Cacciola v Av Sound Productions Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cacciola v AV Sound Productions Pty Ltd [2022] NSWPIC 411
APPLICANT:	Daniel John Cacciola
RESPONDENT:	AV Sound Productions Pty Ltd (In Liquidation)
MEMBER:	26 July 2022
DATE OF DECISION:	John Wynyard
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation; whether in view of applicant’s age, experience and skills; he had no current work capacity; Held — section 32A of the Workers Compensation Act 1987 considered; applicant’s qualified expert considered him suitable for restricted light duties; applicant’s subjective view not supported by medical information; applicant able to earn $300 per week; orders accordingly.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant’s applicable pre-injury average weekly earnings is at set out in the applicant’s wages schedule from page 262 of the Application to Resolve a Dispute. 2. The applicant’s current work capacity from 3 March 2021 to 15 February 2022 is $300 per week. The Commission orders: 1. The respondent will pay pursuant to s 37 of the Workers Compensation Act 1987 the following: (a) $481.43 per week from 3 March 2021 to 31 March 2021; (b) $503.95 per week from 1 April 2021 to 28 September 2021; (c) $513.50 per week from 29 September 2021 to 15 February 2022.

STATEMENT OF REASONS

BACKGROUND

Daniel John Cacciola, the applicant, is seeking payments of weekly benefits and medical expenses with regard to an accepted injury he sustained to his right shoulder initially on 30 November 2001. He aggravated that injury in March 2017, and came to surgery on 17 July 2017. Member John Harris issued a decision on 1 April 2020 which is at page 389 of the Application to Resolve a Dispute (ARD).
He made orders relating to weekly payments of compensation and found that the insurer was liable for the cost of the surgery on 17 July 2017.
The applicant now brings an action for a closed period of weekly payments from 3 March 2021 to 15 February 2022. This is the period of 50 weeks that remains of the 130 weeks of entitlement pursuant to s 37 of the Workers Compensation Act 1987 (1987 Act).
The parties agree that the single issue for determination was as to the applicant’s capacity to earn during this period.
Member Harris made orders for the payment of weekly compensation following the shoulder surgery of 17 July 2017. He found that Mr Cacciola was capable of earning in suitable duties an amount of $400 per week on a pre-injury average weekly earning (PIAWE) of $746.92.
The present wages schedule set out at p 262 of the ARD. The PIAWE claimed was indexed to $746.92, which by the date of claim of 3 March 2021 was $781.73. And then by virtue of indexing it rose to $813.50 on the last day of Mr Cacciola’s entitlement, 15 February 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

This matter was heard at 1 Oxford Street Sydney on 19 July 2022. The applicant was represented by Ms Elizabeth McDonald of MCW Lawyers briefing Mr Phillip Perry of counsel. The respondent was represented by Mr Simon Janssen of McCabes lawyers instructing Mr John Gaitanis of counsel.
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.

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 attached documents.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

