Cornish v Herb Blanchard Haulage Pty Ltd & Ors

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cornish v Herb Blanchard Haulage Pty Ltd & Ors [2024] NSWPIC 117
APPLICANT:	Darren James Cornish
FIRST RESPONDENT:	Herb Blanchard Haulage Pty Ltd
SECOND RESPONDENT:	Bretlife Pty Ltd as trustee for the Tait Family Trust trading as MI Organics
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	12 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; work capacity decision of the insurer to reduce the applicant’s entitlement to weekly compensation payments on the basis of their assessment of his capacity to work in suitable employment; applicant has an agreed lumbar injury and consequential psychological symptoms; applicant contends he has “no current work capacity” as defined in schedule 3, clause 9; Wollongong Nursing Home v Dewar applied; Held – applicant has no current work capacity from 10 October 2023; respondents are to pay the applicant weekly compensation pursuant to section 37.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has no current work capacity from 10 October 2023. 2. The respondents are to pay the applicant weekly compensation as follows: (a) pursuant to s 37 of the Workers Compensation Act 1987: (i) from 10 October 2023 to date and continuing at the rate of $1,520 per week.

STATEMENT OF REASONS

BACKGROUND

Darren Cornish, the applicant, was employed with the first respondent, Herb Blanchard Haulage Pty Ltd and the second respondent, Bretlife Pty Ltd as trustee for the Tait Family Trust trading as MI Organics. Both respondents are insured with Employers Mutual Limited (EML) and they have a lead scheme agent agreement between them and have engaged one set of legal representatives to appear for them both.
In the Application to Resolve a Dispute (ARD) Mr Cornish relies on the following dates of injury:
(a)    on 6 February 2018 when he was rolling up a tarpaulin in the course of his employment with the first respondent injuring his lower back. He also pleads that he has developed consequential anxiety, depression and an adjustment disorder. In the alternative, he pleads the same date of injury as a deemed date due to aggravation, acceleration, exacerbation or deterioration of disease;
(b)    on 14 November 2018 while working for the first respondent he was getting out of his work truck onto uneven ground and injured his left ankle and also aggravated his lower back injury. He pleads as a result he developed consequential anxiety, depression and an adjustment disorder, and
(c)    on 24 March 2022 when working for the second respondent as a result of driving trucks for long periods of time from March 2019 to 24 March 2022 he re-injured his lower back. In the alternative, he pleads he aggravated, exacerbated, accelerated or deteriorated the degenerative disease in his lower back. He also pleads that he has further aggravated his consequential anxiety, depression and adjustment disorder.
Injury is not disputed.
The claim for compensation in these proceedings is confined to weekly compensation from 10 October 2023 pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act).
The applicable pre-injury average weekly earnings (PIAWE) rate is agreed at $1,900.
The dispute relates to Mr Cornish’s capacity for suitable employment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for conciliation conference/arbitration hearing before me on
1 December 2023. Mr Ty Hickey, counsel, instructed by Mr William Langler, solicitor, appeared for Mr Cornish, who was present. Mr Daniel Stiles, counsel, instructed by Ms Emily Gorry, solicitor, and Annie from the insurer appeared for the respondent.
8.

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;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the applicant dated 22 November 2023.

Oral evidence

There was no oral evidence. Both counsel made oral submissions which were sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Relevant legislative provisions

The relevant legislative provisions in relation to a determination of a worker’s capacity for employment are set out below.
Section 33 of the 1987 Act:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
Section 37 provides:
“(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”
The term “suitable employment” is defined in s 32A to mean:
“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.”
In schedule 3 cl 9 of the 1987 Act contains relevant definitions which previously appeared in s 32A, as follows:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”

Relevant legal principles

Deputy President Roche noted in Wollongong Nursing Home Pty Ltd v Dewar[1] (at [59]):
“In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.”
[1] [2014] NSWWCCPD 55, Dewar.
In Broadspectrum Australia Pty Ltd v Skiadas[2] Keating P cited this passage from Dewar when considering an Arbitrator’s finding that the worker had no current work capacity and that work such as clerical or administrative work was not work for which that worker was currently suited because she did not have the education or skills necessary to equip her to undertake such work.
[2] [2016] NSWWCCPD 34, Skiadas.

