Daher v Klassic Kleen Pty Ltd
[2023] NSWPIC 14
•11 January 2023
| DECISION OF PRESIDENT’S DELEGATE | |
Citation: | Daher v Klassic Kleen Pty Ltd [2023] NSWPIC 14 |
| APPLICANT: | Norman Daher |
| RESPONDENT: | Klassic Kleen Pty Ltd |
| PResident’s Delegate: | Belinda Gamble |
| DATE OF DECISION: | 11 January 2023 |
CATCHWORDS: | Workers Compensation Act 1987; applicant suffered accepted injury to his abdomen lower back, both upper limbs, neck and knees; applicant received 130 weeks of weekly benefits pursuant to sections 36 and 37; applicant was recently diagnosed with cancer rending him unfit for work; whether the applicant has “no current work capacity” and is entitled to weekly benefits under section 38; Held – applicant has not established on the balance of probabilities that he has no current work capacity as a result of a compensable injury; no evidence to support that the applicant is likely to continue indefinitely to have no current work capacity; application dismissed. |
| Orders made: | INTERIM PAYMENT DIRECTION This direction is issued pursuant to the Workplace Injury Management and Workers Compensation Act 1998 The Commission determines: 1. I am not satisfied that the applicant has no current work capacity. 2. The application to set aside the work capacity decision is dismissed. |
BACKGROUND
On 8 November 2018, Norman Daher suffered an injury to his abdomen, lower back, both upper limbs, neck and both knees whist working for Klassic Kleen Pty Ltd, the respondent.
Following his injury, Mr Daher received weekly benefits compensation paid in accordance with ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act).
On 21 July 2022 the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The notice advised
Mr Daher that the respondent has made a work capacity decision under ss 43(1)(a) and (c), of the 1987 Act (the WCD).In the WCD the respondent advised it was of the view that Mr Daher had a current capacity to work in suitable employment as a sales assistant for 20 hours per week. The respondent stated Mr Dahmer could earn $528.40 per week from 2 November 2022 in this suitable employment, and, as a result Mr Dahmer’s entitlement to weekly benefits compensation would be reduced to $1,111.60 per week from 2 November 2022. The WCD was based on a vocational assessment which assessed Mr Daher as being suitable to perform the roles of delivery driver, sales assistant and customer service representative and approval given for Mr Daher to work in those vocational options by his nominated treating doctor
Professor Danform Lim.On 19 September 2022 the respondent wrote to Mr Daher advising that his entitlement to weekly payments had come to an end because he did not meet the special requirements to continue to receive weekly payments after 130 weeks. The respondent’s letter stated that
Mr Daher was no longer eligible for weekly payments from 2 November 2022.On 29 September 2022 Mr Daher’s general practitioner, Dr Liu, certified Mr Daher as having no capacity for work. On 30 September 2022 Mr Daher submitted a “recurrence of injury” form in which Mr Daher stated the pain in his back, abdomen and groin area had never gone away.
On 31 October 2022 Mr Daher lodged an Application for Expedited Assessment (the Application) seeking that the WCD be set aside. Mr Daher sought an order that he be paid weekly benefits compensation pursuant to s 38 of the 1987 Act from 3 November 2022 to date and continuing.
PROCEDURE BEFORE THE COMMISSION
The parties attended a telephone conference before me, as a delegate of the President, on 28 November 2022.
Mr Stephen Hickey of counsel appeared for Mr Daher. The respondent was represented by Ms Ella Flanagan from Rankin Ellison Lawyers.
The parties were unable to reach an agreed resolution of the dispute.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them.
ISSUE FOR DETERMINATION
The issue for determination is whether Mr Daher has “no current work capacity” and is therefore entitled to weekly benefits compensation paid under s 38 of the 1987 Act.
There is no dispute between the parties that:
(a) Mr Daher is not able to return to his pre-injury employment;
(b) that Mr Daher’s pre-injury average weekly earnings (PIAWE) is $2,120, and
(c) that Mr Daher has no entitlement to weekly benefits compensation pursuant to
ss 36 and 37 of the 1987 Act, those entitlement periods having ceased on
2 November 2022.
DOCUMENTS
The following documents were in evidence before the Commission and have been taken into account by me in making this determination:
(a) Application, and attachments;
(b) Reply, and attachments (Reply), and
(c) Application to Admit Late Documents lodged on 17 November 2022, and attachments.
