Caruso v Transport for NSW
[2021] NSWPIC 500
•3 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Caruso v Transport for NSW [2021] NSWPIC 500 |
| APPLICANT: | Carlie Jane Caruso |
| RESPONDENT: | Transport for NSW |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 3 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments of compensation for partial incapacity for injury to the neck and left upper limb for a five-month period in 2019 and the payment of medical expenses; determination of suitable employment and relevant rates of pay for that employment; reference to Wollongong Nursing Home v Dewar; Held – order for weekly payments of compensation for partial incapacity for that five-month period and payment of reasonably necessary medical expenses. |
| DETERMINATIONS MADE: | 1. The applicant’s pre-injury average weekly earnings (PIAWE) are $826.25. 2. The indexed PIAWE for the period of weekly compensation claimed by the applicant, as provided for by section 82A of the Workers Compensation Act 1987 (the 1987 Act), is: (a) $870.78 per week from 29 July 2019 to 30 September 2019, and (b) $876.09 per week from 1 October 2019 to 30 December 2019. 3. The applicant was able to earn $461.80 per week in suitable employment in the period from 29 July 2019 to 30 December 2019. |
| ORDERS MADE: | 1. The respondent is to pay the applicant weekly payments of compensation pursuant to section 37 (3) of the 1987 Act as follows: (a) $234.82 per week from 29 July 2019 to 30 September 2019, and (b) $239.07 per week from 1 October 2019 to 30 December 2019. 2. The respondent is to pay the reasonably necessary medical expenses incurred by the applicant for treatment for injury to her cervical spine and left upper limb. |
STATEMENT OF REASONS
BACKGROUND
Carlie Jane Caruso, the applicant in these proceedings, sustained an injury to her neck and left shoulder on 1 December 2016 while employed as an administrative assistant with the respondent, Transport for NSW.
Ms Caruso claims that she collided heavily with a man as she was leaving a toilet when at work on 1 December 2016 and felt immediate pain in her neck and left shoulder. The respondent accepted liability for this injury.
Ms Caruso claims that she has had ongoing pain in her neck, left shoulder and into her left hand, as well as recurring migraine headaches.
Ms Caruso continued to work for the respondent, but with restrictions on her work capacity, until she decided to resign her employment in May 2018.
Ms Caruso received weekly payments of compensation at varying rates from the time of the injury until 28 July 2019.
The insurer for the respondent, QBE, issued a dispute notice dated 17 June 2019 stating that weekly payments of compensation would be terminated because Ms Caruso no longer had any total or partial incapacity for work. The notice also stated that Ms Caruso was no longer entitled to payment for medical treatment because treatment was no longer reasonably necessary as a result of her injury.
Ms Caruso has been able to undertake intermittent part time work since 28 July 2019. The applicant claims weekly payments of compensation from 29 July 2019 on the basis that she remains partially incapacitated for work as a result of her injury on 1 December 2016. She also claims the cost of medical treatment for the injury to her neck and left shoulder.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Ms Caruso has remained partially incapacitated for work since 29 July 2019 as a result of the injury sustained on 1 December 2016, and if so, the extent of that incapacity (sections 32A, 33 and 37 of the Workers Compensation Act 1987 (the 1987 Act), and
(b) whether the respondent is liable for reasonably necessary medical treatment for the injury to the neck and left shoulder sustained by Ms Caruso on 1 December 2016 (section 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 25 November 2021. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Grimes appeared for the applicant, instructed by Mr Charles. Mr Saul appeared for the respondent, instructed by Ms Kikinis.
The hearing was conducted by video in accordance with protocols set by the Commission as a result of the coronavirus pandemic.
At the commencement of the hearing, Ms Caruso restricted her claim for weekly payments of compensation to the period from 29 July 2019 to 30 December 2019, being the balance of the second entitlement period.
There was no agreement on the pre-injury average weekly earnings (PIAWE) for Ms Caruso. Ms Caruso claims that her PIAWE was $826.25. The respondent claims her PIAWE was $804.54.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) wages schedule filed by the respondent on 12 November 2021;
(d) Application to Admit Late Documents filed by the respondent on 18 November 2021, and
(e) wages schedule filed by the applicant on 18 November 2021.
Oral evidence
There was no application to adduce oral evidence or to cross examine Ms Caruso.
