Dimond v Dimond Brothers Concrete Pumping Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dimond v Dimond Brothers Concrete Pumping Pty Ltd [2024] NSWPIC 644
APPLICANT:	Jonti Dimond
RESPONDENT:	Dimond Brothers Concrete Pumping Pty Ltd
MEMBER:	Mitchell Strachan
DATE OF DECISION:	20 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4, 9A and 10(3)(a); whether applicant in course of employment; whether applicant was undertaking activities in capacity as director of respondent; motorcycle accident; whether employment substantial contributing factor; Michael Duke v State of New South Wales (Northern Sydney Local Health District) & Ors; Maurino v Amberlor Pty Limited; Stevens v Brodribb Sawmilling Co Pty Ltd; Fed Consulting Services Pty Ltd v Gelo; Corporations Act 2001 (Cth); Workers Compensation Act 1951 (ACT); Hook v Rolfe; Skea v Legg; Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden; Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd; Held – applicant’s injury arose in course of employment; employment a substantial contributing factor; applicant entitled to award of weekly compensation on total and partial incapacity basis.
DETERMINATIONS MADE:	The Commission determines: Findings: 1. When undertaking administrative duties at the address in Wilberforce, the applicant was in the course of his employment with the respondent. 2. At the time of his accident on 19 April 2022, the applicant was in the course of his employment with the respondent. 3. The applicant’s employment was a substantial contributing factor to his injury. 4. From 1 November 2022 to 29 May 2023 the applicant was partially incapacitated for work and could earn $180 per week in suitable employment. 5. From 30 May 2023 the applicant was partially incapacitated for work and could earn $450 per week in suitable employment. 6. I make findings and orders set out in the certificate of determination. Orders: 7. The respondent is to pay the applicant weekly compensation as follows: (a) pursuant to s 36 of the Workers Compensation Act 1987: (i) from 20 April 2022 to 19 July 2022 at the rate of $2,177.4 per week. (b) Pursuant to s 37 of the Workers Compensation Act 1987: (i) from 20 July 2022 to 30 September 2022 at the rate of $1,833.60 per week; (ii) from 1 October 2022 to 30 October 2022 at the rate of $1,896 per week; (iii) from 1 November 2023 to 31 March 2023 at the rate of $1,716 per week; (iv) from 1 April 2023 to 29 May 2023 at the rate of $1,804 per week; (v) from 30 May 2023 to 30 September 2023 at the rate of $1,896.50 per week; (vi) from 1 October 2023 to 31 March 2024 at the rate of $1,946.85 per week; (vii) from 1 April 2024 to 30 September 2024 at the rate of $1,991.50 per week, and (viii) from 1 October 2024 to date and continuing at the rate of $2,039 per week. 8. The parties have liberty to apply within seven days with respect to the amounts set out in order 7 above.

STATEMENT OF REASONS

BACKGROUND

Jonti Dimond (the applicant) is the sole director and employee of Dimond Brothers Concrete Pumping Pty Ltd (the respondent). The respondent provides concrete pumping services.
On 19 April 2022, while riding his motorcycle from a location in Girraween where he had left a work truck to be collected the next morning to an address in Wilberforce which was both the principal place of business of the respondent and housed a caravan which was the respondent’s office and was also the applicant’s place of abode, the applicant was involved in a significant motorcycle accident.
The accident left him severely injured and he remains wheelchair bound.
The applicant regularly undertook administrative work from the caravan in the evening once he returned to the Wilberforce address.
The claim was declined on the basis the applicant’s injuries did not arise out of or in the course of his employment and that employment was not a substantial contributing factor to his injuries.
The applicant subsequently commenced proceedings in the Personal Injury Commission (Commission).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained an injury arising in the course of or out of his employment (s 4 of the Workers Compensation Act 1987 (1987 Act));
(b)    whether employment was a substantial contributing factor (s 9A of the 1987 Act), and
(c)    subject to the determination of first two issues issues, quantification of the applicant’s entitlement to weekly compensation.
In the course of the conciliation conference, agreement was reached on the following issues:
(a) the applicant’s pre-injury average weekly earnings (PIAWE) were $2,292 per week subject to indexation as set out in the respondent’s wages schedule.
(b) For any periods where the Commission makes a finding that the applicant has a partial capacity for work, the applicant could earn $30 per hour in suitable employment.

