 2017.
The applicant commenced work with the respondent in approximately 2007 following her return from Queensland where she had moved to support her daughter. Prior to commencing with the respondent, she completed several qualifications at TAFE, namely, a Certificate III in Nursing, a Certificate IV in Childcare, and a Certificate IV in Elderly Care. The applicant worked for the respondent an average of 7.5 to 10 hours a week over three days each week.
On 17 August 2015 Ms Bullock was attending a client in her home, assisting her out of the shower. The client was heavy, and moved the bathmat with her feet, which caused the applicant to fall backwards onto the edge of the bath, landing heavily on her right hip the edge of the bath. Ms Bullock claims she injured her shoulders, right hip, right knee, and lower back in this incident.
Following treatment by her general practitioner and physiotherapist, the applicant returned to work, although she says that she was experiencing difficulty in particular with her right hip and knee.
On 28 August 2017 the applicant was involved in a further incident in the course of her work for the respondent. She was climbing stairs in a client’s house when she tripped because she was experiencing difficulty in making the ascent because of her right hip injury. She felt immediate pain in her right hip and knee, attended Kempsey Hospital where a scan was performed on her right knee, and was discharged from hospital.
Ms Bullock came under the care of general practitioner, Dr Kostalas, who arranged radiological investigations of her right hip, right knee, lumbar spine, and left shoulder. She underwent physiotherapy treatment, and was referred to see Dr Wellings, orthopaedic surgeon.
Dr Wellings recommended a right knee arthroscopy, and carried out this procedure, arthroscopy and medial meniscectomy, on 24 September 2018. On 14 November 2018. Dr Wellings advised Ms Bullock to return to sedentary duties. She attempted this in March 2019 for one week but had to cease because of severe pain in the right knee and hip.
On 1 July 2019 the applicant was referred to Dr Summersell, orthopaedic surgeon, for a second opinion. He saw Ms Bullock and recommended further investigation of the right hip and knee. On 3 September 2019 Dr Summersell carried out a right total knee replacement.
The applicant underwent physiotherapy, and manipulation under anaesthetic on two occasions, 27 November 2019 and 18 February 2020, at the hands of Dr Summersell.
The applicant remained under the care of Dr Summersell, and on 16 March 2021 consulted a new general practitioner, Dr Steven Xu. She was also independently reviewed by Mr Michael Ward, physiotherapist, at the request of the respondent’s insurer.
As a result of the incidents of 2015 and 2017, the applicant claims injury to her lower back, left shoulder, right shoulder, right hip, right knee, and scarring from surgery.
On 3 September 2020 the applicant underwent functional assessment at her home in Kempsey by Recovery Partners at the request of the respondent’s insurer, Employers Mutual Limited (EML). A Functional Assessment Report signed by Jessie Foley, occupational therapist, is in evidence.[1] Ms Bullock was assessed as currently having an ability to engage in daily activities and demonstrated a capacity to perform “sedentary” work, and having a capacity for reduced hours (that is 20 hours per week), due to reports of ongoing pain and work de-conditioning after remaining off work for three years.
[1] Application to Resolve a Dispute (ARD) p 30, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
On the same day, the applicant underwent vocational assessment by Recovery Partners, and a report signed by Jessica Abel, rehabilitation counsellor, is in evidence.[2] Under “Summary/Conclusion” in the report, the following appears:
“It is important to note that Ms McMillan-Bullock presents with a number of barriers to
returning to paid employment. These include permanent work restrictions, limited
functional tolerances due to workplace injury and non-compensable health
concerns, narrow employment history, no recent work experience, limited
transferrable and computer literacy skills, and residing in an area with few suitable
job openings.
Investigation into the labour market has suggested Ms McMillan-Bullock may be successful in obtaining employment in selected entry-level roles as a Medical Receptionist or Admissions Clerk, pending completion of the 6x2-hour comprehensive, face-to-face computer literacy training course that has been organised via Recovery Partners. EML have confirmed that the invoice for this service has been paid.”
[2] ARD p 44.