Insurer’s work capacity decision

On 29 June 2023 the insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act ) advising Mr Cornish a decision had been made to reduce his weekly compensation payments to take effect on 10 October 2023.[3] The insurer advised that they has made a decision under s 43(1)(a) of the 1987 Act that he had a capacity to work in suitable employment for five hours per day, five days per week based upon a certificate of capacity issued by Dr Yadav dated 25 May 2022.
[3] ARD p 33 and Reply p 1.
The insurer advised that they considered work as a delivery driver (van or car), garden labourer and forklift driver were suitable employments for him based upon the Labour Market Analysis undertaken by Pinnacle Rehab in June 2023 and vocational assessment of 1 July 2022 and noting Dr Yadav had endorsed these roles as suitable on 29 August 2022. The insurer used the role as a delivery driver as the most suitable and they concluded Mr Cornish could earn $32.50 per hour, being $820 for a 25 hour week and so they gave notice his weekly compensation would be reduced to $636 per week.
The respondent’s counsel at the outset of his submissions advised that he would not contend that work as a forklift driver or garden labourer were suitable employment because the insurer had chosen the delivery driver role as the suitable employment for Mr Cornish.
On 21 September 2023 the insurer completed a review of their earlier decision but did not change it.[4] The basis for this decision by the insurer was that Mr Cornish’s solicitor had served a report from Dr Shahzad dated 29 August 2023 which they stated was after their decision, and therefore, the insurer said they did not consider the report forms part of their review, but they said they would refer it to the insurer’s claims team. This seems an extraordinarily unhelpful response and the insurer’s claims team does not appear to have reviewed this evidence.
[4] ARD p 40 and Reply p 7.
On 17 October 2023 the insurer wrote to Mr Cornish to advise him that his PIAWE figure had been indexed and was increased to $1,900.[5]
[5] AALD p 2.

Determination

It is convenient to consider the evidence and submissions in relation to the matters set out in s 32A.