PROCEDURE BEFORE THE COMMISSION

The parties attended a conciliation conference and arbitration hearing in Sydney on
29 October 2024.
The applicant was represented by Mr Young of counsel, instructed by Ms Parisis of Stacks Goudkamp. Mr Perry of counsel appeared for the respondent, instructed by
Mr McTackett Turks Legal. A representative of the respondent’s insurer was also in attendance.
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;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents applicant 22 October 2024;
(d)    applicant’s wages schedule, and
(e)    respondent’s wages schedule.
The respondent had filed an Application to Admit Late documents dated 11 October 2024 however those documents went to the calculation of the applicant’s PIAWE which has now been agreed and did not seek to rely on those documents.
The applicant and respondent also sought to rely on outlines of submissions which had previously been reduced to writing by both parties and these have been considered in this determination and referred to below as necessary.

Oral evidence

Neither party sought leave to adduce any oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Section 4 of the 1987 Act: did the injury arise out of or in the course of the applicant’s employment with the respondent?

Applicant’s submissions

The applicant submits that he is both the sole director of the respondent and an employee. He submits there is no dispute that when he undertakes onsite concrete pumping and supervision work this is work that he does in the course of his employment as an employee of the respondent.
The applicant submits that this characterisation extends to work of an administrative nature including bookkeeping and payroll activities. The applicant submits that this work is all “part and parcel” of his employment duties and undertaken as an employee of the respondent.
The applicant submits his significant injuries occurred while he was travelling between two places of work. That is he was travelling from Rozelle where he had been undertaking concrete work to his office and the registered address of the respondent company, which is located on the property where he lives, where he intended to complete administrative activities.
The applicant submits that the registered address of the respondent is the applicant’s residential address. This is supported by:
(a) the registration details of the caravan, registered in the name of the respondent company, which serves as the respondent’s office, and
(b) the company statement which records the registered office and principle place of business is the same address in Wilberforce, New South Wales.
The applicant submits I should accept his evidence, corroborated by these two pieces of objective evidence, with respect to the caravan, located on the property in Wilberforce, being not only the registered address but also the principal place of business of the respondent, and the place from which the applicant conducted administrative work.
The applicant submits that his typical work day involved leaving home at about 6.00am to work on site. After he returned home he worked for one to one and a half hours in the caravan undertaking invoices, returning emails and paying staff. The applicant submits that this is supported by his own statement evidence and the available invoices, many of which are time stamped by the invoicing software as being sent during the evening.
The applicant submits, supported by his statement evidence, that on the evening of the accident, he intended to return to the office to invoice for work undertaken on 18 and 19 April 2022 but unfortunately the accident occurred.
The applicant submits this is consistent, when considering the timing of the invoices in evidence, that another invoice was due.
The applicant submits that his evidence that his working day does not end on site and he still needs to do paperwork and invoicing is consistent and should be accepted.
The applicant also relies on the statement of Rachel Gough and submits this is entirely consistent with what the applicant says in that she observes that he goes to the caravan and then emerges at some later time.
The applicant submits I should accept what he says his duties involve. It is not all concrete pumping and there is an administrative side to his role as well.
The applicant submits that in so far as the respondent would suggest that administrative work could not be, in this instance, part of the applicant’s employment and this it is some kind of directors work this is not supported by the evidence and there is no evidence to rebut what the applicant says. The applicant does concede that this is the nature of it where the applicant is both the sole director and employee of the respondent.
The applicant submits it is not logical, that there be a separate administrative role that is not part of his duties. It makes no sense that he does concrete work and then leaves it to chance to get paid. It is part and parcel of the work that he does.
The applicant submits that I would not accept there would be any expectation that a director would do administrative or bookkeeping work. If it was a bigger organisation then the respondent would employ a bookkeeper.
The applicant submits in summary that his working day does not start and end on site. No operation, big or small can operate realistically without there being administrative work to be done. The applicant’s work continues after he leaves site at the other work site being the caravan.
The applicant submits that factual parallels can be drawn from the decision of Senior Member Beilby in Michael Duke v State of New South Wales (Northern Sydney Local Health District) & Ors (30 August 2022) and referred to the consideration of relevant authorities at [45] to [59].
The applicant also refers to the decision of Neilson J in Maurino v Amberlor Pty Limited [1996] NSWCC 38.
Both decisions are similar in that the worker was injured while traveling from their place of work to their home and were in both instances found to be in the course of their employment while doing so.