On 14 January 2021 EML issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) bringing her weekly payments to an end. In that notice EML recorded a decision under s 43(1)(c) of the Workers Compensation Act 1987 (the 1987 Act) indicating that Ms Bullock could earn $237.69 per week in suitable employment, working nine hours per week. The role of medical receptionist was considered more appropriate than that of a general clerk. Labour market information obtained by Recovery Partners indicated that the role of a medical receptionist with Westside Medical Centre most appropriate for the applicant, noting that she had recently completed her basic computer skills course and had previous medical knowledge and experience from her pre-injury role.[3]
[3] ARD pp 24 and 29.
That decision of EML was confirmed on 8 April 2021 when it issued to the applicant a further notice under s 78 of the 1998 Act in the same terms as the notice dated 14 January 2021, but including in “The details of the information available and considered” a Certificate of Capacity of Dr Xu dated 16 March 2021, and the earlier Certificate of Capacity of Dr Kostalas of “29 October 2021 [sic. 29 October 2020]”.[4]
[4] ARD p 107.
The applicant was independently medically examined on 2 September 2021 by Dr Hopcroft, general surgeon, at the request of her solicitor. Dr Hopcroft produced a report of that date in which he expressed the opinion that Ms Bullock continued to be significantly restricted by ongoing post traumatic pathology suffered to her right shoulder, lumbar spine, both knees and right hip. He said that she was totally unfit to contemplate a return to the workforce in spite of being assessed as being able to be a medical receptionist or general clerk working nine hours a week. The prognosis remained guarded.[5]
[5] ARD p 208.
The applicant was independently medically examined on 25 January 2022 by Dr Hyde Page, orthopaedic surgeon, at the request of the solicitor for the respondent. Dr Hyde Page produced a report dated 4 February 2022.[6] The doctor diagnosed, in terms of injuries suffered on 17 August 2015:
(a)    soft tissue injury to the right hip where Ms Bullock has now developed chronic trochanteric bursitis, which had settled well with injections. The hip joint itself was not injured and was normal to examination;
(b)    aggravation of chronic low back pain as a result of the fall and had some ongoing symptoms in her lower back, similar to what Ms Bullock had prior to the injury;
(c)    a very minor soft tissue injury to the right knee in August 2015, having previously noted that Ms Bullock had significant right knee complaint from an earlier injury and then suffered a more significant right knee injury in August 2017, and
(d)    aggravation of chronic left shoulder condition with the work injury of 17 August 2015.
[6] ARD p 134.
Dr Hyde Page noted that the applicant did not suffer any injury to the right shoulder, and that the right shoulder condition is completely unrelated. Dr Hyde Page disagreed with Dr Hopcroft’s conclusions that the work-related injury on 17 August 2015 caused injuries to the right shoulder, left knee, and the severity of any injury suffered to the right knee. He said that Dr Hopcroft did not take into consideration the pre-existent conditions affecting the applicant’s shoulders and lumbar spine in particular, nor did consider the subsequent injury to the right knee.
In a supplementary report dated 5 April 2023 Dr Hyde Page noted that the applicant was assessed in 2020 to determine if she was capable of undertaking sedentary work as a clerk or medical receptionist, and that it was actually determined that she was fit to work nine hours per week as a medical receptionist or general clerk. Dr Hyde Page considered that those employment options would be appropriate for the applicant, noting that:
“She would be desk-based but able to stand and walk around for short periods of time on a regular basis. She would be using her arms and hands by her side.
She would be doing very little bending and lifting. I consider that this work activity would not significantly aggravate her general symptoms and she would be able to participate quite satisfactorily in the work.”[7]
[7] Reply p 111.
On 1 November 2022 the parties agreed that the applicant’s right knee injury and scarring was a consequential condition arising out of the applicant’s injuries sustained on 17 August 2015.
The applicant was referred to Medical Assessor Tim Anderson for assessment of whole person impairment (WPI) as a result of injury to the left upper extremity, right lower extremity (knee), right hip, lumbar spine, and scarring on 17 August 2015. The Medical Assessor issued a Medical Assessment Certificate (MAC) dated 22 December 2022 containing the following assessments:
(a)    Left upper extremity – 6% WPI;
(b)    right lower extremity (knee) – 20% WPI;
(c)    right hip – 0% WPI;
(d)    lumbar spine – 6% WPI, and
(e)    scarring – 0% WPI,
for a total in accordance with the Combined Table values of 30% WPI.[8]

