Ciraolo v Tempe Tyres & Wheels Centre Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ciraolo v Tempe Tyres & Wheels Centre Pty Ltd [2025] NSWPIC 91
APPLICANT:	Jacob Ciraolo
RESPONDENT:	Tempe Tyres & Wheels Centre Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	18 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by dyslexic 20-year-old for weekly payments of compensation following work capacity assessment; whether dyslexia negated recommendation by insurer’s vocational expert; whether recommendations generally infringed section 32A; whether recommendations were not a ‘real job’; Held – dismissing application; dyslexia not a barrier to recommended employment of data entry operator; assumption made by applicant’s vocational assessor not sufficiently supported by facts; section 32A submissions made with an eye too keenly attuned to error; roles recommended were ‘real jobs’; Wollongong Nursing Home Pty Ltd v Dewar, Westpac Banking Corporation v Mani, and Popal v Myer Holdings Pty Ltd considered and applied.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant’s pre-injury average weekly earnings as at 4 October 2024 was $1,080. Pursuant to s 37 of the Workers Compensation Act 1987, his entitlement to weekly payments of compensation is $864. 2. The applicant is currently suited to employment such as a data entry operator and can earn $942 per week. The Commission determines: 1. There is an award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Jacob Ciraolo, the applicant brings an action for weekly payments of compensation against Tempe Tyres & Wheels Centre Pty Ltd , the respondent.
Dispute notices were issued and the matter was duly brought before the Personal Injury Commission (Commission).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) should the respondent's Work Capacity Assessment be set aside.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard at the Commission on 19 February 2025. Mr Dewashish Adhikary appeared for the applicant, instructed by Mr Boitano of Messrs Barwick Boitano Lawyers. The respondent was represented by Mr Ross Hanrahan instructed by Ms Maybel Yang of Messrs Bartier Perry Lawyers. Mr Paul Leonard appeared to the insurer for some reasons.
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) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application in relation to oral evidence.

FINDINGS AND REASONS

Background

Mr Ciraolo was born in 2004 and is aged only 20 years. The respondent has accepted that he was injured on 3 July 2023 whilst performing manual duties doing repetitive lifting, moving and carrying of heavy tyres.
He began to develop gradual pain in his right shoulder and soon after started feeling pain in his left shoulder.
Liability was admitted and at teleconference on 13 February 2025, an order was made referring both shoulders for assessment by a medical assessor pursuant to s 66.
Mr Ciraolo was in receipt of workers compensation until 4 October 2024 when as a result of a work capacity assessment, the insurer in a s 78 Notice dated 3 July 2024[1] advised that weekly payments of compensation would be ceasing at that time.
[1] ARD page 10.
The s 78 Notice relied on a Vocational Assessment report by “Beneco” of
29 September 2023.[2]
[2] Reply page 79.
Mr Ciraolo relied on a Vocational Assessment report obtained on 4 November 2024 from Rebecca Hamett, Rehabilitation Counselor with Skilled Health.[3]
[3] ARD page 105.
“Beneco” noted:[4]
[4] Reply page 80.
· Mr Ciraolo reported he has dyslexia which may affect his typing/writing and reading to some extent, and
· as Mr Ciraolo is relatively young, his education and work experience were reportedly limited.
After assessing Mr Ciraolo, three jobs were suggested by the authors that he would be able to do on light duties. These were:
·        ICT sales assistant;
·        ICT customer support officer, and
·        data entry operator.

