Chand v Kincare Health Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chand v Kincare Health Services Pty Ltd [2024] NSWPIC 682
APPLICANT:	Pushpa Chand
RESPONDENT:	Kincare Health Services Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	6 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; work capacity decision; whether applicant totally incapacitated and likely to remain so indefinitely, and therefore entitled to receive weekly compensation pursuant to section 38; section 32A factors taken into consideration in determining whether applicant fit for suitable employment; necessity to take into consideration the effects of both the applicant’s physical injury and her secondary psychological condition in determining whether the combined effects of the injuries leave her with residual capacity for employment; Held – the applicant is totally incapacitated for employment and likely to remain so; the respondent is to pay the applicant weekly compensation at the agreed rate pursuant to section 38 from 14 October 2024 to date and continuing; the respondent is to pay the applicant’s past reasonably necessary medical and treatment expenses pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her lumbar spine and right knee, together with a secondary psychological injury in the course of her employment with the respondent on 3 July 2020. 2. The applicant’s pre-injury average weekly earnings (as adjusted for indexation) are $739 per week. 3. As a result of her injury, the applicant has been totally incapacitated for employment from 14 October 2024 to date and is likely to remain so indefinitely. 4. Pursuant to s 38 of the Workers Compensation Act of 1987, the respondent is to pay the applicant weekly compensation at the rate of $591.20 per week from 14 October 2024 to date and continuing. 5. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

There is no issue that on 3 July 2020, the applicant, Pushpa Chand, suffered an injury to her lumbar spine and right knee in the course of her employment with Kincare Health Services Pty Ltd (the respondent). There is also no dispute that the applicant suffered a secondary psychological injury as a result of her physical injuries arising on that date.
On 4 July 2024, the respondent’s insurer issued a Work Capacity Decision under s 43 (1) (b) of the Workers Compensation Act 1987 (the 1987 Act) asserting the applicant is currently able to work in suitable employment for five hours per day, three days per week, in the selected occupation of florist assistant, library assistant and bakery assistant.
The applicant challenges the work capacity decision and claims weekly compensation from 14 October 2024 to date and continuing at the rate of $591.20 pursuant to s 38 of the 1987 Act. The respondent alleges the applicant has residual capacity for employment and is therefore not entitled to receive payments by virtue of the operation of s 38 (1).

ISSUES FOR DETERMINATION

The parties agree that the only issue for determination is whether the applicant is totally incapacitated for employment and likely to remain so indefinitely.
In the event there is a finding for the applicant on this issue, she will receive payments as claimed pursuant to s 38. If there is a finding the applicant has residual capacity, there will be an award for the respondent on the claim for weekly benefits.
There was agreement during the conciliation phase that the applicant is entitled to a general order for past medical expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY 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 hearing on 4 December 2024. At the hearing, Mr Carney instructed by Mr Taljaard acted for the applicant. Mr Hickey instructed by Ms Faapito appeared for the respondent.