ISSUES FOR DETERMINATION

The parties agree that the issue remaining in dispute is whether the applicant has capacity to work nine hours a week in the suitable employment identified by the respondent, that is, as a medical receptionist, or alternatively an admissions clerk.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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 parties attended a conciliation/arbitration on 15 August 2023 conducted via video conference. Mr Ryan Brown of counsel appeared for the applicant briefed by Mr Grady. The applicant attended separately via video link. Mr Tom Grimes of counsel appeared for the respondent briefed by Ms Faapito. An EML representative also attended.

EVIDENCE

Documentary evidence

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

Oral evidence

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

SUBMISSIONS

The submissions of the parties are recorded in the transcript, a copy of which can be obtained on application. In summary, they are as follows.

Applicant

The applicant submits that, in terms of the definition in Sch 3 cl 9 of the 1987 Act, she has no current work capacity, or alternatively, the roles identified as appropriate by the respondent do not take into account all of her injuries and disabilities. Both roles, while sedentary in nature, involve the use of a computer. The applicant claims that she is computer illiterate and dyslectic, and would not be able to type, or read material, to the degree required of the positions identified by EML.
The applicant notes that it is not in issue that she could not return to her pre-injury role as a carer.
The applicant relies on her statement dated 26 July 2022,[9] in particular details of her work and vocational history, and the consequences of the injury of 17 August 2015.
[9] ARD p 9.
In previous proceedings it had been accepted that injuries to the left upper extremity, right lower extremity (knee), right hip and lumbar spine, and also scarring, should be referred to a Medical Assessor resulting in the MAC dated 22 December 2022.[10] The effects of these injuries on the applicant are detailed in he statement, such that she is severely disabled. The applicant notes the history recorded by Dr Hopcroft in his report sated 2 September 2021 that she “failed hopelessly to progress” in the programme in computer studies provided for her.
[10] ARD p 819.
The applicant refers to the schedule of medical certificates issued by Dr Xu and Dr Shuker covering the period from 16 March 2021 to 29 October 2022 all certifying “No capacity”,[11] which provides an accurate summary of her condition over that period. The Certificates of Capacity covering the period from 21 February 2023 to 20 April 2023[12] all contain certification that the applicant has no current work capacity for any employment.
[11] ARD p 803.
[12] ARD pp 840-844.
The applicant notes that respondent relies on a functional assessment carried out on 3 September 2020, which pre-dates the periods referred to above. Those assessments address injuries to the right knee and right hip, noting the diagnosis recorded in the report of right knee meniscal tear and right hip injury. The applicant submits that they ignore injuries to the left shoulder and lumbar spine.
Notwithstanding the assistance provided by Recovery Partners with the purchase of a laptop and enrolment in re-training courses, the applicant notes the positions indicated as suitable require data entry, which she could not manage because of her dyslexia.
The applicant submits that, based on the summary in the Functional Assessment Report that she has the ability to engage in daily activities and has a demonstrated capacity to perform sedentary work, and has a capacity for reduced hours of 20 hours a week, the report is of no probative value and should be given no weight. This is particularly so having regard to the applicant’s then current certification as being fit for some form of employment for three hours a day, three days a week.
In respect of the Vocational Assessment Report dated 3 September 2020, the applicant again submits that it records a history of injury to the right knee and right hip, without reference to the left shoulder and back. The applicant notes from the report that, while she was at that time still employed by her previous employer, the respondent has not been able to provide her with suitable duties.
The applicant submits that she did not obtain basic computer literacy from the training course provided to her over a number of hours and sessions, and asserts that she is basically not computer literate. She relies on her supplementary statement dated 2 May 2023,[13] and the evidence of her daughter Tracey Kane in her statement dated 2 May 2023.[14]
[13] ARD p 832.,
[14] ARD p 836.
The applicant submits that the position of an admissions clerk referred to in the Job Description in the Vocational Assessment Report would not be suitable employment having regard to her physical restrictions as a result of injury to her left shoulder, as it would involve repetitive use of her left arm.
The applicant submits that the certification by her former general practitioner, Dr Kostalas, of medical suitability for work as a general clerk or medical receptionist for up to nine hours a week in his report dated 29 November 2020 (“Confidential Facsimile”[15]) should be treated with caution, as there is no reasoning process demonstrated by the doctor in giving that comment. The applicant submits that this report is analogous to clinical notes prepared by a busy medical practitioner in the course of his or her work, and refers to the comments of Basten JA at [2] in Mason v Demasi,[16] and the reference therein to Container Terminals Australia Ltd v Huseyin,[17] in respect of accounts given to various health professionals.
[15] ARD p 73.
[16] [2009] NSWCA 227.
[17] [2008] NSWCA 320 at [8].
The applicant submits that it is not known if Dr Kostalas only considered he right knee and hip injuries in giving that comment, or if he knew of her computer illiteracy, dyslexia, or work experience. All of this is unexplained.
The applicant refers to the records of Dr Kostalas, and the entries recording a visit on Dr Hilary Stevenson on 15 February 2021, and “Non visit(s)” recorded by Mr Paddy Olver and Dr Elizabeth McDonald on 16 February 2021.[18] The applicant submits that these entries are evidence of a “break down” in the doctor patient relationship between Dr Kostalas and herself, or that the doctor had “given up” on her treatment.
[18] ARD p 750.
The applicant notes that there is nothing in the reports of Dr Hyde Page to indicate that he was aware of her lack of computer literacy, or that she is dyslectic, which is fatal to the opinion expressed by the doctor in the supplementary report dated 5 April 2023. This report was given without a further consultation with her.