Respondent’s submissions

The respondent submits that, even accepted that some invoices were prepared on a computer at the address in Wilberforce, it is the applicant who must establish that the work was done pursuant to a contract of service between himself and the respondent and he needs to produce some evidence of that.
The respondent submits the respondent is the applicant’s company and that when invoices are sent out and those invoices paid then the applicant himself benefits. The respondent submits that it is neither rare nor remarkable for a director and shareholder to have a company and to advance the interests of the company in many ways. If that is what is happening there is no reason to assume that a contract of service exists between the company and the beneficiary.
The respondent submits that if I am to find that the applicant sent out invoices, it does not follow that he did so as an employee. The respondent agrees that the applicant wears more than one hat.
The respondent refers to the evidence of the applicant that following his accident while he was in hospital he was able to undertake general administrative work and that an iPhone and laptop is all that is needed to perform that work. The respondent notes that the records indicate that some invoices were sent in the morning and not all were sent during the evening.
The respondent submits that it is unremarkable that a company should have a business place (for present purposes in Wilberforce) and that a director and shareholder should use that address. It is not just as a place from which the employer undertakes duties. It does not follow that any work done by the applicant is done as an employee. This is something that the applicant needs to prove.
The respondent drew attention to the last tax return before the applicant’s injury and it is instructive that with a contract of service, where remuneration is paid as a wage or salary, is the designation of a payment to a worker. The 2021 tax return demonstrates that the applicant was paid salary or wages with tax withheld and the main occupation is recorded as concrete pump operator. That is that this was a payment made to the applicant by the respondent for work as a concrete pump operator.
The respondent submits that it does not contest the proposition that there was a contract of service between the respondent and the applicant, and that contract of service required the applicant to drive a vehicle to site, to operate a concrete pump, to drive the vehicle from Rozelle back to a site in Girraween. The respondent submits that following this though the applicant simply went home.
The respondent submits it is perfectly open to accept that the invoices were sent by the applicant as a director of the respondent. That is, he sends out his employees to do the work, once he knows they have done then work, the applicant sends out invoices. The applicant needs to demonstrate that the contract between himself and the corporation he established provided for that. Otherwise, it must be found that he just went home.
Finally the respondent submits that cases where there is a commonality between the employer and employee are a special class. The respondent referred to the historical development of the law in this regard but accepted that the applicant and respondent represent two separate legal entities. The applicant can demonstrate that he was employed and paid as a concrete pumper but to assert is was paid as an administrator is different.
The respondent submitted that it was necessary to find that the applicant was obligated to undertake the administrative work and referred to the indicia of employment set out in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.