Medical information

The first is the nature of the worker’s incapacity and the details in the medical information, including in the medical certificates. Mr Hickey made submissions outlining Mr Cornish’s medical treatment to illustrate the nature of his injury.
In the report of Professor Stoodley, the treating neurosurgeon, dated 9 November 2018[6] he refers to Mr Cornish having a low back injury which had involved sciatica in the L5 or S1 distribution. At that time he was able to go back to work but the back was problematic at the end of a day’s driving. The doctor thought at that time he was symptomatic mainly from the annular tear at L5/S1. He later referred Mr Cornish for pain management. Mr Hickey also referred to the report from the neurologist, Dr Bonev dated 1 July 2019 in which he found findings consistent with chronic neurogenic denervation in the bilateral L5 and S1 myotomes.[7]
[6] ARD p 46.
[7] ARD p 48.
Mr Hickey submitted this evidence showed that Mr Cornish had objective signs of the injury and pathological changes in the lumbar spine. He also drew attention to the report from Dr McEntee dated 2 July 2019[8] who referred to an MRI scan showing that Mr Cornish’s L5/S1 disc was quite collapsed with a broad based disc bulge. There was some discussion of surgical intervention but at that stage he was to manage condition as he was. At that time he was driving only for 45 minutes at a time and was avoiding heavy lifting.
[8] ARD p 59.
Dr Walker also provided a report dated 4 September 2019. He noted sitting aggravated Mr Cornish’s pain and he could no longer do longer haul trips. Physiotherapy and hydrotherapy had not helped him. Surgery was discussed, but given his age the doctor recommended conservative treatment and pain management.
Mr Hickey also referred to the mental health care plan and referral to psychologist made by Mr Cornish’s general practitioner and to the physiotherapist recording his difficulty with sleeping due to back aches through the night.
Mr Hickey referred to some of the entries in the clinical notes of Dr Yadav which show the position with Mr Cornish’s back, such as on 25 October 2022 when his back pain was worse after driving a front end loader with mulch causing him to take the Thursday and Friday off work. He found it hard to sleep at night due to the pain and had pins and needles in both legs. The doctor advised him to find other work that did not involve long distance driving or activity that strained him. He was advised to start anti-depressants and see a psychologist.[9]
[9] ARD p 202.
On 22 November 2022 Dr Yadav recorded that Mr Cornish had resigned his job as he was sick and tired of getting jobs that he was not supposed to do and reinjuring himself. His back movements were noted to be improving but the doctor also recorded that the range of motion in his lumbar spine remained very restrictive. Dr Yadav says that he reduced Mr Cornish’s lifting and pushing/pulling capacity on his certificates because his pain has been exacerbated and the range of motion was now very restricted.[10]
[10] ARD p 201.
On 30 January 2023 Dr Yadav recorded that he had increased Mr Cornish’s work capacity on his certificate so he has better prospects of finding a job but he was continuing to take Naprosyn, he is irritable, not sleeping at night, was unable to concentrate and experienced other symptoms.[11]
[11] ARD pp 199-200.
On 17 February 2023 Dr Yadav recorded that he remained unfit to work until his depression stabilises. He was sleeping better with medication. On 24 February 2023 Dr Yadav records he has now been taking Mirtazapine for four weeks and his sleep is still up and down and he is agitated in the mornings. His back pain was improving and so was his range of motion. The doctor notes he will consider a review with a psychiatrist if he does not respond to the medication, which he increased to 30mg at night and added Temaze 10mg at night when needed.[12] On 30 March 2023 it is recorded that Mr Cornish’s back pain is worse with activity but he was trying to do as much as possible at home. His sleep was still not good. The doctor certified he was fit to work in suitable duties as a trial.[13]
[12] ARD p 199.
[13] ARD p 198.
On 3 April 2023 Dr Yadav participated in a case conference with Pinnacle Rehab and writes that he renewed Mr Cornish’s certificate and his capacity was upgraded to three hours, five days per week and they agreed to organise some counselling. The doctor notes Mr Cornish was able to sleep five to six hours with Temaze.[14] On 27 April 2023 Dr Yadav recorded that his low back pain increased due to some cold weather and even a couple hours of lawn mowing worsened his back pain and he starts to limp.[15]
[14] ARD p 198.
[15] ARD p 197.
On 25 May 2023 Mr Cornish was having constant pain in his right low back and hip and Dr Yadav records work as a traffic controller had been identified as work for Mr Cornish. He was waiting to see a psychologist.[16] On 22 June 2023 Dr Yadav records that he has increased Mr Cornish’s working hours on his certificate so there is more flexibility for him to find a job. He had not been able to find suitable employment.[17]
[16] ARD p 197.
[17] ARD p 196.
On 20 July 2023 Dr Yadav recorded that Mr Cornish had an exacerbation of low back pain associated with right sided sciatica. He says after three days of training as a traffic controller his pain has worsened and he finds it hard to concentrate. He had to leave the course due to worsening pain. Dr Yadav noted he now had an antalgic gait. He has a burning sensation on his right buttock, leg and has pins and needles in the right foot. His low back was significantly painful.[18] On 3 August 2023 Dr Yadav noted Mr Cornish’s back pain and range of motion was improving but forward flexion was limited to 30° and lateral flexion to 15°. His radicular symptoms were improving but still present and some movements made his symptoms worse. The doctor noted he was to avoid any strenuous activity.[19]
[18] ARD p 195.
[19] ARD p 195.
Dr Shahzad, occupational physician, provided a medico-legal report for Mr Cornish’s solicitors dated 29 August 2023.[20] He recorded that Mr Cornish had low back pain radiating down the right leg and burning pain down to his right knee and big toe. He has difficulty with prolonged sitting, standing and walking. Dr Shahzad provided his opinion that Mr Cornish was currently unfit to return to work due to strong features of right L5/S1 radiculopathy, inability to sit, stand and walk for prolonged periods. He recommended further treatment with a spinal surgeon with consideration given to a series of nerve root injections or foraminal injections and if this was unsuccessful consideration could be given to a L5/S1 discectomy or spinal fusion. He also recommended a raft of conservative treatment.
[20] ARD p 63.
In relation to the employment proposed by the insurer, Dr Shahzad was of the opinion that Mr Cornish was unfit to perform any of those jobs recommended in the vocational assessment report due to his inability to engage in prolonged sitting, standing and walking. He added that based upon his limited skills, expertise and occupations it is unlikely that he will be able to return to work.
On 9 November 2023 Dr Yadav issued a Certificate of Capacity finding he has capacity for some type of employment for four hours per day, three days per week as a trial with restrictions for the period 9 November to 7 December 2023. The restrictions are lifting/carrying no more than 5kg, sitting and standing no more than 20 minutes at one time with stretching as needed, push/pulling no more than 7kg, avoid bending, squatting and twisting and driving for 20minutes with stretching as needed. The doctor stated Mr Cornish is unable to return to driving B double trucks in the future.[21]
[21] AALD p 9.
Mr Hickey submitted that the restrictions in the certificate dated 17 August 2023 are the same as this November certificate. However, he submits with both you need to compare the restrictions on the certificates with the recommendations in the functional assessment. He says there is a significant change in the August 2023 restrictions and the functional assessment is not current as it does not reflect these matters.
Mr Hickey submitted that the medical evidence shows that Mr Cornish is stoic, has a good work ethic and has engaged with the rehabilitation provider. Notwithstanding this, he submitted that Mr Cornish has increasing difficulty in coping with his symptoms which have prevented him from engaging in employment in any meaningful way.
Mr Stiles submits that the starting point is to look at medical certificates issued by Dr Yadav such as that of 9 November 2023, and the certificate dated 31 August 2023.[22] In both certificates Mr Stiles submits Mr Cornish was certified to work four hours per week three days per week in the period for which this weekly compensation claim covers. Mr Stiles submits that the certificates do confirm Mr Cornish cannot return to work as a B double truck driver and he says that the respondent has not suggested otherwise. He states that the suitable employment option identified in the s 78 notice was the delivery driver identified in the vocational assessment.
[22] ARD p 570.