Statement by applicant

Mr Ciraolo made a statement dated 5 December 2024.[5] He said:
[5] ARD page 3.
“7.   I have been diagnosed with dyslexia since primary school which affects my ability to type, write, read and retain new information.
…
8.      After finishing school, I worked on a casual basis at my cousin’s cafe, Bar Briscola, as a general hand and dishwasher. I would work maybe 2-3 days a week depending on how busy the cafe was. My duties included dishwashing, clearing and cleaning tables. I did not have any customer interaction or service responsibilities.
…
24.    I have not been able to return to any work since 21 July 2023 and continue to struggle with pain in both my shoulders which limits work I would be able to do. I don’t think I’ll ever be able to go back to work in something that involves manual labour, given what happened to me when I was working for Tempe Tyres and the risk of making my shoulders worse. Even light manual work, like what I’d learnt from working at the café would cause the pain in my shoulders to flare up.
…
25.    Although I am studying to try and get into work that is not reliant on manual labour, the pain in my shoulders continues to wake me up at night which affects my ability to concentrate on my studies. I feel like I’m not as productive as I was previously and it takes me longer to do things.
…
31.    The insurer has issued a work capacity decision which determines I can perform a role in ICT customer support for 8 hours a day 5 days a week and earn $1,200 a week in this employment where the pay is $30/hour.
32.    I have never worked in any customer service/support role. I think my lack of experience in this industry would make me unsuitable for this position.
33.    Further at my age (20) I am not entitled to receive full adult pay. I don’t think $30/hour is a realistic estimate of pay for me and I doubt that would be offered to me.
34.    I don’t know anyone my age that receives $30 per hour. Someone older, or at least 21 years of age would probably be entitled to earn that amount, but I’m not even entitled to be paid at the full minimum wage given I’m still 20 years old.”

2014 Dyslexia report

A Dyslexia Assessment & Educational Recommendations report was lodged on Mr Ciraolo’s behalf. It was dated 22 July 2014, and related to Mr Ciraolo’s situation when he was almost 10 years old and a student at St Joseph’s Rockdale.[6] The author was not identified, but it was written under the heading “dta Dyslexia Testing Australia.” The report noted that
Mr Ciraolo was struggling with aspects of literacy, and that tests indicated that “in several ways.. he is dyslexic.”
[6] ARD page 157.
The report outlined the various problems that dyslexic students could be expected to encounter which included confusion, lack of comprehension and mistakes when words were encountered that had no visual meaning. Dyslexics also commonly would mishear or garble words or the sequence of words in sentences.

Rebecca Harnett Vocational Assessment

A Vocational Assessment Report was written by Rebecca Harnett, Rehabilitation Consultant, under the letterhead “Skilled Health.” It was dated 4 November 2024, and had been commissioned by Mr Ciraolo’s solicitors.[7]
[7] ARD page 105.
Ms Harnett noted that Mr Ciraolo’s employment capacity for some type of work had been assessed by his general practitioner (GP), Dr Oreb, for eight hours five days per week.
Ms Harnett surveyed the opinions from orthopaedic surgeons Dr Yuk Kai Lee and Dr Jeffrey Petchell, noting “there is a consistent opinion regarding Mr Ciraolo’s injury history and mechanism of injury.” At the time of her assessment, Ms Harnett noted that Mr Ciraolo still experienced bilateral shoulder symptoms, and that he was capable of doing suitable duties, but with restrictions:
“● Avoid working with arms above shoulder level
· Fit for office duties.”
In commenting on Mr Ciraolo’s education and training, Ms Harnett noted that he did not obtain his Higher School Certificate because of his dyslexia, but that he had “recently completed a Certificate IV Information Technology (Gaming Development)…. and as commenced a Diploma of Gaming Development.” Ms Harnett noted that the courses were online and self-paced, so that he could mitigate the impact of his dyslexia.
Each of the proposed roles suggested by Beneco, Ms Harnett was asked to comment on. As to the suggested role of ICT Customer Support, Ms Harnett noted that the title was an alternative for the role of a Computer Helpdesk Operator. She stated that such a role had a light to medium physical demand involving lifting up to 23kg occasionally, 11kg frequently and a significant degree of standing and walking. She said also that Mr Ciraolo lacked the necessary transferable IT-related skills, experience and qualifications to be a competitive candidate for employment. In answer to further questioning Ms Harnett said that Mr Ciraolo “has some aspects of transferable skills that may make in a suitable candidate for select entry level roles.”[8] Ms Harnett noted that it was “ possible some roles provide the opportunity for on-the-job training , however the labour market research completed … did not support this.”
[8] ARD page 111.
As to whether Mr Ciraolo could earn the quantum of $30 per hour, as suggested by the insurer, Ms Harnett said that there was no industry award that covered a non-qualified IT employee and that such an employee could be covered by “an occupational award such as the Clerks award” the Miscellaneous Award or indeed could be award free. She referred to the special national minimum wage applicable to an award free junior employee and stated that the rate was relevantly $23.55 per hour, based on 38 ordinary hours for a 20 year old.
Ms Harnett said that the earnings identified by Beneco were incorrect and that, if the role of ICT Customer Support was a suitable option the appropriate rate would be $23.55 per hour.
When asked whether the role of Sales Assistant - Information and Computing Technology, or Data Entry Operator would be suitable employment pursuant to s 32A of the 1987 Act
Ms Harnett advised that the Sales Assistant role was beyond Mr Ciraolo’s functional capacity in accordance with Dr Lee’s opinion of 15 April 2024 and that, given Mr Ciraolo had already completed a work trial as a Data Entry Operator but found that his dyslexia was an impediment to his maintaining accuracy and performing the requirements of the role, it was not suitable.
Ms Harnett thought that there was a potential risk of aggravation to Mr Ciraolo’s condition in both the Sales Assistant and ICT Customer Support positions, due to the need for him to lift beyond his functional capacity and for constant upper limb activity. The role of Data Entry Operator would pose very little risk in that regard as it was sedentary.
Ms Harnett concluded her report by noting “the role of Data Entry Operator is the only suitable role that is within Mr Ciraolo’s skills, experience, qualifications and functional capacity at the time of assessment.”[9] She noted however that he was likely to experience ongoing difficulty due to his dyslexia.
[9] ARD page 114.