Respondent

The respondent notes that from the evidence in the applicant’s statement dated 26 July 2022, whilst she has not previously been involved in clerical roles, she has obtained several qualifications at TAFE such as a Certificate in Nursing, a Certificate IV in Childcare, and a Certificate IV in Elderly Care. There are no specific details as to how long these courses took to complete, the number of units involved, or the degree of reading or writing involve in each course. Nevertheless, the respondent submits that this training demonstrates that the applicant is able to obtain qualifications, and would be suited for the position of receptionist.
In respect of the applicant’s claim that she is dyslectic, the respondent submits that there is no evidence that the applicant has ever been tested for this condition, and this evidence comes from the applicant herself, which has been adopted by doctors such as Dr Hopcroft.

The respondent notes that on 14 November 2018 the applicant attended on Dr Wellings and was advised that she was able to return to work on sedentary duties.
The respondent then refers chronologically to reports and entries in the clinical notes of the treating practitioners Dr Wellings, Dr Kostalas, the physiotherapist Victor Lee, and Dr Summersell, in support if its submission that the applicant is fit for suitable duties for the restricted hours certified by Dr Kostalas. These are all attached to the ARD, page references to which are noted hereunder. They are summarised as follows.
Dr Wellings:
(a)    report dated 14 November 2018 to Dr Kostalas, in which he expects things to start improving and recommends return top sedentary duties, limiting hours over the Christmas/New Year period (p 322);
(b)    report dated 30 January 2016 to Dr Kostalas, in which he notes that the applicant is functioning reasonably well, and suggests that she is at the point where a return to work in some formal capacity should be thought about (p 324), and
(c)    report dated 13 June 2019 to Dr Kostalas, in which the doctor suggests that the applicant consider finding alternative work as “she feels her knee is not reliable enough for her to be supporting her aged care clients (p 340).
Dr Kostalas:
(a)    clinical note entry dated 15 November 2018 containing reference to sore right knee, and noting clearance by Dr Wellings, seen the previous day, of clearance to return to sedentary duties until the next review in January (pp 683-684);
(b)    clinical note entry dated 7 February 2019 noting the correspondence from Dr Wellings, who thinks that the applicant can go back to work but potentially not for heavy work in her own (p 693);
(c)    clinical note entry dated 13 February 2020 noting correspondence from Dr Summersell, who wanted to improve range of motion via another manipulation under the general practitioner, not for work until manipulation had settles, and suitable for vocational assessment (p 725), and
(d)    clinical note entry dated 23 June 2020 noting that the applicant:
“As per RTW is now suitable for 3 hours 3 times a week which is pre-injury hours
10kg lifting restriction from the knee perspective
Will need to start a new claim for the right shoulder to put restrictions on lifting from a shoulder perspective” (p 734).
Victor Lee:
(a)    report dated 14 November 2018 to Chloe Dickey at Recovery Partners noting that the applicant has full range of motion in the right knee compared to her left knee, is able to complete stairs safely, but still had some trouble squatting down and loading her knee. Mr Lee thought that the applicant had the capacity to complete light suitable duties referred to in the report, noting pre-injury hours of only nine per week (p 323);
(b)    report dated 20 November 2019 to Dr Kostalas setting out the applicant’s functional capacities, and supporting her in pursuit of training course and job seeking activities once the appropriate and suitable vocations have been identified (p 362);
(c)    clinical note dated 14 January 2020, noting total knee replacement on 2 September 2019, and report of the applicant that knee pain improving and doing knee exercises (p 514);
(d)    clinical note dated 25 February 2020 recording that the applicant was mobilising independently without aid indoor and out and about (p 526);
(e)    clinical note dated 6 March 2020 recording progress and functional capacity, and that the applicant expressed interest in pursuing some type of suitable duties that did not involve stairs, walking, lifting or long distance walking (pp 530/1);
(f)    report dated 10 March 2020 to Dr Kostalas, reporting on the consultation of 6 March 2020, and that he would support the applicant in participation in any type of vocational training tasks and/or tasks that were within her functional capacity of up to three hours a day , three days a week (pp 374/5);
(g)    clinical note of Alejandro Alonso (in Victor Lee’s clinical notes) dated 4 May 2020 setting out objective findings, treatment, and exercises performed by the applicant (p 551), and