He conceded that the garden labourer and forklift roles were not put forward by insurer in its work capacity decision. He said he would not make submissions about these roles. Mr Hickey had submitted that these roles were not suitable employment but in view of Mr Stiles approach I have not summarised that aspect of Mr Hickey’s submissions.
Both counsel made submissions about the reports from Pinnacle Rehab which I refer to below.

Worker’s age, education, skills and work experience

The second matter in s 32A is to consider the worker’s age, education, skills and work experience. Mr Cornish is aged 49. In his statement dated he sets out his post school qualifications which include a farm mechanics course, NSWMC Class driver’s licence/truck driving licence (B Doubles), a Safe Works ticket for forklift and train, forklift licence, CV-vehicle loading trains and Class III certificate in transport. At [61] of his statement he records that he left school at age 16.
At [66] Mr Cornish states that even though he has a forklift licence this type of work involves a lot of sitting for extended periods, as well as lots of twisting and bending to reverse and check your surroundings. He does not feel he is suited to that work now. He makes similar comments about delivery driving and work as a garden labourer.
He also lists his work experience work from 1990 to 2022 which most have involved driving trucks. He commenced work with the first respondent in 2017 as a truck driver and sets out at [7] of his statement the duties involved. At [8] he describes the work as very physical with a lot of bending, twisting, pushing, pulling and lifting loads up to 80kg which he said involved a lot of use of his back.
In March 2019 he commenced work for the second respondent driving B doubles and tip trucks/floats, loading and unloading and securing loads with chains. He said the work included prolonged sitting, bending lifting and handling loads.
In July 2023 Mr Cornish describes attending a road traffic controller training course. He says this involved standing from 9.00am to 2.30pm and that caused him so much back pain that he found it hard to concentrate and caused him lower back pain, and he was walking with a limp. So he had to stop the course after the third day.