Mr Cacciola made a statement dated 23 February 2022 in which he said that subsequent to the orders from Commission on 1 April 2020 he was no longer requiring regular treatment for his shoulder. He continued to be careful with his right shoulder and carried out the exercises recommended to him by his physiotherapist.
He said however that by March 2021 his pain and lack of mobility had worsened to such an extent that he needed physiotherapy on a regular basis which he is continuing to have. He said that he was waiting in accordance with the advice from his treating surgeon, Dr Burrows as long as he could until he came to what he was told an inevitable shoulder replacement.
He said that he could not lift his right arm above shoulder height or to the side, at the date of his statement. He tended to avoid any overhead reaching and his flexibility to put his arm behind his back was extremely limited. He thought that his bicep was only partially attached. He tended to drop and smash crockery because he could no longer hold it.
He said that he left high school in 1989 with a Higher School Certificate but that he was not academically inclined and did not attend university.
He obtained an Audio Engineering Advanced Certificate in 1996 and he worked in a variety of jobs before becoming an audio visual technician, or roadie as he said his job was more commonly expressed as.
He worked for Joyce Mayne as a storeman which involved unloading trucks and delivery up to 1994 and then he worked as a cutter/labourer as a labourer preforming wall chasing (cutting groves for conduits in walls, jackhammering and other physical duties).
From 1994 to 1998 he worked as a coolroom builder having to perform onsite coolroom freezer construction, repair and maintenance of rooms and doors.
In 1996/1997 he was a casual labourer for Sydney Dance Floors and Staging which entailed setting up and packing down sets, dance floors and staging for events.
From 1996 to 2017 he was employed as a roadie by three different firms and also engaged in freelance work himself. He described the work as being very labour intensive at paragraph 50. He said that about 70% or more of work was the labouring work required to set up the audio visual equipment in order to be able to get his qualification as an audio visual technician.
At [52] of the ARD (p 11), he acknowledged the orders of the Commission on 1 April 2020 and said at [58] that since his surgery on 1 July 2019 he had received no earnings from his employment as a freelance audio visual technician. He said he was not academically capable and there were not any realistic options for him to be able to study and find alternative work.
He said:
“My typing computer skills are terrible. My eye sight is not what it once was. I became an audio visual technician in the first place so I could be doing different things every day performing active work and not studying as I had not had a level of concentration required for this.”
Mr Cacciola said that whilst he had had no earnings from any work or related activities since 1 July 2019, he had received some income from the Commission order and also from Centrelink.
He said he had continued to look for work since that surgery but there was very little work offered and he had only done a few gigs in the last four or five years.
He said that COVID hit the audio visual industry hard and there was very little in the way of live events.
He said because he was not academically capable he would not have the ability to obtain qualifications in the virtual platforms that were now being used and working as he used to do has almost disappeared because of the changes that COVID has caused to the industry.
In his earlier statement of 6 May 2019 at [24] on p 18 of the ARD he said that in late August or early September 2017 he had a partial capacity for work but his former employers were finding it hard to find work for him. He had been unable at that stage to source any alternative employment. He only worked a few days here and there since then.
He said at the end of 2017 he was continuing his exercise program which included breast stroke swimming. He developed numbness in two fingers and the forearm in his right hand in February 2018 and was told that he had developed a cubital tunnel syndrome. That improved with the use of a brace.
He repeated at [34] that he was unable to work as an audio visual technician for a number of reasons all of which were concerned with the problems he was having with his arm in driving. He said he would be able to run cords and plug cables and wires but that was a small part of the job and he said that he was otherwise “fairly useless now to prospective employers”.
He said at [40] that he was always looking for a job with the same flexibility as he had before to allow him to look after his mother and himself.
He said that his mother was then 88 years old and is now 91 years old and that she had moved into his house following his July 2017 surgery.
Dr Thomas Rosenthal, specialist occupational physician reported on 26 June 2019[1]. His opinion as to Mr Cacciola’s capacity was that he was partially unfit for work and would have been restricted to avoiding above shoulder height activities, lifting of over 5gs and repetitive right arm tasks.
[1] ARD p 154.
In his report of 26 May 2022[2] he said that the shoulder condition had not changed. There had been no more surgery. He was still getting pins and needles intermittently in the little and ring fingers of his right hand. He was having intermittent physiotherapy.
[2] ARD p 181.
Dr Rosenthal noted Mr Cacciola’s prior history noting that the roadie job involved a significant amount of lifting and moving sound equipment. He noted that Mr Cacciola was looking for work when COVID hit and he thinks he is now essentially unemployable. His opinion as to Mr Cacciola’s capacity for work on the open labour market was that he was partially unfit and no lifting over 5kg of both hands, not above chest height activity of the right arm and no repetitive right arm or hand movements.
Dr Stephen Rimmer, orthopaedic surgeon, saw Mr Cacciola on 16 June 2017[3], 12 February 2020[4] and he gave a further opinion on 24 May 2022 which is in the Reply.
[3] ARD p 139.
[4] ARD p 167.
On 12 February 2020 Dr Rimmer gave no opinion as to Mr Cacciola’s capacity, but on 24 May 2022 he thought on examination Mr Cacciola demonstrated a fairly good range of motion of the right shoulder with no evidence of discomfort. As to capacity, he said:
“Given his age and level of education, Mr Cacciola was more than suitable to be retrained in a full time sedentary office based role effective immediately.”