EVIDENCE
On 30 May 2022, Dr Lim confirmed that he agreed the work options set out in the vocational assessment report were suitable for Mr Daher’s functional tolerances, and that they were realistic and achievable for him (Reply, page 15 - 16).
There were a number of Certificates of Capacity from Professor Danfom Lim in evidence. Generally, the certificates show increasing capacity for work over time and from around
May 2022 to 26 September 2022 for up to 20 hours per week with restrictions (Application, page 70 – 84; Reply, page 110 - 128).On 29 September 2022 Mr Daher saw a different general practitioner at the same medical centre, Dr Cherri Qizhang Liu. There is no evidence as to when Mr Daher first saw Dr Liu. All other Certificates of Capacity were issued by Professor Lim. Dr Liu certified Mr Daher as having no capacity for work. Dr Liu’s certificate relevantly stated:
“Patient has been officially diagnosed with metastatic prostate cancer on 15th September 2022 with bony metastatis.
As such patient deemed unfit for work of next three months as per urologist to receive definitive treatment, pending radiation oncologist treatment plans moving forward.
As such as will not have any capacity to undertake employment/seek new employment.”
Dr Liu recorded that Mr Daher would need a minimum of three months pending a definite treatment plan by an oncologist (Application, page 66; Reply page 128). It is abundantly clear from the certificate that Dr Liu certified Mr Daher as having no capacity for work based on his cancer diagnosis and not any limitations associated with his workplace injury or recurrence of same.
Mr Daher provided a statement dated 25 October 2022. In his statement Mr Daher set out his employment history and the details of his injury on 8 November 2018 and subsequent restrictions. Mr Daher relevantly stated:
“I tried to get back to work but found it very painful, and I only lasted about a short time at the plantation shutters due to Covid and was not able to see it I could do it. I found I had problems with pain and weakness in both arms, legs and stiffness and restrictions of movement in my low back, both knees, shoulders, and neck as well. I only worked 16 hours before being told to leave due to covid restrictions at the time…
I note that the insurer states that I can do work as either a customer service representative or courier driver, sales assistant.
I find that this could not be something I can do mostly due to the pain and restriction of movement in my low back, both knees, hernia, neck, left shoulder and right shoulder.
Even driving myself, I find that after 30 minutes I become very painful. I am not sure how I would go as a courier driver as I would be required to be behind the wheel or a car for at least 5 – 8 hours a day. I cannot stand for more than 15 minutes and I have lost confidence and am sad constantly.
I would find it very difficult to do any job which required me to sit at a computer in a fixed position for more than 30 minutes at a time without getting up. I have no formal or even informal training in typing and only use my phone to do so” (Application, page 8 – 9).
On 1 November 2022 Mr Daher saw Dr Peter Conrad for the purposes of assessing his whole person impairment.
In a report dated 2 November 2023, which was admitted as a late document, Dr Conrad noted that Mr Daher continued to have ongoing symptoms as a result of his injury on
8 November 2018. Dr Conrad noted that Mr Daher had been diagnosed with prostate cancer and was waiting to start chemotherapy and possibly radiation therapy (ALD, page 2).Dr Conrad opined that in view of Mr Daher’s ongoing symptoms, his age of 64 and lack of training and education, he did not believe Mr Daher was employable and should be granted a pension (ALD, page 3). Dr Conrad assessed Mr Daher as suffering from 19% whole person impairment (ALD, page 5).
REASONS
Is Mr Daher entitled to weekly benefits compensation paid under s 38 of the 1987 Act?
Part 3 Subdivision 2 of the 1987 Act sets out an injured workers entitlement to weekly benefits compensation.
Section 36 of the 1987 Act sets out the compensation that may be payable for an injury during the first 13 weeks.
Section 37 of the 1987 Act sets out the compensation that may be payable for an injury during weeks 14 to 130.
There is no dispute between the parties that Mr Daher has been paid his full entitlement to weekly benefits compensation under ss 36 and 37 of the 1987 Act.