Return to work plans and occupational rehabilitation

The third matter is to consider any return to work and injury management plans and the fourth matter listed in s 32A is occupational rehabilitation services that are being, or have been, provided to or for the worker. It is convenient to consider these together as the Pinnacle Rehab reports span both matters.
In the Pinnacle Rehab vocational assessment report dated 1 July 2022 it is stated that the assessment was done via telephone conference. It identified the three roles set out earlier in these reasons. Mr Stiles says the vocational assessment sets out various transferable skills, which he acknowledges are broad.
The physical requirements of a delivery driver set out in the report says there is light physical demand levels, however I find there are a number of aspects that are not suitable for Mr Cornish with an injured low back. These include climbing to enter and exit the vehicle, sitting in a vehicle frequently, bending frequently to facilitate loading and unloading, frequently required to lift and carry, twisting body to reverse vehicle and for some loading and unloading activities, may squat occasionally when loading or unloading vehicles.
However, this vocational assessment was undertaken in 2022 and appears to be overtaken by the subsequent recommendation that Mr Cornish qualify as a traffic control officer.
On 9 February 2023 Dr Yadav completed the Pinnacle Rehab “Vocational Options-Medical Review/Approval” document.[23] This document proposed work as a truck driver. In my view this simply is not suitable employment for Mr Cornish. The document lists the physical demands of the role as including “occasionally the role involves a heavy physical demand (depending on the requirement for strapping down and loading)”. Also listed is, climbs up steps to enter and exit vehicle cab. Even though the doctor ticked yes to the question was it a suitable vocational option, Dr Yadav wrote “currently Darren is unfit to perform any work due to worsening of his mental health. He will continue to have same physical restrictions with longer trips and any unstable loads.”
[23] ARD p 439.
Subsequently, on 15 May 2023 Dr Yadav ticked yes that traffic controller was a suitable vocational option[24].
[24] ARD p 452.
On 20 June 2023 Pinnacle Rehab issued the Labour Market Analysis with a date of assessment of 2 June 2023.[25] It is stated that this analysis was undertaken because Mr Cornish had a downgrade in his capacity from the time of the previous Labour Market Analysis. The certificate used as the basis of the report was that of Dr Yadav for the period 25 May 2023 to 22 June 2023. It was for five hours per day for five days per week. However, in August 2023 Dr Yadav reduced the certification to four hours per day three days per week. So I find caution needs to be exercised relying on this report. Another matter of concern is the fact that Pinnacle Rehab used their vocational assessment, which was conducted on 2 June 2022, so a year earlier. This assessment found the delivery driver (van or car), garden labourer and forklift driver to be suitable employment. This report does not seem to take into account that Pinnacle Rehab had asked Dr Yadav a month earlier to consider if traffic control work was suitable employment.
[25] ARD p 161.
Mr Stiles submitted that Pinnacle Rehab had contacted real employers who had indicated they had real jobs available for which Mr Cornish would be suited. He referred to the contact with Reece, Red Rooster and Duraplas Industries. However, the Reece job was for 39 hours per week, although they advised they had previously hired employees for 25 hours per week. They were not asked if 12 hours per week would be acceptable. Similarly, the other two employers were not asked about 12 hours per week.
Of more concern, is the fact that the employers were only asked about the restrictions in Dr Yadav’s certificate of 25 May 2023 which, as Mr Hickey submitted, had significantly different restrictions to the August and November 2023 certificates. For instance, the lifting restriction was “<15kg” whereas it is most recently “no more than 5kg”. The sitting, standing and driving tolerance was “< than 2 hours” whereas most recently it is “no more than 20 minutes at time”. The push/pulling was “<20kg, non-repetitive” whereas more recently it is “no more than 7kg”. I find these are significantly different restrictions and so the physical restrictions that the Labour Market analysis report has been based upon does not reflect the evidence for the period of Mr Cornish’s claim, which is from 10 October 2023 to date and continuing.
For the above reasons, I do not accept the submissions of the respondent based upon this Labour Market Assessment. Furthermore, the Pinnacle Rehab Labour Market Analysis was issued on 20 June 2023, therefore it pre-dates the traffic controller job proposed by Pinnacle Rehab. Mr Hickey submitted that the Commission cannot place weight on the vocational assessment performed a year ago particularly when Dr Yadav notified Pinnacle Rehab of Mr Cornish’s difficulty with the traffic control course but there are no further reports from Pinnacle Rehab before the Commission post-dating this course.