Beneco Vocational Assessment

The insurer relied on a report prepared by Beneco dated 29 September 2023.[10] As is usual with such reports, it consisted of a Vocational Assessment Report, Labour Market Analyses and medical endorsement by the GP, in this case Dr Zelco Oreb.
[10] Reply page 75, ARD page 16.
The Vocational Assessment Report contained much technical data, but relevantly noted at the time of the assessment that Mr Ciraolo was then certified by Dr Oreb as having no current work capacity. It noted that Mr Ciraolo was starting his computer course and had then partially completed what appears to be his diploma course. It also noted Mr Ciraolo’s concern that his dyslexia might be an issue if he was offered a role that required a lot of writing.[11] After conducting many tests the authors of the report recommended the three roles mentioned above at [15].
[11] Reply page 36.
The Labour Market Analysis was conducted by the authors contacting potential employers through the medium of the Internet, namely Seek. In relation to the suggested role of ICT Sales Assistant, the authors contacted Harvey Norman, Sony, and Precision Signs.
For the suggested role of ICT Customer Support Officer, the authors contacted Uplift Recruitment, ADF Careers and Grandstand Business Support.
With regard to the third option, Data Entry Operator, the businesses of Livingston, AAA Fresh and WOW recruitment.
The authors explained that in each case, Mr Ciraolo did not actually have any work capacity at that time. However, a further labour market analysis update was given on 26 March 2024 when the authors approached again using Seek businesses of Optus, Jaycar and Canon for option one , Headland Technology, Loxton Companies and TechFlow Services for option two, and Keegan Adams Recruitment, and Vinaes for option three.
A further update was given on 14 May 2024, and again on 25 June 2024. Again, various companies were contacted through Seek and, as was the case with all the companies contacted, the representative could only indicate at best that Mr Ciraolo would be considered.
As is customary with reports of this nature, Beneco forwarded a facsimile to the claimant’s GP which contained details of the three vocational options identified with a description of the duties of each option, its physical demands and an invitation to the GP to either approve or not approve each option.[12] Dr Oreb signalled his approval of each option by ticking the box labelled “Yes, I approve.”
[12] Reply page 65.
Dr Oreb also certified that Mr Ciraolo had the capacity to work eight hours per day five days per week.[13]
[13] eg ARD page 100.