(h)    clinical note of Victor Lee dated 17 July 2020 recording a differential diagnosis of greater trochanteric bursitis and continued improvement in performing home duties (p 568).
Dr Summersell:
Report to Dr Rohit Rana dated 31 March 2020 (p 568) recording consultation via telehealth and recording findings on examination of right knee sis weeks post second manipulation. The doctor recommended that the applicant should continue with her physiotherapy exercises and visits, and recorded:
“She asked about returning to work. As we have discussed previously, I have suggested in the future that she performs light duties. In the past she has helped move and mobilise patient's and she should effectively not do this going forward. She would be able to work performing lighter tasks. She will see me again in about a month.”
The respondent refers to the Functional Assessment Report dated 3 September 2020, and submits that having regard to that report and the medical evidence referred to above, the applicant is able to fulfil the physical roles of a receptionist for nine hours a week.
The respondent submits that the long history of treatment by her original general practitioner, two orthopaedic specialists, and a physiotherapist, and the opinions expressed by those practitioners, when considered with her past vocational history and the training she was more recently given by Recovery Partners, confirms that the applicant would be able to fulfil the duties of a medical receptionist or general clerk certified as medically suitable by Dr Kostalas in his report dated 29 November 2020 to Recovery Partners.
The respondent refers to the reports of Dr Hyde Page dated 4 February 2022 and 5 April 2023, in particular where he says of the applicant’s work capacity in the earlier report that:
“I do not consider her injuries to the right hip, associated with some aggravation to her lower back and left shoulder, would prevent her from returning to work in some capacity.”
And in the later report:
“I note that Patricia Bullock was assessed in 2020 to determine if she was capable of undertaking sedentary work as a clerk or medical receptionist. It was actually determined that she was fit to work nine hours per week as a medical receptionist or general clerk.
I consider that these employment options, as presented to me, would be appropriate.
She would be desk-based but able to stand and walk around for short periods of time on a regular basis. She would be using her arms and hands by her side.
She would be doing very little bending and lifting. I consider that this work activity would not significantly aggravate her general symptoms and she would be able to participate quite satisfactorily in the work.”

Applicant in reply

The applicant submits that the vast majority of medical records relied upon by the respondent in its submissions relate to the period prior to 3 September 2019 when the applicant underwent her right total knee replacement surgery. Thereafter the applicant underwent two manipulations of the knee on 27 November 2019 and 18 February 2020. The applicant submits the medical records that pre-date the last manipulation contain opinions that do not grapple with her physical situation, and that it unreasonable to suggest that she could carry out the roles submitted by the respondent to constitute suitable duties.
The applicant submits that the opinions of the doctors relied upon by the respondent do not take into account the totality of her physical and vocational condition.
The applicant refers to her evidence that the insurer declined liability for further physiotherapy on her right hip in about mid 2020 after assessment by Michael Ward, physiotherapist, and liability for her right hip injury was declined by the insurer in February 2021. The applicant asserts that she was reliant on physiotherapy to maintain her functionality.
The applicant submits that her attendance in TAFE courses in 2005 is of no relevance to the role of medical receptionist or admissions clerk. There is no evidence as to whether computers or note pads were used in those courses, the course content, or practical elements of such courses.
The applicant finally submits that the respondent has not suggested that the applicant’s evidence was untrue, or that she was lying about her capabilities. Therefore there is no reason not to accept her evidence as to her capabilities, or the evidence of her daughter in this regard.
The applicant presents her case on the basis that that can be no finding other that that she has no current work capacity, or that the positions put forward by the respondent as suitable employment are not as such . Having regard to the hours per week that the respondent asserts that the applicant can work in suitable employment, and the agreed quantum of pre-injury average weekly earnings (PIAWE) in issue, there can be no other finding.