The applicant’s evidence
Ms Caruso has provided statements dated 24 August 2021 and 18 November 2021.
Ms Caruso states that she did not immediately look for work after she resigned her employment with the respondent in May 2018 because of ongoing left sided neck pain, headaches and severe anxiety and depression. She states that she did nearly four weeks of part time work in June 2018, but that she could not continue with that work due to the aggravation of pins and needles in her left arm and headaches.
Ms Caruso states that in July 2018 she started her own business, ‘Mighty Power Paws’, which is a pet care service, mainly for dogs. This job includes house sitting, vet visits, park visits and feeding of dogs. She states that she considered this job would limit further aggravation of her injuries because she could pace herself and avoid static postures.
Ms Caruso states that from late June 2019 to October 2019 she obtained a part time administration role with a non-profit organisation, Top Blokes. She states that she worked 10 hours per week from her home, which meant she did not have to travel and could pace herself. She states that this work ended in October 2019 because of a lack of ongoing funding for administrative support.
Ms Caruso has provided copies of her tax invoices for her work with Top Blokes, which record that she worked no more than 12 hours per week, at an hourly rate of $25 per hour. The last invoice that Ms Caruso renders for her work with Top Blokes finishes on 25 October 2019.
Ms Caruso states that after her work ceased with Top Blokes she continued to seek work but only received a few phone calls in response to her applications for work. She states that there were few employers looking for someone who could work 10 to 15 hours per week.
Ms Caruso states that she continued to operate her business of Mighty Power Paws. There is only one invoice in evidence of the work undertaken by Ms Caruso for Mighty Power Paws for the period of compensation claimed in this application, being a period from 30 September 2019 to 9 October 2019, when Ms Caruso did 10 hours of dog sitting work.
Ms Caruso states that in October 2019 she had pain at the base of her neck, headaches, and paraesthesia in her left hand. She states that in November 2019 she had an injection in the left side of her neck which provided a temporary relief of symptoms, but that her neck seized up again in late December 2019.
The medical evidence
Ms Caruso attended Dr Parkinson, neurosurgeon, in May 2017. Dr Parkinson records, in a report dated 18 May 2017, that the injury sustained by Ms Caruso was to the left side of her neck when she was at work in December 2016. He also writes that an MRI scan, which Ms Caruso underwent on 1 April 2017, showed an acute left disc herniation at C5/6, causing some mild displacement of the traversing C7 nerve root.
Dr Parkinson did not consider that Ms Caruso required surgery and referred her to Dr Yu for pain management.
Ms Caruso was reviewed by Dr Yu on a regular basis from August 2017 to December 2018. The reports from Dr Yu during that period record that Ms Caruso underwent three injections in her neck, which provided some temporary relief for her left sided neck pain and left arm pain.
In a report dated 30 May 2019, Dr Yu records Ms Caruso rating her pain at 4/10. He also records Ms Caruso having stopped taking Endone, although she was continuing to take Panadeine Forte.
In a report dated 23 January 2020, which is soon after the end of the period of weekly compensation claimed by Ms Caruso, Dr Yu records Ms Caruso rating her pain at 9/10. He records that Ms Caruso has persistent left sided neck pain, left shoulder pain, and pins and needles down the fingers of her left hand. Dr Yu records that Ms Caruso underwent another injection to the left side of her neck on 6 November 2019, but that this provided her with minimal relief. Dr Yu also records Ms Caruso taking two Panadeine Forte on average each day and Endone five to six times per week.
Dr Yu has also provided a report dated 16 April 2021 at the request of the solicitors for Ms Caruso. Dr Yu writes in that report:
“At this stage, I believe that Ms Caruso is still limited in terms of her capacity to return to a suitable work role due to her persistent left-sided neck pain, left arm pain and some headaches. Due to the nature of her pain condition, she is unable to engage with certain activities for longer periods of time. She requires ongoing medication management for her pain condition, for which some of the medications can affect her ability to engage with specific work activities, both physically and mentally.”
Dr Yu also writes: “Carlie is most probably unable to assume any job role and could be considered as incapacitated.” Dr Yu writes that he is unable to provide a definite recommendation regarding possible job roles and hours, and he would recommend referral to an occupational physician regarding her current job capacity.