Mr Hickey submits that the Commission does not know what Pinnacle Rehab would have recommended after Mr Cornish could not complete this course. I accept this submission.
In addition, Pinnacle Rehab have completed return to work plans. Mr Hickey submitted that the plan dated 26 June 2023 identified a number of jobs which he argues are entirely at odds with the nature of Mr Cornish’s injuries and the difficulties he was having at that time.[26] He submitted that the plan refers to the certification by Dr Yadav, but he submits this needs to be looked at in context that it was only in April 2023 that Mr Cornish had been upgraded on a trial basis. Mr Hickey referred to the job seeking activities part of the plan which were for Mr Cornish “to complete his Traffic Controller, Traffic Plan and Implementation and White Card training”.
[26] ARD p 187.
This plan refers to identified suitable employment as a delivery driver (van or car), garden labourer, and forklift driver and it is stated that Dr Owain Morgan approved these vocational options on 25 August 2022 but also that Dr Yadav approved the vocational option of traffic controller. The date is not filled in when Dr Yadav approved the traffic control option. At [54] of these reasons I have noted this was on 15 May 2023, so well after these other options had been proposed.
This return to work plan in my view is flawed. It sets out the stage 5 proposed part of the plan and states it is anticipated Mr Cornish will have obtained employment. However, Pinnacle Rehab did not find an actual job for Mr Cornish or a work trial. The medical evidence summarised above sets out the reasons why Mr Cornish could not complete the traffic management course, due to increasing back problems. This plan is flawed because it is stated “it is anticipated that at the completion of this stage of the return to work plan NTD Dr Yadav will certify Mr Cornish with capacity for pre-injury duties.” This is plainly a wrong goal. Dr Yadav has made it clear that Mr Cornish cannot return to work in his pre-injury duties.
Mr Hickey asks, why did Pinnacle Rehab recommend he do traffic control training when they had identified the three roles previously as suitable employment. He submits this must have been because they must have learned that the three jobs were unsuitable for Mr Cornish. He submitted Dr Shahzad found these roles unsuitable for Mr Cornish.
Mr Hickey submitted that all three jobs identified in the vocational assessment are not suitable employment for Mr Cornish. He added that the s 32A factors show Mr Cornish is a relatively uneducated man who has only driven trucks throughout his employment history and he has significant back injury with radicular symptoms. So suitable employment in this case is going to be difficult. Pinnacle rehab only identified driving roles and labouring roles which Mr Hickey says reflected his employment history. He argues that Mr Cornish was clearly attempting to find some sort of work and this is why Dr Yadav certified him as having more capacity.
In summary Mr Hickey submitted that having regard to s 32A, Mr Cornish has no current work capacity because the evidence is overwhelming to support his conclusion.
Mr Stiles relies on the fact that Dr Yadav did tick yes to the suitability of truck driving and traffic controller roles. He also submits that Scott Hansen, the mental health nurse, recorded on 14 June 2023 that Mr Cornish had been keeping himself occupied and had applied for a job driving a bus.[27] He says it is clear from this reference that Mr Cornish himself was looking for driving type roles. However, this note was made in June 2023 and as has been noted Dr Yadav reduced Mr Cornish’s physical restrictions significantly in the certificates in August and November 2023. I find it is fanciful to suggest Mr Cornish could work as a bus driver with a sitting restriction of no more than 20 minutes at a time.
[27] ARD p 247.
Mr Stiles submits that reliance should not be placed on the opinion of Dr Shahzad because the doctor states that he cannot come to a concluded diagnosis because it was a telehealth assessment, and that he only suspected features of radiculopathy. The doctor’s view is that Mr Cornish is totally unfit and Mr Stiles argues that because Dr Shahzad did not physically examine Mr Cornish and only spoke to him once, you would prefer opinion of the general practitioner, Dr Yadav, who has treated him for many years and he has certified fitness for 12 hours per week.