SUBMISSIONS

Mr Perry submitted that the findings of a capacity of earning $400 per week by Member John Harris on 1 April 2020 pertained to a different set of circumstances. It did not pertain to Mr Cacciola’s situation at the start of the closed period, 3 March 2021. He emphasised that Mr Cacciola was now 50 years old. He had limited education and his skills were limited to the experience he had in labouring type work.
Mr Perry argued that therefore under these circumstances there was no current work capacity and referred to the wages schedule at p 262 of the ARD.
There had been a change in circumstances since 9 September 2018, which was the date from which Member Harris ordered weekly payments to be paid.
Mr Perry conceded that Mr Cacciola might obtain some work intermittently “if a gig on Tuesday and a gig on Thursday and made something like $200” but Dr Rimmer’s recommendation on office work was clearly unrealistic.
I could read Dr Rimmer’s report as being an opinion that as presently advised Mr Cacciola had no currently work capacity, Mr Perry said.
Mr Gaitanis said that there were only three pieces of evidence that were relevant as to whether there had been any change in the applicant’s ability to earn. Mr Gaitanis submitted that Mr Cacciola’s circumstances had not changed to any extent since 1 April 2020. He noted that on 1 April 2020 Mr Cacciola said at [9] of his statement he was no longer requiring regular treatment but carried out his own exercises. At [58] he said he had no earnings from work related activities since 1 July 2019 and at [61] Mr Gaitanis said it was relevant that Mr Cacciola said he was still looking for work, as he had since 2017.
Mr Gaitanis conceded that Mr Cacciola did not have strong evidence insofar as his age, education and skill were concerned, but he referred to the work that Mr Cacciola was doing prior to becoming a roadie. He submitted that even though a lot of it involved some work that was not suitable because of his restrictions in the use of his arms, the situation was the same as pertained before Member Harris.
Mr Gaitanis said that most of the evidence relied on by Mr Perry already existed at the time of Member Harris’s decision. He said there was not much fresh evidence, and the medical evidence was consistent with that which had been before Member Harris. If anything his condition had improved since then.
In response Mr Perry pointed that there had been two bouts of surgery and that on 17 July 2017 a massive tear had been located and repaired. It could not be said that the condition of the shoulder was benign in view of that report.
Mr Perry said that, as was not uncommon in the Commission, Mr Cacciola’s statements that he was looking for work were expressions of hope rather than experience, I understood him to say.