Dr Harrison, orthopaedic surgeon, has provided a report dated 10 October 2019 at the request of the solicitors for Ms Caruso.
Dr Harrison records that Ms Caruso has striven to find alternative work and is doing 10 hours per week in administrative support and had opened up a dog business.
Dr Harrison writes that Ms Caruso sustained an injury to her neck and proximal left limb girdle, and considers her headaches derive from her neck injury, rather than necessarily being migraine.
Dr Harrison does not provide any opinion on the work capacity of Ms Caruso.
Dr Farag issued a Certificate of Capacity on 28 September 2018 which certified Ms Caruso as being fit for six hours of work per day for three days per week, with a lifting limit of two kilograms and no bending or twisting.
Dr Wassef, from the same practice as Dr Farag, issued a Certificate of Capacity on 5 February 2019 which certified Ms Caruso as being fit for seven hours of work per day for three days per week, with a lifting limit of five kilograms and no restrictions on her driving ability.
Dr Wassef issued a Certificate of Capacity on 7 March 2019 which again certified Ms Caruso as being fit for seven hours of work per day for three days per week, with a lifting limit of five kilograms, no bending or twisting, a maximum standing tolerance of 30 minutes, but no restrictions on sitting or driving.
Dr Wassef issued a Certificate of Capacity on 15 April 2019, which contained the same restrictions on Ms Caruso’s capacity to work as in the Certificate of Capacity dated 7 March 2019, but the hours of work were changed to seven hours per day for two days per week.
Dr Wassef issued a Certificate of Capacity on 17 May 2019, which contained the same restrictions on Ms Caruso’s capacity to work as in the Certificate of Capacity dated 7 March 2019, but the hours of work were changed to four hours per day for four days per week. That certificate also includes: “flare up of neck ++ lately ?? Cause” and “NEEDS WORK ASSESSMENT.”
Dr Wassef issued a Certificate of Capacity on 13 June 2019, which again contained the same restrictions on Ms Caruso’s capacity to work, but changed the hours of work to five hours per day for four days per week. That certificate again included: “flare up of neck ++ lately ?? Cause” and “NEEDS WORK ASSESSMENT.”
No report has been provided by Dr Farag or Dr Wassef which addresses the work capacity of Ms Caruso during the period for which weekly payments of compensation are now sought by Ms Caruso.
There is a “Health Summary Sheet” dated 12 September 2019 in evidence, although its author is not identified, which provides a list of several different medications being prescribed for Ms Caruso, including Panadeine Forte, Endone, Cipramil and Lyrica.
The report from Pinnacle Rehab
Bernadette Crain, rehabilitation consultant, has provided a report at the request of the respondent dated 18 March 2019.
Ms Crain records Ms Caruso having communication, clerical, administrative and computer skills from many years of employment in office based jobs.
Ms Crain records that Ms Caruso is currently certified with a capacity to work for seven hours per day for three days per week, with a lifting limit of five kilograms, no bending or twisting, a maximum standing tolerance of 30 minutes, and the ability to drive.
Ms Crain records Ms Caruso having lower neck pain of 7/10. She also records that Ms Caruso does not report any restrictions on sitting, standing, walking or driving.
Ms Crain concludes that Ms Caruso possesses the required skills and experience to work as an administration officer, customer service officer, or general clerk for seven hours per day for three days per week.
There is an addendum to that report wherein Dr Wassef provides his signed agreement that Ms Caruso can work seven hours per day for three days per week in the positions of administration officer, customer service officer, or general clerk.
FINDINGS AND REASONS
The claim for weekly payments of compensation
Mr Grimes on behalf of Ms Caruso submits that the Certificates of Capacity issued by Dr Wassef are at odds with the real clinical picture and the continuing symptoms in the neck and headaches which Ms Caruso reports on to several doctors, especially Dr Yu. Mr Grimes refers to Dr Yu recording Ms Caruso as having an increase of pain in the neck and left arm and requiring an injection during the period in which the claim for weekly payments of compensation is now made.
Mr Grimes submits that the work undertaken by Ms Caruso with Top Blokes was piecemeal and was spread out over a working week. He submits that Ms Caruso has no more capacity to work than what is demonstrated by her earnings in undertaking 10 hours of work per week.