FINDINGS AND REASONS

Legislation

Section 32A of the 1987 Act defines suitable employment 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.”
The meaning of “current work capacity” and “no current work capacity” in Sch 3 cl 9 of the 1987 Act is:
“(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.”

Work capacity

The respondent’s case is that the applicant has the capacity to work nine hours a week, the number of hours that she was working pre-injury, in suitable employment as a medical receptionist or admissions clerk.
This assessment is based on the Functional Assessment Report dated 3 September 2020 and the Vocational Assessment report of the same date. Those reports record the applicant’s type of injury as “Right knee sprain and right hip injury”. The area of pain in those body parts is described in the Functional Assessment Report. The author of that report found that Ms Bullock demonstrated capacity to engage in sedentary roles that do not involve lifting requirements above 5kg. She recommended that the applicant commence working reduced hours (20 hours per week) in a role within her identified functional tolerances, and gradually increase to full-time hours as appropriate.
At the time of that assessment the applicant advised that her right knee had reached its maximum capacity and that she felt her pain and function was worse than prior to surgery. She also reported she was experiencing lower back pain and shoulder pain that may impact upon her ability to complete some parts of the assessment.
In the Vocational Assessment Report the work status was recorded as the applicant being currently certified as having some capacity for employment for three hours per day, three days per week with the following restrictions:
(a)    lifting/carrying capacity – 4kg per arm;
(b)    sitting tolerance – nil restrictions;
(c)    standing tolerance – 30 minutes;
(d)    pushing/pulling ability – none;
(e)    bending/twisting/squatting – none, and
(f)    driving ability – 30 minutes.
These contrast with the restrictions described by the applicant at [84]-[90] in her statement dated 27 July 2022, which are more significant.
The author of the Vocational Assessment Report explored the medical suitability of the applicant for the occupations of medical receptionist and admissions clerk, noting that medical approval was to be obtained from the nominated treating doctor, Dr Kostalas, at the next case conference on 22 September 2020. However it was noted that given Ms Bullock’s limited computer literacy skills, employer feedback had indicated that she would not likely be considered a competitive candidate for either roles in comparison to other applicants. An increase in the applicant’s marketability for employment was forecast within the selected roles pending the completion of the 6 x 2-hour comprehensive face-to-face computer literacy training sessions that had been organised via Recovery Partners. Employer feedback indicated that the applicant would be required to increase her capacity for work to at least 20 hours per week to meet the requirements for selected admissions clerk roles.
As noted above at [39], Dr Kostalas on 29 November 2011 signed off on the applicant’s medical suitability for the two occupations put forward by Recovery Partners. I note the applicant’s submissions on the caution which should be exercised in accepting this report. It was shortly thereafter, in February 2021, that the applicant ceased consulting Dr Kostalas (see [41] above), and was obliged to seek the services of another general practitioner, Dr Xu who she saw from about March 2021 onwards.
It appears that Dr Kostalas was not aware of the dyslectic condition of which the applicant complains.
Ms Bullock did complete the computer course that the insurer arranged for her. She says in her statement dated 26 July 2022 that this was arranged in approximately July 2020. However it is evident from the Vocational Assessment Report she had not undergone the course as at the date of that assessment, 3 September 2020. She describes the course as going for ten sessions and was self-learning at home.
The applicant gives further evidence about this course in her supplementary statement dated 2 May 2023. In essence, according to the applicant, the course did not enable her to become computer literate such that she could use a computer independently in a workplace situation, certainly not to the degree that the author of the Vocational Assessment Report anticipated would be necessary for the applicant to have achieved on completion of the course. There is no evidence from the respondent to which I was taken of the satisfactory completion of the course by the applicant.
The evidence of the applicant’s daughter, Tracey Kane, corroborates her mother’s evidence as to her problems in operating a computer, use of internet banking, lack of typing skills and use of Wi-Fi. This is hardly surprising considering the applicant’s age, education, skills and work experience. The applicant did have an email address when working with the respondent which she used with the assistance of her daughter. Apart from this, there is no evidence that the applicant was required to use a computer otherwise in her pre-accident role as a carer of aged persons in their own home.
While there may be a degree of self-interest in the evidence of the applicant and her daughter in their evidence, I see no reason not to accept it.
I do not regard the TAFE training undertaken by the applicant in about 2005 would in any way be relevant to any computer skills that that Ms Bullock may be able to acquire at the present time in order to fit herself for suitable employment. Since 2007 she has worked for the respondent as a carer of elderly people in their own homes.
Section 32A of the 1987 Act requires me to have regard to, relevantly, the following matters in determining what is suitable employment for the applicant to undertake:
(a)    the nature of her incapacity and details provided in medical information. This has been considered in detail. The applicant’s treatment her health practitioners until about the time of the issue of the Functional Assessment Report and the Vocational assessment report was focussed on the applicant’s right knee and hip injuries. The right knee injury in particular resulted in an assessment by the Medical Assessor of 20% WPI. The applicant also suffered injury to her lumbar spine and left shoulder, which while mentioned in the Functional Assessment Report, were not the basis on which the assessment was made. Injury to these body parts caused the applicant to sustain 6% WPI in each case;
(b)    the applicant’s age, education, skills and work experience. Having regard to the age of Ms Bullock, the age at which she left school, and her work experience including that since 2007 with the respondent, it is not surprising that she has minimal computer skills, which have not been significantly improved by the training provided by EML, and
(c)    any occupational rehabilitation services that are being, or have been provided for the applicant. Such service, in the form of assessment by Recovery Partners and the computer training have been discussed above.
I must have regard to those matters regardless of:
(a)    whether the suitable employment is available. It seems from the Functional and Vocational Assessment Reports that the suggested suitable employment is available;
(b)    whether the work or the employment is of a type or nature that is generally available in the employment market. Again, it seems that the suggested suitable employment is so available;
(c)    the nature of the worker’s pre-injury employment. I have discussed this above. However, in my view, this factor does not prevent a finding being made that the applicant’s pre-injury employment would not have assisted her to become computer literate, and
(d)    the worker’s place of residence. This factor is not relevant to the facts of the applicant’s case.
In my view, having regard to the foregoing matters and:
(a)    the applicant’s significant physical impairment as a result of the acknowledged injuries sustained by her arising out of or in the course of her employment;
(b)    her computer illiteracy;
(c)    the nature of the duties of the suggested vocations of medical receptionist, or alternatively admissions clerk, put forward by the respondent as providing suitable employment for the applicant for the nine hours a week for which the applicant was certifies fit for suitable duties,
I find that the applicant has a present inability arising from an injury such that she is not able to return to work, either in her pre-injury employment or in suitable employment.
I find that the role of a medical receptionist, or alternatively admissions clerk, does not constitute suitable employment.
There will therefore be an award in favour of the applicant for the weekly benefits claimed in the ARD.