MEDICAL

Dr Yuk Kai Lee, orthopaedic surgeon, reported as medico-legal expert for Mr Ciraolo on
15 April 2024.[14] Dr Lee took a consistent history of the onset of bilateral shoulder pain, considered the radiography and after examination diagnosed “labral injury aggravating the pre-existing glenoid dysplasia.” When asked to advise as to Mr Ciraolo’s work capacity,
Dr Lee said that he could do suitable duties “if available.” He said:[15]
[14] ARD page 81.
[15] ARD page 86.
“Jacob should avoid working with arms above shoulder level. He should avoid lifting more than 5 kg. He is unfit for his preinjury duties. He is fit for office duties.”
Dr Jeffrey Petchell, orthopaedic surgeon, was Mr Ciraolo’s treating surgeon. In his report of 23 January 2024 Dr Petchell advised that Mr Ciraolo could consider returning to work on light duties with reduced hours and a 2kg lifting weight without any lifting above shoulder height.[16]
[16] ARD page 118 at 119.
In his later report of 22 April 2024, Dr Petchell advised “I would allow normal hours with a 5kg lifting limit, with no shoulder height lifting.”[17]
[17] ARD page 120.
Dr Ron Haig, orthopaedic surgeon, was retained as medicolegal expert for the respondent. On 18 July 2024 he took a consistent history of injury and confirmed that Mr Ciraolo was suffering from a developmental glenoid hypoplasia, which had been aggravated by his work duties. He said “I do not believe he is incapacitated for work as a result of the workplace injury.”[18]
[18] ARD page 74.

SUBMISSIONS

Mr Adhikary submitted that the respondent’s vocational assessment report should be set aside. He submitted that it failed to appreciate the effects that dyslexia had on Mr Ciraolo’s learning capacity.
Secondly, it did not deal with the requirements under s 32A regarding skills, education and training, of which Mr Ciraolo, at his young age, had very little.
Thirdly, Mr Adhikary submitted the vocations identified were not suitable as they were not referred to as a “real job”. The issue was whether Mr Ciraolo had current capacity to engage in suitable employment. In their enquires Mr Adhikary said generally that all the employers that were approached said that Mr Ciraolo would need some training. This offended the principle in Westpac Banking Corporation v Mani.[19]
[19] [2019] NSWWCC PD 41.
Mr Adhikary submitted the recommendations from the respondent’s experts were invalid because the occupations that were mentioned needed Mr Ciraolo to be retrained before they would be available to him. They were not real jobs, he said, as Mr Ciraolo would need retraining.
It was submitted that it is impossible to measure Mr Ciraolo’s capacity against that evidence. Mr Adhikary stressed Mr Ciraolo’s young age and that his prior work experience consisted only of bar work and his work with the respondent. Mr Ciraolo did not wish to contemplate surgery and indeed been told that because he was double jointed in both shoulders it was less likely to be successful.
Mr Ciraolo’s previous experience was manual labour, working in a bar and then as a storeworker. It could be accepted that Mr Ciraolo’s dyslexia was a barrier to literacy and
Mr Adhikary stressed that Mr Ciraolo’s TAFE certificate and diploma were not the result of normal study, but had been achieved because the course had been online, and conducted at his own pace.
Mr Adhikary relied on the report of Ms Harnett. The role of ICT Customer Support was not suitable, Mr Adhikary submitted, not only because it is beyond his physical capabilities, but having in mind the provisions of s 32A, was not suitable in any event. Mr Ciraolo had no transferable skills nor the requisite education and training.
The Data Entry Operator job was also unsuitable when Ms Harnett’s report was read in full, Mr Adhiikary said, and in the present circumstances could not be described as a “real” job in the Mani sense. If it were thought to be suitable, Mr Adhikary relied on Ms Harnett’s advice that the remuneration claimed by the respondent was incorrect, given Mr Ciraolo’s background. Whilst it might be suggested that the data entry role was in fact considered suitable by Ms Harnett, Mr Adhikary submitted that with regard to the law, her opinion was to the contrary. Mr Adhikary referred to a work role Mr Ciraolo had trialled and Ms Harnett’s referral to it.
Mr Adhikary referred to some of the contacts made by Beneco to prospective employers. He submitted that the physical requirements of those jobs did not meet Mr Ciraolo’s physical condition, relying on Ms Harnett’s expert opinion. Mr Ciraolo did not possess the skill level described for the role of IC Customer Support Officer.
Mr Adhikary submitted Ms Harnett’s opinion that a survey of the businesses contacted by Beneco did not reflect the roles suggested could be accepted. Most of them required some element of training, and some of them had said that Mr Ciraolo did not have the requisite skills. They were the sort of jobs that were discussed in Mani and Dewar.
Mr Adhikary referred to the labour market analysis of 25 June 2024 in the Beneco report, The roles addressed demonstrated that Mr Ciraolo required training to be able to perform that job.