EVIDENCE

Documentary evidence

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

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Incapacity for employment

As noted, the parties have reduced the matter in dispute to a single issue, namely whether the applicant is entitled to ongoing weekly payments at the expiry of the second entitlement period, pursuant to s 38 of the 1987 Act.
For the respondent, Mr Hickey submitted the vocational capacity assessment relied on by the respondent was broadly in line with the Certificates of Capacity authored by the applicant’s general practitioner, Dr De Mel. He noted the work capacity assessment carried out by the respondent in May 2024 and the subject of the report dated 10 June 2024 listed three occupations which the respondent submits the applicant could carry out, namely a florist assistant, bakery assistant, and library assistant.
Although the latter two occupations were subject of the report, the focus of submissions at the hearing related to the role of florist assistant. In my view, that focus was appropriate as the physical requirements of working as a library and bakery assistant respectively would, in my view be excessive for the applicant. Although Mr Hickey did not concede that point, his submissions focused in particular on the role of florist assistant.
Mr Hickey took the Commission to a number of medical reports relating to both the applicant’s physical and psychological injuries. Those reports frequently indicate she had some residual capacity for employment, varying between 2 and 15 hours per week. The respondent also placed some store in the applicant’s general practitioner having certified her fit for 15 hours per week on suitable duties.
However, as Mr Carney noted, Dr de Mel in fact altered the applicant’s certified capacity from a mere two hours per day for two days per week to 15 hours per week after a discussion with the vocational rehabilitation report writer. I do not criticise either practitioner for undertaking that discussion or for their approach, however, it does appear that given Dr de Mel provided no explanation for the alteration in capacity, his doing so was something of an artifice brought about by the vocational capacity report and his interaction with its author.
The applicant has an overlay of physical and psychological symptoms. She has been certified as having some residual capacity in relation to both her physical injuries and her psychological injuries, however, in order to deal with the matter appropriately, it is necessary to determine her overall capacity, taking into consideration both impairments operating together as opposed to separately assessing them as the relevant specialists have in providing their opinions.
The medical evidence discloses that as long ago as August 2021, the applicant indicated she would be interested in returning to work. There is therefore no criticism of her approach or any suggestion of malingering on her part. Mr Hickey submitted the work capacity report examined real jobs and identifies three potential areas of employment for the applicant, in particular that a florist assistant which would enable her to earn $375 per week. He submitted the assessment was a reasonable one and her role would enable her to take rest breaks and move between sitting and standing, as well as having days off in between her work.
The applicant set out uncontested statement evidence detailing her ongoing physical symptoms at [39] of her statement. Her ongoing psychological symptoms were set out at [40]. I do not propose to repeat them in these reasons, as they are uncontested. Additionally, the applicant deposed to diminished interest and enjoyment in daily activities, including struggling to attend to household chores and tasks which render her dependent on her husband and daughter.
Since her injury, the applicant indicated she no longer exercises, and her grooming has fallen by the wayside. She stated she is also unable to drive long distances as doing so exacerbates her pain.
In order to assess an injured worker’s residual capacity for suitable employment, it is necessary to examine a number of considerations set out in s 32A of the 1987 Act. In doing so, it is necessary to have regard to the nature of the worker’s incapacity including but not limited to any certificate of capacity provided by their treating doctor; the worker’s age, education, skills and work experience; any return to work plan prepared; any occupational rehabilitation services that are being provided to the worker, and such other matters as the guidelines may specify.
It is also appropriate to examine the applicant’s prior education and employment history in order to assess whether the jobs which are said to be appropriate for her are ones which she could carry out.
In relation to her prior education and employment history, the applicant said:
“8.     I completed my schooling up to Year 12 in Fiji, where after I studied diploma in bookkeeping in Fiji.
9.      Prior to working for the respondent, I worked at TAFE for seven years. My job title was ‘store person’.
10.    At this job, I used to deal with collating and stacking orders and doing the related paperwork and respective academic materials supplied to students and other TAFE branches.
11.    I have no experience working with flower arrangements or in a flower shop. I have never been involved in arranging flowers, nor have I done any ornamental or artistic work with flowers for myself or others.
12.    I have told my rehab manager at some point that I have an interest in baking. However, I only did baking at home, for my family. I have never worked in a commercial kitchen or made baked goods commercially.”
The applicant deposed to ongoing pain down the right side of her back which radiates into her right buttock and the outside of her right leg to her knee. She described her right knee as swollen all the time and prone to giving way on multiple occasions, occasionally causing her to fall to the ground. She states the last occasion this happened was as recently as 8 October 2024.
The applicant states she has lost confidence in walking and performing any physical activity due to her knee, remains having difficulties performing housework due to her back and knee pain, can only stand for 10 minutes and walk for no longer than 10 minutes, has gained weight as a result of prolonged physical inactivity and also requires ongoing treatment for her psychological condition.
The applicant indicated that prior to Dr de Mel increasing her stated capacity to five hours per day, three days per week as a result of a request from the rehabilitation provider in order to help the applicant provide suitable duties, she had been assessed as having capacity of two hours per day, two days per week owing to the severity of her symptoms. She states her symptoms have not changed since her capacity was upgraded.