Consideration

Section 4(a) of the 1987 Act provides that an “injury” for the purpose of the Act “means a personal injury arising out of or in the course of employment”.
It is conceded by the respondent in submissions that the work the applicant undertook on site while concrete pumping and supervising, was work undertaken in the course of his employment with the respondent. The respondent further conceded the applicant remained in the course of his employment until the point at which he left the concrete pumping truck at a location in Girraween. The respondent says that this was the end of his day as an employee. The applicant then commenced on a periodic journey home which does not attract (and it has not been asserted by the applicant that it does) the benefit of s 10 of the 1987 Act.
The respondent asserts that the further activities the applicant would undertake from the caravan in Wilberforce (bookkeeping and payroll) were activities undertaken by the applicant in his role as a director rather than an employee of the respondent, such that the accident did not take place during an overall period of employment but rather after his employment had ceased.
I do not accept that the administrative work undertaken by the applicant at the address in Wilberforce was work undertaken as a director rather than an employee of the respondent.
The only person in a position to give evidence as to the nature of the relationship between the applicant and respondent is the applicant.
The applicant states in his statement:
“Since starting Diamond Brothers, I worked in that business on a full-time basis. My role was separated into two main duties:
a.On Site Concrete Pumping and Supervising (‘Labour’); and
b.Booker-keeping [sic], Payroll and general business administration (‘Office’).”
The applicant then sets out what was involved with respect to both the labour duties and office duties and provides a photograph of the office set up in the caravan.
There is no evidence from the applicant that any of these duties were undertaken as a director rather than an employee of the respondent. The only available evidence is that both the work on site and the office work were undertaken by the applicant as a full-time employee of the respondent.
The respondent referred to the tax records where the applicant’s main occupation is “concrete pump operator”. I do not consider the fact that this document does not record the applicant as also undertaking office based duties as evidence of anything other than the fact that when asked what his main occupation was, he (or his accountant) has described it as a concrete pump operator. This does not mean that other work ancillary to this role was not also undertaken by the applicant as an employee.
The respondent referred to the indicia of employment set out in Stevens. It is an important distinction that in Stevens the High Court was considering whether Mr Gray and Mr Stevens were employees or independent contractors rather than a directors. The court found that in addition to control, consideration could also be given to (as relevant to the present matter) the mode of remuneration, the provision of equipment, hours of work and provision of leave, obligation to work at the direction of the employer, the deduction of income tax, the payment of business expenses from remuneration and delegation of work.
The applicant’s tax return indicates that he did receive some income ($10,000) from his role as a director but the majority of his income ($169,000) was paid as a wage or salary. The necessary equipment, the most significant being the caravan from which the office work was undertaken, was provided by the respondent. The hours in which the applicant did the office work does appear to be at his discretion subject to need although the fact that he worked onsite during the day largely necessitated the work be undertaken in the evening. There is no evidence with respect to the provision of leave. On the evidence of the applicant, he was obligated to undertake both the site work and the administrative work. Income tax was withheld from payments which he received and business expenses (including the provision of the caravan were met by the respondent. The applicant, as a director of the respondent, could have employed somebody to undertake bookkeeping work to who the work could have been delegated but had not done so and as such he was required to undertake that work.

The above consideration of the indicia, particularly the manner in which he was renumerated and the relatively minimal amount pain to the applicant as directors fees (which may also be “allowances, earnings, tips”, it is not known from the evidence) and the fact that the respondent provided the location from which the work was to be undertaken, supports a finding that the administrative work was undertaken by the applicant as an employee of the respondent.
A similar issue was considered by Mossop M (as he then was) on appeal to the ACT Supreme Court in Fed Consulting Services Pty Ltd v Gelo [2014] ACTSC 185. This appeal concerned, in part, whether certain activities undertaken by Mr Gelo in New South Wales were conducted by him as an employee or director for the purpose of ascertaining the territory or state to which his employment was connected in accordance with Part 4.2A of the Workers Compensation Act 1951 (ACT).
At first instance the learned magistrate found, when considering whether some activities (the filling of a truck with fuel, where this wasn’t a core part of the worker’s role) were undertaken by the worker in his capacity as an employee or director:
“I do not accept that it was something carried out by him acting in his capacity as a director. In the absence of other evidence there is no reason to conclude that his duties as a director went beyond what would be required of him by the Corporations Law.”[1]
[1] Fed Consulting Services Pty Ltd v Ilija Gelo [2012] ACTMC 3 at [59].
On appeal Mossop M found the fact that the worker was “an officer of the company, being a managing director, should not alter the analysis of his position as a ‘worker’ under the Act”.[2]
[2] Fed Consulting Services Pty Ltd v Gelo [2014] ACTSC 185 at [30].
The respondent does not dispute that a contract of service existed between the applicant and respondent for on site work. The applicant’s undisputed evidence is that contract of service extended to the administrative work undertaken at the address in Wilberforce. There is no evidence that the applicant’s duties as a director of the respondent went beyond what was required of him under Corporations Act 2001 (Cth). For the reasons set out above I find that when undertaking administrative duties at the address in Wilberforce, the applicant was in the course of his employment with the respondent.
I accept the applicant’s undisputed evidence that on 19 April 2022 he was travelling from the worksite to the Wilberforce address (relocating the work truck enroute) with the intention to head back to the mobile home/office to complete some invoices and payroll work. This evidence is consistent with the applicant’s evidence as to his usual practice supported by the invoicing records which demonstrate he regularly undertook invoicing work in the evening and the statement evidence of Ms Gough.
I accept, having made these factual findings, that the applicant’s employment with the respondent had not ceased for the day when he deposited the truck in Girraween but remained in the course of his employment with the respondent, travelling to the caravan in Wilberforce where he intended to undertake further administrative work consistent with his usual practice.
I accept that at the same time the applicant was also travelling to his place of abode, also at the Wilberforce address. The decisions of Hook v Rolfe (1986) 7 NSWLR 40 at [44]-[45] and Skea v Legg [2000] NSWCC 20 confirm that there can be a duality of purpose but that this does not prevent the applicant from being in the course of his employment, even though one purpose is unrelated to employment.
The applicant’s injuries occurred when he was involved in a motorcycle accident travelling from Girraween to Wilberforce. I accept while travelling the applicant was in the course of his employment with the respondent such that the requirements of s 4(a) of the 1987 Act are satisfied.