Mr Hanrahan

Mr Hanrahan submitted that as Mr Ciraolo was certified as fit for 40 hours per week, the relevant issue was the nature of the duties that were suitable.
Mr Ciraolo’s case was that almost none of the roles identified by Beneco were real jobs,
Mr Hanrahan argued, or that those jobs that were real jobs could not be classed as suitable duties pursuant to s 32A of the 1987 Act.

Mr Hanrahan referred to the role of a data entry position, submitting that it was suitable. He said that no training was required, beyond the need for training that exists in any job. There were other occupations that were similarly available. Certificates abounded, Mr Hanrahan said, that confirmed Mr Ciraolo’s capacity to perform 40 hours per week, and he could work as a data entry employee earning $23.55 per hour. Such appeared also to be the opinion of Ms Harnett, he said. Dr Oreb’s last certification was that Mr Ciraolo could do office work.
Mr Hanrahan submitted that the Dyslexia Assessment document dated back to when
Mr Ciraolo was 10, in 2014. Its relevance to Mr Ciraolo’s present ability to perform suitable duties was difficult to see, he said, beyond the possibility that his condition could produce particular skills beyond the normal – particularly in visual matters.
Mr Ciraolo said that even the light work that he had learnt when working in the café would cause the pain in his shoulders to flare up, Mr Hanrahan observed. However, he said, there was no suggestion that Mr Ciraolo had actually tried to do light café work. He submitted that Mr Ciraolo was involved with visual study, and employment in that field would be ideal for him, but Mr Ciraolo’s statement was couched in negative rather than positive terms about his potential ability.
Mr Hanrahan submitted that Mr Ciraolo could not get away from the certification.

Mr Adhikary in reply

Mr Adhikary submitted that Mr Ciraolo’s dyslexia was a factor in considering whether he could do the data entry job. Whilst the Beneco report acknowledged that Mr Ciraolo had that condition, they did not consider it in the assessment or the work capacity decision. There was no evidence that Mr Ciraolo’s condition had improved since the 2014 report.
Mr Adhikary repeated that the data entry role was not suitable because of Mr Ciraolo’s dyslexia. The respondent appeared to have conceded that the ICT support officer that there would be a risk of aggravation, bearing in mind his certification had limitations as to the weights he could carry. Mr Adhikary conceded that he could not say anything against the certification that Mr Ciraolo could work for eight hours per day, five days per week.

