Davis v Sonic Healthcare Group

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Davis v Sonic Healthcare Group [2024] NSWPIC 688
APPLICANT:	Gabrielle Davis
RESPONDENT:	Sonic Healthcare Group
MEMBER:	John Isaksen
DATE OF DECISION:	11 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and medical expenses for injury to the right knee and consequential condition affecting the left hip; consideration of Wollongong Nursing Home P/L v Dewar and Gradan Bathrooms P/L v Workers Compensation Nominal Insurer; Held – worker has had various periods of partial and total incapacity as a result of the injury to the right knee and consequential condition affecting the left hip; award of weekly payments of compensation made accordingly.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant had no current work capacity from 12 December 2022 to 19 February 2023. 2. The applicant was partially incapacitated for work from 20 February 2023 to 28 May 2023. 3. The applicant had no current work capacity from 29 May 2023 to 9 July 2023. 4. The applicant was partially incapacitated for work from 10 July 2023 to 1 August 2023. 5. The applicant has had no current work capacity from 2 August 2023 to date and continuing. The Commission orders: 6. The respondent is to pay weekly benefits of compensation to the applicant as follows: (a) $1,388.50 per week from 12 December 2022 to 19 February 2023 pursuant to s 36 (1) of the Workers Compensation Act 1987 (the 1987 Act); (b) $594 per week from 20 February 2023 to 12 March 2023 pursuant to s 36 (2) of the 1987 Act; (c) $594 per week from 13 March 2023 to 31 March 2023 pursuant to s 37 (2) of the 1987 Act; (d) $651.50 per week from 1 April 2023 to 14 May 2023 pursuant to s 37 (2) of the 1987 Act; (e) $248 per week from 15 May 2023 to 28 May 2023 pursuant to s 37 (2) of the 1987 Act; (f) $1,217.60 per week from 29 May 2023 to 9 July 2023 pursuant to s 37 (1) of the 1987 Act; (g) $823 per week from 10 July 2023 to 1 August 2023 pursuant to s 37 (2) of the 1987 Act; (h) $1,217.60 per week from 2 August 2023 to 30 September 2023 pursuant to s 37 (1) of the 1987 Act; (i) $1,246.50 per week from 1 October 2023 to 31 March 2024 pursuant to s 37 (1) of the 1987 Act; (j) $1,268.80 per week from 1 April 2024 to 30 September 2024 pursuant to s 37 (1) of the 1987 Act, and (k) $1,294 per week from 1 October 2024 to date and continuing pursuant to s 37 (1) of the 1987 Act. 7. The respondent is to pay reasonably necessary expenses for medical or related treatment for the injury to the right knee and consequential condition affecting the left hip.

STATEMENT OF REASONS

BACKGROUND

Gabrielle Davis, the applicant in these proceedings, sustained an injury to her right knee on 26 October 2022.
Ms Davis was leaving the premises of her employer and respondent to these proceedings, Sonic Healthcare Group, at Kempsey where she was employed as a phlebotomist, when she felt a tear in her right knee.
Ms Davis has undergone two operations to her right knee:
(a) an arthroscopy and partial medial meniscectomy performed by Dr Liaw on 14 June 2023, and
(b) an arthroscopy and debridement of the medial meniscus performed by Dr Liaw on 8 April 2024.
Ms Davis made a claim for workers compensation benefits, but that claim was denied in dispute notices issued on behalf of the respondent on 22 November 2022 and 4 June 2024 on the grounds that Ms Davis did not sustain an injury arising out of or in the course of her employment with the respondent, that her employment was not a substantial contributing factor to the injury she had sustained, and that her injury was not covered by the journey provisions in s 10 of the Workers Compensation Act 1987 (the 1987 Act).
However, the respondent conceded that Ms Davis did sustain an injury to her right knee on 26 October 2022 while in the course of her employment with the respondent at the preliminary conference conducted in this matter on 8 October 2024.
The respondent also concedes that Ms Davis suffers from a consequential condition affecting her left hip as a result of the injury sustained on 26 October 2022.
The respondent has agreed to a general order that it will pay the reasonably necessary medical and related expenses for treatment for the injury to the right knee and a consequential condition affecting the left hip.
The outstanding dispute is in relation to the claim for weekly payments of compensation made by Ms Davis.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) the extent of the applicant’s incapacity for work as a result of her injury (ss 32A, 33, 36 and 37 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 5 December 2024. Mr McEnaney appeared for Ms Davis. Mr Grimes appeared for the respondent.
The hearing was conducted by video link and was recorded.
I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The pre-injury average weekly earnings (PIAWE) of Ms Davis were agreed to be $1,461.66.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    wages schedule filed by the applicant on 4 November 2024, and
(d)    Application to Lodge Additional Documents filed by the applicant on 2 December 2024.