Mr Saul for the respondent submits that Dr Wassef is in the best position to provide an assessment of Ms Caruso’s capacity for work, and the restrictions which he has placed on Ms Caruso’s capacity to work should be accepted.
The preponderance of medical evidence supports a finding that Ms Caruso has continued to experience neck pain, especially on her left side, along with pain in her left shoulder region and symptoms in her left hand and recurring headaches.
There is a report from A/Prof Miniter, orthopaedic surgeon, dated 26 April 2019, wherein A/Prof Miniter considers Ms Caruso’s presentation to be implausible and that there is no evidence of a genuine injury and that Ms Caruso is fit for her pre-injury employment. However, Mr Saul made no attempt to rely upon that opinion.
Other than the report from A/Prof Miniter, there is nothing to indicate from the available evidence that Ms Caruso is not genuine in her complaints of pain and the difficulties she has experienced since her injury on 1 December 2016. However, the fundamental issue in this dispute is the extent of Ms Caruso’s incapacity for work as a result of her work injury.
The best evidence on the issue of Ms Caruso’s capacity for work for the period of weekly compensation claimed in this application is that provided by Dr Wassef. In reaching that conclusion I am mindful of the limitations on the information provided in Certificates of Capacity. In DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde), Keating P said at [93]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”
There are instances when caution must be exercised when relying upon Certificates of Capacity, such as where certificates suddenly change from a worker having a significant capacity for work to having no current work capacity at all with no apparent change in symptoms or complaints, or where it is apparent that a doctor is simply printing out the same restrictions in Certificates of Capacity without any consideration of any change in the worker’s condition.
However, each dispute must be considered on its own facts and merits. It is apparent from a review of the Certificates of Capacity which are in evidence that the general practitioners who were seeing Ms Caruso at Sutherland Medical Centre were adjusting their recommendations on the hours of work she could do each week, and the restrictions on her work activities, on an ongoing basis.
In September 2018, which is some 10 months before the period claimed for weekly compensation, Dr Farag had certified Ms Caruso as being fit for 18 hours of work per week, with a lifting limit of two kilograms. By February 2019, Dr Wassef had increased Ms Caruso’s capacity to 21 hours of work per week and increased her lifting capacity to five kilograms.
Dr Wassef reduces Ms Caruso’s capacity to work to 14 hours of work per week in April 2019 and 16 hours per week in May 2019, which coincides with a notation in those Certificates of Capacity of a flare up of neck pain. However, by June 2019 Dr Wassef had increased Ms Caruso’s work capacity to five hours per day for four hours per week, despite still noting a flare up of neck pain in the Certificate of Capacity for that month.
There are no Certificates of Capacity which cover any of the period claimed for weekly compensation in this dispute, perhaps because Ms Caruso did not consider she needed to obtain them once her weekly payments ceased. However, the Certificates of Capacity which were issued over a period of some nine months from September 2018 to June 2019 reveal a considered approach being taken by Drs Farag and Wassef towards Ms Caruso’s capacity for work. Those certificates also consistently confirm a capacity for work of around 20 hours per week, except for some weeks in April and May 2019.
That Dr Wassef was making a conscientious effort to identify Ms Caruso’s capacity for work is confirmed by her agreement with Ms Crain that seven hours of work per day for three days per week in the jobs of an administration officer, customer service officer, or general clerk for was suitable employment for Ms Caruso.
There has been no report provided by Dr Wassef which seeks to qualify what she has set out in her Certificates of Capacity or what she agreed to in the report from Ms Crain.
Dr Farag monitored Ms Caruso’s condition over a couple of years following her injury, and Dr Wassef from the same practice did so for another nine months before the period claimed for weekly compensation in this application. Because of this, those doctors are in a very good position to provide an assessment of Ms Caruso’s work capacity and I accept their assessments as being the best medical evidence on this issue.
Dr Yu has also reviewed Ms Caruso on a regular basis since August 2017, so that he is also in a good position to provide an opinion on Ms Caruso’s capacity for work. His medical report dated 23 January 2020 suggests that Ms Caruso did experience an increase in symptoms in her neck and down her left arm in the latter part of 2019. That report refers to Ms Caruso having had another injection in her neck on 6 November 2019, that she was taking Panadeine Forte and Endone on a regular basis, and that she rated her pain at 9/10.