DISCUSSION

Work Capacity Legislation

Section 297 of the 1998 Act provides relevantly:
“(1) When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an "interim payment direction" .
….
(3) The President is to presume that an interim payment direction for weekly payments of compensation is warranted unless it appears to the President that-
(a)the claim concerned has minimal prospects of success, or
(b)the worker has returned to work, or
(c) the injury was not reported by the worker as required by section 44 (Early notification of workplace injury), or
(d)insufficient medical evidence is available concerning the period of incapacity of the worker, or
(e)circumstances exist that are prescribed by the regulations as circumstances in which it is not to be presumed that such a direction is warranted.”
It can be seen that there was unanimity amongst the health professionals that Mr Ciraolo had a capacity to work eight hours per day, five days per week. Mr Ciraolo’s medico-legal specialist, Dr Lee said he could work doing office duties. Dr Haig for the respondent said that he was fully fit. His GP, Dr Oreb, approved of each suggested suitable role identified by Beneco, and also certified that Mr Ciraolo was capable of working eight hours, five days per week. Dr Petchell advised that Mr Ciraolo was fit for a “normal hours,” 5kg lifting limit and no shoulder height lifting job.
Accordingly, Mr Adhikary made no submissions that relied on s 297(3) as the above medical evidence rebutted the presumption that an interim payment direction was warranted.
Mr Adhikary had the difficult task of arguing against the opinion of his client’s GP and treating surgeon that Mr Ciraolo had capacity for some type of work 40 hours per week, and against his client’s medicolegal expert opinion that Mr Ciraolo was fit for office duties.
It is not necessary to discuss the options put forward by Beneco for ICT Customer Support Officer and Sales Assistant – Information and Computing Technology, as the data entry role alone presented on its face suitable employment. However, Mr Adhikary submitted that the option of Data Entry Operator was compromised by Mr Ciraolo’s dyslexia. He referred to
Ms Harnett’s opinion in that regard:[20]
“The role of Data Entry Operator with ANZSCO code of 532111, is defined by the ACC ( as having a sedentary work demand, which is within Mr Ciraolo’s functional capacity at the time of assessment. The Assessor notes that the role requires no formal qualifications for entry level positions and no prior experience. Given Mr Ciraolo completed a work trial in this role previously and experienced difficulty with maintaining accuracy and performing the requirements of the role due to the impacts of his dyslexia, this role may not be deemed suitable, despite Mr Ciraolo having the identified transferable skills and the labour market feedback from employers as detailed in the Labour Market Assessment completed by Beneco dated 25/06/2024.”
[20] ARD page 113.
In her conclusion, Ms Harnett said:[21]
“With regard to suitable employment and Mr Ciraolo capacity to engage in employment at the time of assessment and reporting, the Assessor notes that the role of Data Entry Operator is the only suitable role that is within Mr Ciraolo’s skills, experience, qualifications and functional capacity at the time of assessment. The Assessor notes that Mr Ciraolo is likely to experience ongoing difficulty in this role due to the impacts of his dyslexia as noted in the body of this report.”
[21] ARD page 114.
The evidence regarding Mr Ciraolo’s dyslexia is scant. It was not mentioned by Dr Oreb, nor was it mentioned by Dr Petchell. The medicolegal experts, Dr Lee and Dr Haig also failed to note this condition. The only evidence was the Dyslexia Assessment Report of 22 July 2014, when Mr Ciraolo was a schoolboy aged almost 10. Mr Adhikary submitted that there was no evidence that Mr Ciraolo’s dyslexia had improved since then, but it is of interest that none of the medical practitioners mentioned his condition. I was not addressed on this point, but the questions arise as to whether the medical practitioners were aware of this condition, but did not think it relevant, or whether they all neglected to obtain that history. It is probable that
Dr Oreb at least would have been aware of Mr Ciraolo’s dyslexia and his endorsement of the proposed options from Beneco infer that he did not consider the condition to be a barrier.
Ms Harnett advised that Mr Ciraolo’s dyslexia caused difficulty in maintaining accuracy and performing the requirements of the work trial Mr Ciraolo completed “previously.” This trial was said to have taken place for one week in September 2021, according to the Beneco report.[22] Ms Harnett did not otherwise refer to this trial, and Mr Ciraolo failed to mention it in his statement, saying only at [7] that he had been diagnosed with dyslexia since primary school and that it affected his ability to “type, write, read and retain new information.”
[22] Reply page 22.