Oral evidence

There was no application to cross examine the applicant or to adduce oral evidence from the applicant.

The applicant’s evidence

Ms Davis has provided a statement dated 3 September 2024.
Ms Davis states that she was employed as a sales assistant and later as a department manager with Coles Kmart from 1981 to 1991. She states that she completed a certificate to be an Assistant in Nursing in 2003 after raising her three children. She states that she was employed in an aged care facility in Kempsey between 2003 and 2010.
Ms Davis states that she commenced employment with the respondent in November 2010 and completed her phlebotomist training with the respondent.
Ms Davis states that her hours of work with the respondent were from 7.30am until 4.00pm. She states that during her working day she would collect blood and specimens from outpatients, complete ECGs, fit halter monitors, do invoicing and data entry, and provide training to trainee phlebotomists.
Ms Davis states that she attended Dr Gorbatkov at St Colluthus Medical Centre the day after the injury. She was referred for a MRI scan and a consultation with Dr Liaw, orthopaedic surgeon. She states that she took some sick leave between November 2022 and 12 December 2022, which allowed her to take some time off work.
Ms Davis states that she was on and off work between 12 December 2022 and 1 August 2023, but that she was working whenever she felt she could work. She states that there were periods when she was working partial hours and performing restricted duties. She states that her pain and symptoms would flareup when she was on her feet for too long at work, and that this required her to stop work again.
Ms Davis states that she was informed on 1 August 2023 that all suitable duties for her at work had been removed, and that she would be unable to return to work until she was certified as being completely fit for her preinjury duties. She states that she has not returned to any form of employment since 1 August 2023.
There is a letter from Natalie Langstaff, Injury Management Advisor for the respondent, dated 10 August 2023 addressed to Ms Davis which includes the following:
“As discussed on 1/8/2023 and following the withdrawal of suitable duties, regretfully the company are unable to continue to accommodate restricted duties. You will require a full medical clearance in order to return to the inherent duties of your role as a Pathology Collector.”
Ms Davis states that she had been hoping that her pain and symptoms would improve after the two operations which she had undergone, but she has not improved significantly and she has “not been fit to return to work in full capacity in any form of employment that I am trained and skilled in doing.”
Ms Davis states that she has pain, discomfort, weakness and restriction of movement in her right knee and left hip. She states that she has difficulty bending, twisting and squatting, and difficulty in standing for prolonged periods of time and walking for prolonged periods. She states that she cannot kneel. She states that she has difficulty driving.