The respondent submits that the suitable employment options in July 2022 are still suitable, Dr Yadav in August 2022 certified they suitable and there is no evidence he has changed his view. Mr Stiles submitted the Commission, if accepting Dr Yadav’s certification, would not find that Mr Cornish is unfit for employment. He submitted that 80% of the agreed PIAWE figure of $1,900 is $1,520. He further submits if the Commission accepts a delivery driver role is suitable employment there are three hourly rates identified in Labour Market Analysis report. He states that the s 78 notice relies on $32.80 per hour, but there would be no difficulty in averaging the three figures to $27.43 per hour x 12 hours equalling a capacity of $329.16 per week. When deducted from 80% of PIAWE equals an award of $1,190.84 per week. This is significantly more than the insurer’s position in the work capacity decision.
Mr Hickey submitted in reply that Dr Shahzad, notwithstanding his consultation was by telehealth, formed a view that is consistent with the other medical opinions about the diagnosis. He argues that, therefore, Dr Shahzad’s opinion is not less compelling because it was conducted by telehealth. Mr Hickey submitted that a key submission by the respondent was incorrect. He says it is not correct to assert that Dr Yadav has not changed his opinion from when he ticked that a delivery driver role was suitable employment. Mr Hickey submits Dr Yadav has issued many certificates since August 2022 changing the restrictions and the insurer has not asked the doctor for his opinion as to whether Mr Cornish could still do the work of a delivery driver, particularly in light of the more stringent restrictions he has placed on Mr Cornish’s physical abilities. Mr Hickey maintains that a proper assessment of Mr Cornish’s capacity to perform suitable employment is that he has no current capacity.
I have made various findings above about the evidence, in particular the shortcomings in various of the Pinnacle Rehab reports. Undoubtedly, the situation with assessing Mr Cornish’s employment capacity is dynamic and changes. This requires the rehabilitation provider to be nimble with changing circumstances. For instance, with the outcome of the traffic controller course flaring up his symptoms to the point he was walking with a limp, they needed to re-assess Mr Cornish. It is unfortunate some work trials could not have been arranged in some prospective employment roles to enable judgement to be made as to Mr Cornish’s capacity in real work life settings.
The respondent’s counsel urges me to preference Dr Yadav’s certificates of capacity over the opinion of Dr Shahzad. They argue that Dr Yadav is in the best position to advise because he has treated Mr Cornish over a long period of time. These facts are true, but it needs to be borne in mind that in Dr Yadav’s clinical notes he expresses the rationale for his certifications. For instance in the certificate dated 30 March 2023 he writes that Mr Cornish is fit to work in suitable employment as a trial. In the entry on 22 June 2023 Dr Yadav wrote he was increasing the certification to give flexibility to help him find a job. These comments lead me to find that the doctor in his certificates was conditionally giving a certification and clearly it would be capable of change if Mr Cornish suffered further symptoms in the work trial or if he found he could not perform a particular job. It was precisely this situation, when in July 2023 Mr Cornish had an exacerbation of back pain when doing the traffic controller course, the doctor records his pain was worse, it was hard to concentrate, he had an antalgic gait and his back was significantly more painful.
Dr Shahzad is a consultant occupational physician and I accept Mr Hickey’s submission that, while he did not physically examine Mr Cornish, his diagnosis is consistent with the medical evidence before the Commission. He gives his opinion about Mr Cornish’s work capacity drawing on his expertise as an occupational physician. He believes that Mr Cornish is currently unfit for any form of work because he is unable to engage in prolonged sitting, standing and walking. He finds that Mr Cornish is at high risk of exacerbating his low back injury. He suggests a raft of conservative treatment to help Mr Cornish, including nerve root injections to alleviate the radiculopathy.
I find this opinion to be powerful when viewed in the context of Mr Cornish’s flare up when he undertook the traffic controllers course. I find with a no more than 20 minute restriction on sitting, standing and driving the reality is like in Dewar, that there is no evidence of a real job in employment for which he is suited. Mr Cornish does not have the education or skills or work experience to undertake many non-physical roles. His only work experience is driving trucks. Mr Cornish is quite young, hopefully with further treatment as suggested by Dr Shahzad his back may settle to a level where he could entertain some type of lighter work but I am not persuaded on the available evidence that from 10 October 2023 to date he has reached that point. I therefore accept the submissions made by his counsel and find he has no current work capacity from 10 October 2023 to date and continuing and an award is made in his favour at 80% of his PIAWE being $1,520 per week.

[2024] NSWPIC 117

12 March 2024