I note Mr Adhikary’s submission that Ms Harnett’s apparent support for the position of a data entry operator was indeed that it was not a suitable role when her evidence was viewed as a totality. He argued that whilst Ms Harnett did say that this was “the only suitable role that was within Mr Ciraolo’s skills, experience and functional capacity,” her reference to his previous work trial had the effect of nullifying that opinion. I have some difficulty in accepting that interpretation, as Ms Harnett’s opinion was not sufficiently supported by evidence of the facts on which this opinion was based. The failure by Mr Ciraolo to mention it in his statement or in the histories he gave to the medical practitioners prima facie indicates that he did not regard that experience as being relevant to his present situation. He discussed the Beneco report in his statement from [31], but only referred to the ICT customer support role as being unsuitable, saying his lack of experience in customer service/support made his unsuitable. Further, Ms Harnett’s description of the “work trial in this role” did not sufficiently particularise the circumstances she was relying on. She did not state when the role occurred, nor what duties Mr Ciraolo was required to do, nor that he was in the job for only one week, nor the reasons why he ceased that trial.
Whilst the Beneco report is somewhat formulaic, it is relevant that Mr Ciraolo’s dyslexia was noted, and that the authors had the history of the 2021 data entry trial. The authors stated:[23]
‘It is anticipated that Mr Ciraolo may face difficulty with transitioning to new employment should the rehabilitation goal change. Mr Ciraolo reported that he has dyslexia which can cause reading and writing to be difficult at times. Mr Ciraolo mentioned it may be an issue if the role as a lot of writing.”
[23] Reply page 94.
For these reasons I am not satisfied that Mr Ciraolo’s dyslexia acted as a barrier to his finding data entry work.
Section 32A of the 1987 Act provides:
“Section 32A of the 1987 Act provides relevantly:
‘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 submission that the Benecon report was deficient because it did not adequately deal with Mr Ciraolo’s young age regarding skills, education and training was perhaps made with an eye too keenly attuned to error. The Benecon report recorded accurate histories which included Mr Ciraolo’s age and background. It acknowledged that Mr Ciraolo was under 20 years old at the date of assessment. It set out Mr Ciraolo’s education and training history accurately, and similarly noted his employment history.[24] It noted Mr Ciraolo’s dyslexia, as indicated above. It referred to Mr Ciraolo’s education, work experience, licencing and transferrable skills for employment.
[24] Reply from page 20.
The real challenge to the recommendations of the Beneco report was that the roles suggested were unrealistic, and did not constitute actual roles Mr Ciraolo could perform. This was certainly true of the jobs canvassed as at the date of the Beneco report,
29 September 2023, which the report acknowledged itself. For most of the jobs it recommended it conceded when discussing the “hours”:[25]
“Beneco and the employer discussed Mr Ciraolo's no capacity with projection to have capacity in the future, it was confirmed the employer would consider Mr Ciraolo once their availability is increased to the required hours.”
[25] Reply pages 84,85,86,88,89,92 and 93.
In discussing the “physical demands” of each job with prospective employers, the Beneco report repeated:[26]
“Beneco discussed the physical demands of this role with the employer. The employer advised the role would be light to medium manual handling. Beneco advised the employer Mr Ciraolo's restrictions is to not work currently, though it is projected with continued treatment they will be able to complete the tasks discussed in the future.” (Emphasis added in both quotes].
[26] Reply pages 84,85,86,88,89,92 and 93.
Whilst Mr Adhikary’s argument that these prospective roles were not real jobs might have had some weight, as Mr Ciraolo was then certified as having no current employment, the Beneco report included updates when Mr Ciraolo was certified as being fit for some type of employment under his current certification, eight hours a day, five days per week, together with 5kg lifting and pushing limits. The first update was dated
[27] Reply page 110.
[28] Reply page 124.
14 May 2024[27] and the second, 25 June 2024.[28]
Again considering only the data entry operator role, the enquiries made to prospective employers included discussion as to Mr Ciraolo’s actual suitability for the role. For instance, in discussing the role advertised by MAYDAY Recruitment on Seek, the Beneco report stated:[29]
“Beneco discussed the requirements for the role with the employer. The employer advised that the successful candidate would need to have good computer knowledge. Beneco discussed with the employer Mr Ciraolo’s education, work experience, licensing, and transferable skills. Beneco highlighted Mr Ciraolo holds a Certificate III in Information, Digital Media and Technology completed in 2022. The employer agreed that Mr Ciraolo would be a good candidate for the role and encouraged him to apply.”