The medical evidence

Dr Liaw, orthopaedic surgeon, initially saw Ms Davis on 16 November 2022 and he diagnosed a medial meniscal tear of the right knee associated with medial femoral condyle chondromalacia.
Dr Liaw writes in a report two months later that Ms Davis is still off work and that she was keen to proceed with the surgery to the right knee proposed by Dr Liaw.
Dr Gorbatkov issued a medical certificate on 15 December 2022 which certified Ms Davis as being unfit for work from 15 December 2022 to 18 January 2023.
Dr Gorbatkov issued a medical certificate on 17 February 2023 which stated that Ms Davis would return to partial duties for three days per week from 20 February 2023 while awaiting the surgery proposed by Dr Liaw.
Dr Kamel from St Colluthus Medical Centre issued medical certificates between 29 May 2023 and 13 July 2023 which certified Ms Davis as being unfit for work. Ms Davis underwent surgery to her right knee on 14 June 2023.
Dr Kamel completed a ‘Fitness For Work Form’ on 13 July 2023, and again on 19 July 2023, which stated that Ms Davis could work for six hours per day for four days per week with a limit of standing and sitting for 15 minutes, that she could bend but not squat or kneel, and that there was to be a lifting limit of 5kg.
Dr Kamel issued a medical certificate on 2 August 2023 which certified Ms Davis as being unfit for work from 2 August 2023 to 31 August 2023. An entry made by Dr Kamel two days before this medical certificate is issued records Ms Davis having: “R knee pain, severe, recent R medial meniscectomy, L hip pain and L knee pain, severe.”
Dr Liaw writes in a report dated 21 August 2023 that it is two months since Ms Davis underwent a right knee arthroscopy, but that she complains of ongoing medial knee pain associated with burning and grabbing pain in the right knee. He also records Ms Davis starting to develop some lateral left hip pain because Ms Davis states that she is putting more stress on the left leg. Dr Liaw finds tenderness over the left trochanteric region and concludes that Ms Davis has evidence of left hip greater trochanteric bursitis.
Dr Liaw writes in a report dated 4 October 2023 that a recent MRI scan reveals a residual cleavage tear of the body and posterior horn of the right medial meniscus. He writes that Ms Davis is keen to undergo further surgery on the right knee and she is to join the waiting list at Kempsey District Hospital for a repeat right knee arthroscopy. Dr Liaw writes that he advised Ms Davis to avoid squatting and kneeling as much as possible due to her patella arthritis.
Ms Davis underwent a second right knee arthroscopy, which was performed by Dr Liaw, on 8 April 2024.
Dr Kamel continued to issue medical certificates and Certificates of Capacity from August 2023 which certified Ms Davis as being unfit for work or having no current work capacity.
Dr Kamel has provided a short report dated 21 October 2024 which includes the following:
“Mrs Davis is still unable to kneel and to squat.
She cannot climb stairs.
Her walking is limited.
Movements restrictions affecting her daily activities.”
Dr Bodel, orthopaedic surgeon, has provided a report at the request of the lawyers for Ms Davis dated 21 May 2024. The examination was conducted by telehealth on 17 April 2024, which was only nine days after the second operation which Ms Davis underwent on her right knee.
Dr Bodel observed Ms Davis to rise slowly and walk with a right sided limp. He observed a slight discomfort on attempted hip flexion and rotation by Ms Davis, but he could not measure those movements.
Dr Bodel records that Ms Davis said that her driving tolerance of an automatic motor vehicle is about half an hour.
Dr Bodel diagnoses a torn medial meniscus in the right knee and aggravation of some underlying degenerative change in the left hip joint.
Dr Bodel opines that Ms Davis is not fit for her pre-injury duties because of her injury and that her injury will affect her future work activity.
Dr Machart, orthopaedic surgeon, has provided a report at the request of the respondent dated 6 September 2024.
Dr Machart records that Ms Davis reports her right knee pain to be 12/10 at times. He finds no deformity or effusion in the right knee, and full movement of the right knee, although it is tight in full flexion.
Dr Machart writes that the complaints of pain made by Ms Davis, which are self-described as 12/10, are not immediately apparent. He considers there is pre-existing osteoarthritis in the right knee, but it is not particularly severe, and it is not consistent with the level of disability reported by Ms Davis.
Dr Machart is asked if Ms Davis is able to undertake pre-injury employment, and he responds:
“I did not see reasons why she could not return to blood collection. This is based on my assessment of the current pathology, which is early osteoarthritis…. I am not of the opinion that she cannot kneel. As to whether her condition prevents her from conducting CPR is doubtful. Occupational therapist may be able to assist.”
Dr Machart also writes that Ms Davis has a mild degree of osteoarthritis, which is not uncommon in the general population, and would not be expected to have an impact on the type of work that she is doing.