The complicating factor in this matter is that a number of medical practitioners suggest the applicant has some capacity relating to her physical impairments, while others suggest there is a residual capacity relating to her psychological condition. The role of the Commission is to attempt to assess whether the applicant has residual capacity, having regard to all of her injuries and their effects upon her, while keeping in mind the considerations set out in s 32A.
In my view, the evidence does not establish the applicant’s condition as having progressed and alleviated to the point where her realistic capacity is as high as that set out in the vocational assessment report. This being so, it seems to me that the applicant effectively has a total incapacity for employment, noting it is not suggested there are any suitable duties available to her to work for two hours per day, two days per week.
As Mr Carney noted, the applicant has no transferable skills to work as a floristry assistant. Mr Hickey submitted essentially, there were no real skills beyond general tidying up and moving items around required in the role. However, the applicant, as noted in her statement, currently relies on the use of a walking stick and walking frame to mobilise. I accept Mr Carney’s submission that her current symptoms present as extreme and severe. The applicant set out her attempts to job seek in her previous role and she has no artistic skills or practise in making flower arrangements.
I accept Mr Carney’s submission that absent any explanation from Dr de Mel as to why the applicant’s capacity for employment has suddenly changed from four hours per week to 15 per week, the only evidence which goes to her ongoing incapacity and her symptoms is that of the applicant herself. I accept that evidence, as there is no suggestion she is anything other than a witness of truth.
Mr Carney took the Commission to the reports of Mr Kim, psychologist, who noted the proposed occupations set out in the vocational report were not suitable for the applicant. In his report, Mr Kim provided the following opinion in relation to the job matches:
“24. After assessing Ms Chand and reviewing the documents available to me, I conclude that Ms Chand is not suitable for employment in any new pathways currently and requires the following:
a.Ongoing psychological therapy to help her manage and cope with her severe psychological injuries, which have so far not been adequately treated.
b.Ongoing physical treatment to assist with her lower back and right knee injuries.
c.Appropriately tailored vocational support, retraining, and return to work planning as opposed to general vocational suggestions and labour market assessments that do not benefit Ms Chand or fit within her vocational profile.
d.Facilitation of an appropriate work trial placement with a suitable employer when ready.
e.A thorough assessment of her current transferable skills and retained abilities to accurately reflect suitable employment avenues where appropriate.
25. After assessing Rehab Management’s labour market analysis, the following employers have been contacted:
a.Labour Solutions Australia was contacted. Nick advised that they could not assist with the enquiry regarding an ‘instore florist’ position. Furthermore, Ms Chand’s treating doctor has given her a working capacity of two hours per day, two days per week - but based on the labour market analysis report for the instore florist position; the employer confirmed they can accommodate five hours per day, three days per week in a casual position.”
Mr Kim opined, after attempting to contact employers that there were, in fact, no suitable jobs available for the applicant to work in accordance with the labour market analysis.
Mr Carney also took the Commission to the report of Dr Ereve, consultant psychiatrist, independent medical examiner (IME), who provided a report dated 19 September 2024. Dr Ereve noted the applicant’s status as follows:
“Symptoms of Pushpa Chand’s workplace psychological injury (with the exclusion of pain symptoms) are so severe as to have the following impacts:
·Pushpa cannot live independently without regular support. Pushpa needs prompting to shower daily and wear clean clothes. Pushpa frequently misses meals.
·Pushpa requires basic support from her daughter at least twice a week. Pushpa rarely goes out to social events, and mostly when prompted by family or close friend. She will not go out without a support person. Pushpa is not actively involved, remains quiet and withdrawn.
·Pushpa can travel without support person, but only in a familiar area such as local shops, visiting a neighbour, and she suffers significant anxiety when leaving the house.
·Pushpa’s marriage deteriorated leading to a separation following the workplace injury.
·Pushpa can only read a few lines before losing concentration. She has difficulties following simple instructions. Concentration deficits were obvious even during brief conversation. Pushpa needs regular assistance from relatives or community services.
·Pushpa is unable to work more than two hours twice a week in a volunteer role.”
As Mr Carney noted, attending work in a volunteer capacity is not the equivalent of paid employment. He submitted that effectively, the preponderance of the evidence establishes the applicant has no capacity for employment and the jobs which the respondent has relied on for the applicant are in fact unsuitable to her.
In particular, Mr Carney noted the duties required of a florist assistant is set out in the work capacity decision, and submitted the applicant’s physical and psychological conditions combined plainly rendered her unable to carry out those duties.
Mr Carney submitted the applicant is effectively totally incapacitated for employment and is likely to remain so indefinitely.
In reply, Mr Hickey submitted that Dr Kim’s opinions regarding capacity have been superseded by the subsequent work capacity certificate which gave the applicant a higher degree of capacity. However, I note that capacity is unexplained and appears to have been decided upon in order to support the work capacity decision and provide avenues for the applicant to return to work in jobs which, in my view, she is unsuited for and incapacitated for.
I reiterate I do not criticise Dr de Mel for the change in stance, only that there is no explanation for it such as to warrant acceptance of such a marked increase in alleged capacity in so seriously injured a worker.
On balance, I am satisfied the preponderance of the lay and medical evidence establishes the applicant is in fact totally incapacitated for employment and is likely to remain so indefinitely. This being so, the respondent will be ordered to pay the applicant weekly compensation at the claimed rate pursuant to s 38 of the 1987 Act

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 682

6 December 2024