Weekly benefits

The applicant’s PIAWE for the period from 27 April 2021, the date from weekly benefits are claimed, are set out in the ARD, commencing with a figure of $284.93 as at that date. This amount is increased on 1 October and 1 April of each succeeding year in accordance with, I assume, s 82A of the 1987 Act.
Counsel for the applicant confirmed that any award from the date claimed for weekly benefits would be pursuant to s 38 of the 1987 Act, the applicant being a worker with high needs as defined in s 32A of that Act. Counsel for the respondent confirmed that there was no issue with the PIAWE claimed.

Section 38(6) of the 1987 Act provides:
“The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.”
The respondent is to pay the applicant 80% of the PIAWE claimed in the ARD for the periods specified therein.

SUMMARY

The applicant has no current work capacity.
The role of a medical receptionist, or alternatively admissions clerk, does not constitute suitable employment.
The respondent is to pay the applicant weekly benefits pursuant to s 38 of the 1987 Act as follows:
(a)    $227.94 per week: 27 April 2021 to 30 September 2021;
(b)    $230.66 per week: 1 October 2021 to 31 March 2022;
(c)    $234.90 per week: 1 April 2022 to 30 September 2022;
(d)    $242.82 per week: 1 October 2022 to 31 March 2023, and
(e)    $252.86 per week; I April 2023 to date and continuing.

[2023] NSWPIC 430

28 August 2023