Section 38 of the 1987 Act provides:
“(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if:
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note—
An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after 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.
(8) A worker’s entitlement to compensation under this section may be reassessed at any time.”
Clause 9 of Schedule 3 of the 1987 Act sets out the meaning of “current work capacity” and “no current work capacity” 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.”
The term “suitable employment” is defined in s 32A of the 1987 Act as follows:
“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 order for Mr Daher to succeed he must establish that he has an entitlement to weekly benefits compensation.
Mr Daher must establish that he has an entitlement pursuant to s 38(2) of the 1987 Act. There is no dispute that Mr Daher does not meet any of the preconditions for continuation of weekly benefits compensation under s 38(3) of the 1987 Act.
Mr Daher has the onus of proof. The standard of proof is the balance of probabilities.
The Court of Appeal has confirmed that the Commission has jurisdiction to award weekly compensation after the third entitlement period (see Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 (17 June 2020) at [13] and [73]).
It is open to me to find that Mr Daher has “no current work capacity” and that this incapacity is likely to continue indefinitely. If this finding is made, an entitlement to weekly benefits compensation in the s 38 period would follow.
As noted above, there is no dispute that Mr Daher cannot return to work in his pre-injury employment.
Mr Daher submitted that the nature of his work injury and consequential symptoms demonstrated an incapacity for work. It was submitted that having regard to the totality of the medical evidence there was no “real” job that Mr Daher could perform. Mr Daher also submitted that he had an entitlement to compensation under s 48 of the 1987 Act as he now has no capacity to work due to his cancer diagnosis and necessary treatment for same.
I am not satisfied on the balance of probabilities that Mr Daher is not able to work in the suitable employment.
I am not persuaded by the opinion of Dr Conrad that Mr Daher was unemployable.
Dr Conrad was instructed to provide an assessment of whole person impairment and I am not persuaded he has properly considered the issue of whether Mr Daher has no current work capacity, as that term is defined in the 1987 Act. Dr Conrad’s opinion also seems to take into account whether the work or employment is available to Mr Daher, which is not consistent with s 32 of the 1987 Act. Dr Conrad’s opinion is at odds with the vocational assessment report and Professor Lim’s opinion regarding the suitability of the identified role.Professor Lim treated Mr Daher since December 2018. Professor Lim is the best placed medical practitioner to provide an opinion on Mr Daher’s capacity for suitable employment. Professor Lim certified Mr Daher as having capacity to undertake suitable employment of 20 hours for at least four months prior to the issue of the WCD. There is not a report in evidence from Professor Lim addressing the issue at stake in these proceedings. There is no evidence from Mr Daher for the reasons he changed treating doctors in September 2022 and following the issue of the WCD.
Dr Liu’s certification of no current work capacity does not support an entitlement to weekly benefits compensation. The reason for the downgrade in hours by Dr Liu is clearly not related to the ongoing symptoms from the workplace injury but to Mr Daher’s recent unfortunate cancer diagnosis.
An entitlement to weekly benefits compensation arises as a result of a compensable workplace injury, as defined in s 4 of the 1987 Act. The 1987 Act does not provide an entitlement to workers compensation for non-compensable injuries or ailments. This is abundantly clear from the text of Division 2 of the 1987 Act. Therefore, the fact that
Mr Daher’s recent diagnosis gives rise to an incapacity for employment is not relevant to the issue of whether he has an entitlement to weekly benefits compensation pursuant to s 38 of the 1987 Act.There is also no evidence to support that Mr Daher is likely to continue indefinitely to have no current work capacity.
Mr Daher’s submission that he has an entitlement to weekly benefits compensation under
s 48 of the 1987 Act is misguided. Section 48 provides:“(1) Compensation is payable under this Division in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity for work of the worker.”
The reference to injury above is clearly a reference to a compensable workplace injury. For
s 48 to apply Mr Daher must establish that there is an entitlement to weekly benefits compensation in the first place. For the reasons set out above I am not satisfied there is any entitlement to compensation under s 38. Accordingly, there can be no entitlement to compensation under s 48.For the reasons set out above, I am not satisfied on the balance of probabilities that
Mr Daher has no current work capacity. In the circumstances, Mr Daher’s application is dismissed.
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