A summary of the submissions by the parties to this dispute

Mr McEnaney on behalf of Ms Davis submits that his client has effectively been totally unfit for most of the period claimed for weekly payments of compensation.
Mr McEnaney submits that the work history provided by Ms Davis reveals her to have been a hard worker, who has “upskilled” during her working life, but she has only ever undertaken work “on her feet” as a sales assistant, assistant in nursing and phlebotomist. He submits that this means Ms Davis has very limited scope for being able to engage in suitable employment, and even that limited scope for employment has been negated by the respondent being unable to provide suitable duties to Ms Davis.
Mr McEnaney submits that Ms Davis is really in a “closed shop” when it comes to her employment with the respondent because she had been employed with the respondent for a considerable period of time, and it was within the power and knowledge of the respondent to provide her with her suitable duties, but no suitable duties have been provided to Ms Davis since August 2023.
Mr McEnaney submits that Ms Davis has significant disability to walk and stay on her feet, which is required in her job as a phlebotomist, and has an employer who could not find suitable duties for her. He submits that the combination of these factors means that Ms Davis has been totally unfit for work since August 2023.
Mr Grimes on behalf of the respondent submits Ms Davis has not provided details of what are her duties in her employment with the respondent and what difficulties she might have with those work duties. He submits that this is important because there are periods (between February and August 2023) when Ms Davis returns to work with the respondent, which is supported by medical certificates from her general practitioner, but no explanation is provided of what tasks she could and could not do during this time.
Mr Grimes also submits that there is no explanation from Dr Kamel as to why Ms Davis became totally unfit to work in August 2023 when she had been undertaking suitable duties for some months. Mr Grimes submits that it can be presumed that Ms Davis had the ability to perform suitable duties up until the second operation in April 2024.
Mr Grimes submits that there is then a lack of medical evidence from after the second operation as to the outcome of that surgery which Ms Davis underwent and how the condition of the right knee and left hip now affects her capacity for work. In particular, there is no evidence from Dr Liaw, and the material from Dr Kamel is deficient in setting out what work duties Ms Davis could undertake.
Mr Grimes submits that at the very least Ms Davis could be working for 24 hours per week in accordance with the medical certificates and forms which were issued by Dr Kamel before suitable duties were withdrawn by the respondent in August 2023.

DETERMINATION

The definitions of “current work capacity” and “no current work capacity” are set out in cl 9 of Schedule 3 of the 1987 Act 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.”
Section 32A of the 1987 Act includes a definition of “suitable employment” as:
“‘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.”
A Direction was made at the preliminary conference conducted on 8 October 2024 that the applicant file and serve a wages schedule which attaches or refers to all documents necessary to calculate the applicant’s post injury earnings. The wages schedule which has been filed by Ms Davis is of little assistance because it does not set out what she claims she was able to earn or was actually earning on a weekly or fortnightly basis at least up until 1 August 2023. The respondent has not filed a wages schedule.
There are details of the earnings of Ms Davis for the period from 12 December 2022 to 6 August 2023 which are set out in a ‘Prior Earnings Summary’ at ARD page 387, and I have relied upon this document to set out the calculations for the weekly payments of compensation to be awarded to Ms Davis.
Ms Davis attended her general practitioner the day after the incident occurred, and her presentation to Dr Gorbatkov was serious enough to warrant immediate referral for a MRI scan and a consultation with an orthopaedic surgeon. Dr Liaw diagnosed a medial meniscal tear of the right knee associated with medial femoral condyle chondromalacia within a month of the incident at work. Ms Davis states that she took some sick leave between the date of the injury and 12 December 2022.