Although I accept Dr Yu has had an integral role in the treatment of Ms Caruso’s injuries for some years, he does not provide any opinion on Ms Caruso’s capacity for work relevant to the period of weekly compensation claimed.
Furthermore, the opinion which Dr Yu provides in his report dated 21 April 2021 that Ms Caruso “is most probably unable to assume any job role” is not consistent with Ms Caruso’s own evidence that she has been able to work in administration work and pet minding work, even though such work has been on an intermittent basis.
Dr Yu does refer to Ms Caruso’s “ongoing medication management for her pain condition”, which can affect her ability to engage in specific work activities, in his report dated 21 April 2021. However, Dr Yu does not provide any details of what those specific work activities might be.
It is apparent from the reports of Dr Yu dated 30 May 2019 and 23 January 2020, and the “Health Summary Sheet” dated 12 September 2019, that Ms Caruso was being prescribed (and was presumably taking) several different medications, including Panadeine Forte, Endone, Cipramil and Lyrica, in the second half of 2019. I consider it reasonable to infer that Dr Wassef, as the general practitioner for Ms Caruso, would have been aware of this but was still prepared to certify Ms Caruso as being able to undertake 20 hours of work per week in June 2019. There is no evidence of any change in that certification by Dr Wassef during the remainder of 2019, and no other opinion on Ms Caruso’s work capacity during that same period from any other medical expert.
Dr Harrison was in an ideal position to provide an opinion on Ms Caruso’s capacity for work because he saw her in the middle of the period that Ms Caruso has claimed weekly compensation. However, Dr Harrison does not provide any opinion on this issue.
The tax invoices rendered by Ms Caruso to Top Blokes during the period that weekly compensation is claimed indicate that Ms Caruso did about two hours a day over a five day working week. That evidence supports the argument made by Ms Caruso that she was pacing herself relative to her disabilities and that she had no more capacity than 10 hours of work per week during this period.
However, caution needs to be exercised when considering Ms Caruso’s evidence regarding the extent of her capacity for work. Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 (Figueira), was a decision which involved a psychological injury, but the caution expressed by DP Roche when considering a worker’s subjective view of his or her capacity for work has a more general application when he said at [38]:
“…a worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury, and the Arbitrator was not bound to accept the job applications as evidence of a capacity to work. He had to consider the whole of the evidence, including the medical evidence, and make an assessment based on that evidence.”
There is no medical opinion which supports the claim made by Ms Caruso that two hours or so of work each day was the optimum level of Ms Caruso’s work capacity.
I reiterate my conclusion that Dr Wassef provides the best evidence in regard to Ms Caruso’s capacity for work during the period claimed for weekly compensation because she had been monitoring Ms Caruso’s condition for some time in her capacity as the general practitioner for Ms Caruso, she is the only doctor who provides a definitive assessment of Ms Caruso’s work capacity close to the period when weekly compensation is claimed by Ms Caruso, and she confirms her certification of the extent of Ms Caruso’s work capacity when asked by Ms Crain in her vocational assessment report.
Dr Wassef does change her assessment of Ms Caruso’s work capacity from seven hours per day for three days per week in March 2019 to less hours in April and May 2019, before then increasing his assessment to five hours per day for four days per week in June 2019. Given that her certification of 20 hours per week is the closest to the period when weekly compensation is claimed by Ms Caruso, and there is no evidence of any change to that certification thereafter, I have determined that Ms Caruso was suited to 20 hours of work per week in the period from 29 July 2019 to 30 December 2019.
The restrictions on Ms Caruso’s work capacity which are set out in the Certificates of Capacity from Dr Wassef dated 7 March 2019, 17 May 2019 and 13 June 2019 would still allow Ms Caruso to undertake work as an administrative assistant or general clerk. Mr Grimes did not argue against those jobs as being suitable for Ms Caruso. His argument was in regard to the amount of hours that Ms Caruso could work each week in such jobs due to her injury.
Mr Grimes submits that the appropriate hourly rate in a job that Ms Caruso was suited for should be $21.71 per hour, which is based on an hourly rate of her PIAWE of $826.25. However, a review of Ms Caruso’s earnings with the respondent which has been relied upon to calculate her PIAWE at $826.25, reveals that she was paid an hourly rate of $38.52. That is a rate that is $5 per hour higher than an administration officer, and $10 per hour higher than a general clerk, as set out in the vocational assessment report from Ms Crain dated 18 March 2019.
In Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), DP Roche said at [62]: “the determination of what is suitable employment is a practical exercise ‘having regard to’” the criteria set out in section 32A of the 1987 Act. In my view that practical exercise must not only be in regard to what is suitable employment, but also what are the relevant rates of pay for such employment.
Although Ms Caruso was paid at a rate of $38.52 per hour while she was employed with the respondent in 2016, she was only able to charge a rate of $25 per hour when working for Top Blokes. That indicates the difficult bargaining position that Ms Caruso was placed in for the sale of her labour as a result of her injury. Ms Caruso had also not been engaged in any permanent employment for over a year prior to the period when she now claims weekly compensation.
Those are factors to be considered in undertaking a practical exercise in determining the relevant rate of pay for employment which Ms Caruso is suited for. Given those circumstances which Ms Caruso has been placed in since ceasing her employment with the respondent, I do not consider that the relevant rate of pay in suitable employment should be any more than an appropriate award rate of pay.
An award which is appropriate for the employment that Ms Caruso is suited for is the Clerks – Private Sector Award 2020. A level 2 employee under that award utilises more skills than the menial tasks required of a level 1 employee under that award. However, a level 3 employee utilises specialised skills which Ms Caruso might not necessarily have.
It would therefore seem that a level 2 employee is a position which the applicant was suited for between 29 July 2019 to 30 December 2019, given the skills she acquired and used during her employment with the respondent, and which have been set out in the report from Ms Crain. The hourly rate for a level 2 employee under the Clerks – Private Sector Award 2020 in the relevant period claimed by Ms Caruso was $23.09 per hour.
I therefore find that Ms Caruso was able to earn $461.80 per week in suitable employment in the period from 29 July 2019 to 30 December 2019, being the ability to earn $23.09 per hour for 20 hours of work per week.
At the telephone conference on 5 October 2021, I issued a Direction that each party was to file and serve a wages schedule which attached or referred to all documents necessary to calculate the applicant’s PIAWE. The solicitors for Ms Caruso set out their calculations of PIAWE, whereas the solicitors for the respondent merely asserted that $804.54 was the PIAWE for Ms Caruso, without setting out how that was calculated. The solicitors have made a genuine attempt to calculate PIAWE and I accept that calculation of $826.25.
Ms Caruso should also get the benefit of the increase in her PIAWE from the time of the injury to the period during which she claims weekly compensation. Using the indexed adjustments set out on page 9 of the SIRA Workers Compensation Benefits Guide, October 2021, I have calculated the indexed PIAWE for Ms Caruso to be:
(a) $870.78 per week from 29 July 2019 to 30 September 2019, and
(b) $876.09 per week from 1 October 2019 to 30 December 2019.
Eighty per cent of $870.78 amounts to $696.62. Eighty per cent of $876.09 amounts to $700.87.
There will therefore be an award in favour of Ms Caruso pursuant to section 37 (3) of the 1987 Act as follows:
(a) $234.82 per week from 29 July 2019 to 30 September 2019; and
(b) $239.07 per week from 1 October 2019 to 30 December 2019.
The claim for medical expenses
The decision by the insurer of the respondent to dispute the payment of ongoing medical treatment was based on the opinion of A/Prof Miniter that “the treatment she has been given to date has been ineffective and unnecessary.”
However, that opinion is contrary to most of the other medical evidence made available in this dispute. I have accepted that Ms Caruso is genuine in her complaints. Even though Dr Yu has not been of assistance on the issue of capacity for work, his reports have set out ongoing efforts to help Ms Caruso deal with ongoing pain in her neck and left arm and recurring headaches.
It is apparent that Ms Caruso has required treatment for a psychological condition, although a claim for psychological injury was not made part of this dispute and will not be adjudicated upon.
The preponderance of medical evidence does support a finding that the respondent should meet the costs of reasonably necessary medical treatment for the injury that Ms Caruso has sustained to her neck and left upper limb.
There will therefore be an order that the respondent is to pay the reasonably necessary medical expenses for treatment for the injury Ms Caruso has sustained to her cervical spine and left upper limb.
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