[29] Reply page 121.
Beneco made the same remarks regarding another employer’s advertisement, Persokelly.[30]
[30] Reply page 122.
The requirements of s 32A are accordingly satisfied. The authors of the Beneco report had regard to the matters outlined therein, once the appropriate certification had been made.
Mr Ciraolo’s age, education, skills and work experience were accurately conveyed.
In Mani Elizabeth Wood, DP, said at [177]:
“177. The appellant’s argument that the Arbitrator ought to have identified a ‘real job’ does not assist the appellant. The Commission has identified in a number of cases that for the purposes of s 32A of the 1987 Act, ‘suitable employment’ encompasses the identification of an actual position that the injured worker could do, rather than a “light duty” job that the employer created that is not a real job.^[31]Even if the appellant had provided evidence as to the “suitable duties” that were to be made available, the requirement that the respondent be retrained, coached and guided during that working process indicates that the particular position was not a “real job” against which the respondent’s earning capacity should be measured.”
[31] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWWCCPD 55.
Mr Adhikary argued that this dicta applied to the current circumstances and that it was impossible to measure Mr Ciraolo’s capacity against the recommendations of the Beneco report. However, the basis of the submission was that Mr Ciraolo would need to be retrained in order to be able to perform the role of data entry operator. There is a distinction between the necessity for a worker to be trained in order to comprehend the nature of his duties and the necessity for a worker to be “retrained, coached and guided” in the proposed occupation. I accept Mr Hanrahan’s submission in that regard, that any new job requires a measure of training to enable a new employee to perform it. It is a different concept to the requirement that a person be retrained, coached or guided in the circumstances DP Wood was discussing.
In Popal v Myer Holdings Pty Ltd[32] DP Michael Snell considered the authorities regarding the concept of suitable employment as required in s 32A. He said, from [50]:
“50    In Dewar Roche DP referred to the terms of s 32A, and said:
‘Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd[2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.’
51.   The reference to “real jobs” in the above passage needs to be read in light of the issues being argued in Dewar. The employer had supplied light work to the worker that consisted of a job that was made up for the purpose of supplying suitable duties. The employer argued this demonstrated an ability to perform ‘suitable employment’ for the purposes of s 32A, regardless of whether an employer exists who would provide that work. The Deputy President rejected the employer’s argument on this point; work that was “not real employment or work that was potentially available in the labour market at large” was not ‘suitable employment’.
52.   The decision in Mani, to which the appellant refers, raised a similar issue. The employer in submissions at the arbitration hearing in that matter said it could provide suitable duties to the worker. The employer’s counsel said “the duties would involve retraining, guidance and coaching, the particular duties were not identified and were not the subject of medical scrutiny as to their suitability”. Wood DP said:
‘The Commission has identified in a number of cases that for the purposes of s 32A of the 1987 Act, ‘suitable employment’ encompasses the identification of an actual position that the injured worker could do, rather than a ‘light duty’ job that the employer created that is not a real job.’
53.   It will be observed that Dewar and Mani deal with the same point, whether a made up job, not potentially available in the labour market at large, can constitute ‘suitable employment’. That is different to the issue in the current appeal, and those decisions do not assist the appellant.”
[32] [2020] NSWWCCPD 32.
Thus, these decisions do not assist Mr Ciraolo. The potential employment available in the relevant market analyses demonstrate that the roles canvassed are those advertised to the general public on Seek. There is no suggestion that they are “made up” in the sense discussed by both DP Snell and DP Wood.
Accordingly, I am satisfied that Mr Ciraolo is currently suited for work such as a data entry operator. His ability to earn as a 20-year-old I accept is $23.55 per hour, as advised by
[33] ARD page 112.
Ms Harnett.[33] His current pre-injury average weekly earnings was agreed to be $1,080 as at 4 October 2024. He was within the s 37 second entitlement period and his entitlement is accordingly calculated at 80%, $864 per week. Mr Ciraolo’s ability to earn at $23.55 x 40 hours, is $942.20 per week.
I therefore make the orders above.

[2025] NSWPIC 91

18 March 2025