I find it reasonable to conclude from the evidence from Ms Davis and the medical evidence which I have referred to that Ms Davis needed to cease work as a result of the injury to right knee for the period from 12 December 2022 to 19 February 2023. The respondent did not argue against an award of weekly payments for this period. I accept that Ms Davis had no current work capacity over this 10 week period.
Ninety-five per cent of PIAWE amounts to $1,388.50. There will be an award of $1,388.50 from 12 December 2022 to 19 February 2023 pursuant to s 36 (1) of the 1987 Act. There is a record of some payment made to Ms Davis in this period in the Earnings Summary, but the dates of those payments indicate that they are likely to be for holiday pay.
The Earnings Summary for the next 12 weeks from 20 February 2023 to 14 May 2023 record that Ms Davis earned between $1,182.73 and $1,589.10 per fortnight when she returned to work on the restrictions recommended by Dr Gorbatkov. That would indicate an ability to earn of $794.50 per week during this period (being half of $1,589.10). This period also includes indexation of PIAWE on 1 April 2023 to $1,522 (of which 95% amounts to $1,446). The award of weekly payments of compensation for this period will be:
(a) $594 per week from 20 February 2023 to 12 March 2023 pursuant to s 36 (2) of the 1987 Act;
(b) $594 per week from 13 March 2023 to 31 March 2023 pursuant to 37 (2) of the 1987 Act, and
(c) $651.50 per week from 1 April 2023 to 14 May 2023 pursuant to 37 (2) of the 1987 Act.
The Earnings Summary records that Ms Davis earned $2,396 per fortnight (or $1,198 per week) for the two week period between 15 May 2023 and 28 May 2023). The difference between 95% of indexed PIAWE and those earnings amounts to $248. There will be an award of $248 per week from 15 May 2023 to 28 May 2023 pursuant to s 37 (2) of the 1987 Act.
Ms Davis then ceased work to undergo surgery to her right knee, and I accept that this rendered Ms Davis totally unfit for any work for the period from 29 May 2023 to 9 July 2023. There will be an award of $1,217.60 per week from 29 May 2023 to 9 July 2023 pursuant to s 37 (1) of the 1987 Act (the amount of $1,217.60 being 80% of indexed PIAWE).
The Earnings Summary then records that Ms Davis worked for four weeks from 10 July 2023 to 6 August 2023, although Ms Davis states that her last day of work was 1 August 2023, and that is supported by the medical certificate issued by Dr Kamel which certified Ms Davis as being unfit for work from 2 August 2023.
The details in the Earnings Summary indicate that Ms Davis had the ability to earn $623 per week during this period (being half of $1,246 earned in the last two weeks of her work). The difference between $1,446 (being 95% of indexed PIAWE) and $623 is $823. There will be an award of $823 per week from 10 July 2023 to 1 August 2023 pursuant to s 37 (2) of the 1987 Act.
A summary of the calculations which have been made for the payment of weekly benefits of compensation is as follows:
Period  PIAWE          95%/80% of PIAWE    Ability to earn           Award
12/12/2022 – 19/2/2023    $1,461           $1,388.50                  nil  $1,388.50
20/2/2023 – 31/3/2023    $1,461           $1,388.50                  $794.50  $594
1/4/2023 – 14/5/2023      $1,522           $1,446  $794.50  $651.50
15/5/2023 – 28/5/2023    $1,522           $1,446  $1,198  $248
29/5/2023 – 9/7/2023      $1,522           $1,217.60                  nil  $1,217.60
10/7/2023 – 1/8/2023      $1,522           $1,446  $623  $823
The substantial dispute between the parties in the claim that is made by Ms Davis for weekly payments of compensation occurs on or about 1 August 2023 when Ms Davis is informed that the respondent can no longer accommodate her on restricted duties, and Dr Kamel changes the certificates he has been issuing from Ms Davis having a capacity to work with restrictions for 24 hours per week to Ms Davis being totally unfit for work.
The medical evidence from around this time records an increase in symptoms in the right knee and onset of symptoms in the left hip. Dr Kamel records Ms Davis having: “R knee pain, severe, recent R medial meniscectomy, L hip pain and L knee pain, severe” on 31 July 2023. Dr Liaw writes on 21 August 2023 that Ms Davis complains of ongoing medial knee pain associated with burning and grabbing pain in the right knee.
Dr Liaw recommends further surgery to the right knee six weeks later, having had the benefit of a new MRI scan and a further examination of Ms Davis. He also finds evidence of left hip greater trochanteric bursitis.
The denial of liability by the respondent meant that Ms Davis could not undergo surgery as soon as that was recommended by Dr Liaw, but had to wait some eight months before the surgery could be performed in a public hospital.
I conclude from this review of the contemporaneous medical evidence that Ms Davis was not capable of undertaking her pre-injury work as a phlebotomist, even with the restrictions on duties and hours allowed for by Dr Kamel in the two forms he completed in July 2023. This is because I accept that the work of a phlebotomist requires standing for extended periods of time and also having a certain degree of mobility and agility when attending to patients, which are requirements of the job which Ms Davis could not meet because of ongoing pain in the right knee and left hip. I do not accept a submission made by Mr Grimes that the work of a phlebotomist is a sedentary job.
I note that most of the seven photos provided by the respondent to Dr Kamel when assessing his capacity for Ms Davis to undertake work include a worker standing to attend to those duties, and that the job of blood collection includes: “stand to perform this task” and “walk in between rooms.”