DISCUSSION

The provisions of s 32A of the 1987 Act were referred to by both parties. It provides:
“‘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.”
Member Harris’s decision of 1 April 2020 was concerned with an application for weekly compensation from 27 February 2017 to 9 September 2018. He found that up to 28 May 2017 Mr Cacciola had a current work capacity as defined by s 32A of $500 per week, and after he had recovered from his shoulder surgery a current work capacity of $400 per week from 18 October 2017 to 9 September 2018, the last date of the closed period.
Accordingly, his findings did not represent Mr Cacciola’s current work capacity as at the date of his determination, but rather as it was over a year earlier. The question therefore is whether Mr Cacciola’s ability to earn has altered since 9 September 2018.
Mr Cacciola himself said at [53] that he had earned very little since his surgery on 17 June 2017, and that he had not earned anything since 1 July 2019, his only income being from workers compensation payments and Centrelink. That is, I suppose, some evidence that his situation has worsened since 9 September 2018, but it has to be balanced with the more objective evidence from the medical experts.
His qualified expert, Dr Rosenthal, had assessed Mr Cacciola on 26 June 2019 and 26 May 2022, and was thus in a good position to comment on Mr Cacciola’s capacity over that time.
On 26 June 2019 Dr Rosenthal advised that Mr Cacciola was fit for suitable duties such that he would have required significant restrictions in lifting and right arm activities.
From 29 August 2017 through to 26 June 2019, the date of Dr Rosenthal’s report, he advised that Mr Cacciola had remained partially unfit with restrictions as to lifting over 5kg over above shoulder height activities and repetitive right arm activities.
Dr Rosenthal said in his report of 26 May 2022 that since he had last seen Mr Cacciola, the shoulder condition had not changed although he noted intermittent pins and needles in the little and ring fingers of the right hand. Dr Rosenthal noted Mr Cacciola’s limitations because of his education, work history and that, because of the significant lifting and moving sound equipment required, that he was not fit for his preinjury duties. However he did note that Mr Cacciola was looking for work when Covid commenced and he confirmed Mr Cacciola’s subjective view that he was “essentially unemployable.” Dr Rosenthal nonetheless said that the Cacciola was fit for suitable duties with the same restrictions Dr Rosenthal had nominated in 2019.
Dr Rimmer in his report of 12 February 2020 had found that there was no causal link between the 2001 injury and that of March 2017. In his latest report however dated 24 May 2022 Dr Rimmer suggested that Mr Cacciola was suitable to be retrained in an office based role.
It can be seen that Mr Cacciola from his subjective standpoint does not think that there is any realistic chance of his obtaining any suitable duties, and thus has no current work capacity. With the passing of s 32A of the 1987 Act, subjective considerations are secondary the issues set out in subparagraph (b) of the suitable employment definition. In looking at whether a claimant is currently suited for employment no regard is to be had as to whether the work or the employment is available, whether it is of a type or nature that is generally available in the employment market, or to the nature of a claimant’s pre-injury employment.
Sub-paragraph (a) makes the nature of the incapacity and the details provided in medical information and the claimant’s age education skills and work experience relevant in Mr Cacciola’s case.
Mr Gaitanis conceded that the fact that Mr Cacciola is now 50, and the limitation in both Mr Cacciola’s education skills and work experience were relevant factors to consider, but that nonetheless when the medical information was considered that I would not accept that Mr Cacciola has no current work capacity.
Mr Perry’s submissions that Mr Cacciola did have no current work capacity were rather undercut by the medical information, particularly that of Dr Rosenthal. He found in effect that there had been no change between June 2019 and May 2022. Whilst Member Harris was concerned with Mr Cacciola’s capacity only up to 9 September 2018, there has been nothing advanced of a medical nature that established that Mr Cacciola’s circumstances have changed in any material respect. However, I think that some recognition should be given to the fact that Mr Cacciola is now 50 years old and to the restrictions in the use of his right arm that limit both the hours and the activity that he is capable of.
It was unfortunate that Member Harris’s reasons were not before the Commission but I was advised by Ms McDonald that Member Harris’s reasons had been ex tempore and no transcript had been taken out.
I am satisfied that Mr Cacciola could do some suitable work. He might be able to find some work as a carer, as he has been able to care for his 91-year-old mother. I infer, assuming that the level of care is not great, that nonetheless the duties involved in such activity would also enable Mr Cacciola to find some suitable work in the hospitality industry such as a waiter, or in doing some light cleaning. He could work for 15 hours per week earning $20 per hour in such employment.
I am satisfied that the wages schedule at p 262 of the ARD accurately reflects the PIAWE is adjusted from the finding of Member Harris of 1 April 2020. Accordingly, I find that the applicant could earn in suitable employment sum of $300 per week.

Accordingly, the respondent will pay the following weekly benefits:
(a)    $481.43 per week from 3 March 2021 to 31 March 2021;
(b)    $503.95 per week from 1 April 2021 to 28 September 2021, and
(c)    $513.50 per week from 29 September 2021 to 15 February 2022.

[2022] NSWPIC 411

26 July 2022