Mr McEnaney submits that the work history provided by Ms Davis of only ever working “on her feet”, and the withdrawal of the limited work provided by the respondent, means that Ms Davis effectively has had no current work capacity since 2 August 2023.
Ms Davis states that her duties included invoicing and data entry, as well as training. It is also reasonable to conclude that her previous jobs as an assistant in nursing and a department store manager would mean that Ms Davis has some administrative and clerical skills. All of this would suggest that Ms Davis would be at the very least suited to some basic clerical or administrative employment from 2 August 2023, except when she underwent the second operation in April 2024.
However, the quite specific administrative tasks Ms Davis has been required to do for some 12 years with the respondent is not necessarily replicated in administrative tasks in other industries or businesses. Being able to invoice or undertake data entry for the particular business of pathology does not mean that these jobs can be readily applied elsewhere.
I find particular force in the “closed shop” argument from Mr McEnaney that the length of time which Ms Davis has worked for the respondent makes it very difficult for her to be found to have capacity for any suitable employment as set out in s 32A of the 1987 Act.
In Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), DP Roche referred to the determination of suitable employment being a practical exercise having regard the definition set out in s 32A and then said at [63]:
“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’.”
In Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer [2020] NSWWCCPD 36 (Gradan Bathrooms), DP Snell referred to Dewar (at [63]) and then said at [87]:
“The short point is that whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work. If there are not, then an injured worker will not have current work capacity.”
Having regard to the increase of pain in the right knee and onset of pain in the left hip in mid-2023, the discrete skills that Ms Davis had working in a very specific occupation for some 12 years, and the inability of the respondent to find any work for Ms Davis despite being a large pathology provider in New South Wales, I cannot be satisfied that there are any real jobs which Ms Davis would have been able to work in between 2 August 2023 and the operation she underwent in April 2024.
I therefore find that Ms Davis had no current work capacity from 2 August 2023 to 8 April 2024, being the date of her second operation.
Ms Davis would also have no current work capacity due to the surgery she underwent to her right knee on 8 April 2024. Mr Grimes submits that a month be allowed for Ms Davis having no current work capacity due to that surgery, which was the timeframe following her first operation. He submits that thereafter there is a lack of medical evidence which can assist in making a determination as to any work capacity which Ms Davis has had since she underwent her second operation.
Dr Bodel is of no assistance in regard to this particular period of the claim because he only saw Ms Davis nine days after her operation and can only opine that she is not fit for her pre-injury duties. There is no material following the surgery from Dr Liaw.
Dr Kamel has continued to provide certificates which certify Ms Davis as being unfit for work or having no current work capacity since her second operation. Caution does need to be exercised when approaching certificates which merely repeat the same restrictions over months or even years, and there is no indication in those certificates as to how an injury is progressing. President Keating said in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde) at [93]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”
However, Dr Kamel is in a good position to provide an assessment of any capacity on the part of Ms Davis for work following her operation because he has been regularly monitoring her situation. I prefer the material and assessments from Dr Kamel because he has been able to regularly review his patient and consider whether she has had any capacity for work since her operation.
I prefer the opinion of Dr Kamel over that of Dr Machart. In my view, the dismissive opinion from Dr Machart that the condition of the right knee is not particularly severe and is not consistent with the level of disability reported by Ms Davis does not match the actual history of the treatment of the right knee. Ms Davis has consistently complained of pain in the right knee and those complaints have been accepted by Dr Kamel and Dr Liaw. Dr Liaw has considered the condition of the right knee to be serious enough to warrant two separate operations.
It might be that Ms Davis has reached a stage where she could be a candidate for some limited work. It has only been a couple of months since the respondent reversed its decision on liability, and the respondent continues to have obligations under Chapter 3 of the Workplace Management and Workers Compensation Act 1998 to assist Ms Davis to return to suitable employment.
However, my preference on the limited available evidence is to prefer the opinion of Dr Kamel. There will therefore be a finding that Ms Davis has had no current work capacity from 8 April 2024 to date and continuing.
The award of weekly benefits of compensation from 2 August 2024, which is based upon 80% of indexed PIAWE and is paid pursuant to s 37 (1) of the 1987 Act, is as follows:
(a)    $1,217.60 per week from 2 August 2023 to 30 September 2023;
(b)    $1,246.50 per week from 1 October 2023 to 31 March 2024;
(c)    $1,268.80 per week from 1 April 2024 to 30 September 2024, and
(d)    $1,294 per week from 1 October 2024 to date and continuing.
There will also be an order that the respondent is to pay the reasonably necessary expenses for medical or related treatment for the injury to the right knee and consequential condition affecting the left hip.

[2024] NSWPIC 688

11 December 2024