Was employment a substantial contributing factor – s 9A of the 1987 Act

Applicant’s submissions

The applicant submits that if I am to find that he was employed in the course of his employment (as I have done) I would also be satisfied that his employment was a substantial contributing factor to the injury such that s 9A of the 1987 Act would be satisfied.
In reply, the applicant accepted that s 9A provided a further and additional requirement and must be independently satisfied for the applicant to succeed but when the requirements of s 9A are considered I would be satisfied employment was a substantial contributing factor to the injury.
The applicant further submitted that the test for a journey claim to be compensable in s 10(3A) of the 1987 Act is not applicable.
The question under s 9A is it whether employment is a substantial contributing factor, and it is answered if I find in the applicant’s favour that he is traveling to his home office at the time of the accident.

Respondent’s submissions

The respondent submits that the applicant was travelling undoubtably travelling on a periodic journey from his place of employment to his place of abode.
The respondent sought to rely on the decision of Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 submitted that the requirements of s 10(3A) do not assist the worker and effects the argument under s 9A.
The respondent submits that where the applicant cannot establish a compensable journey claim due to the operation of s 10(3A) then he cannot establish that s 9A has been established.
The respondent referred to the decision of the Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 with respect to substantial contributing factor and that consideration needed to be had to whether the factor is real and of substance.
Further, the respondent submitted that the applicant does not assert that his work was so urgent or his concentration overcome so as to cause the accident and as such there is no contribution between employment to the injury and the claim must fail under s 9A even if he was in the course of his employment at that time.

Consideration

Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note: In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.
(3)     A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Firstly, I do not accept the applicant’s submission that a finding that the applicant was in the course of his employment at the time of the accident alone is sufficient to satisfy the requirements of s 9A of the 1987 Act. Section 9A(3) makes it clear that employment is not to be regarded as a substantial contributing factor merely because the injury arose out of or in the course of employment. The requirements of s 9A must also be independently satisfied.[3]
[3] Larson v Commissioner of Police [2004] NSWCA 126; (2006) 3 DDCR 365 Tobias JA, with whom Mason P and Santow JA agreed at [38]; see also ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 at [17].
I also do not accept the respondent’s submission that the tests in ss 9A and 10(3A) are analogous such that a failure to meet the test in s 10(3A) would mean that s 9A could not be satisfied. The decision of Wickenden does not assist the respondent in this regard. Section 10(3A) requires there to be “a real and substantial connection between the employment and the accident or incident out of which the personal injury arose”. Section 9A requires that employment be a substantial contributing factor. This has been characterised in Badawi as being “real and of substance”.
Whether employment is a substantial contributing factor to the injury is a question of fact and is a matter of impression and degree to be decided after a consideration of all the evidence.[4]
[4] Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]; McMahon v Lagana [2004] NSWCA 164 at [32]; Workcover Authority of NSW v Walsh [2004] NSWCA 186 per Hodgson JA at [5] and Tobias JA at [97] (McClellan AJA agreeing); Murray v Shillingsworth [2006] NSWCA 367 per Einstein J at [53].
Employment only need to be a substantial contributing factor, not “the” substantial contributing factor.
The applicant’s injury occurred as a result of a motorcycle accident.
The police report from the accident is in evidence before the Commission but was not referred to by counsel for the respondent or applicant. This is not surprising as it simply confirms that the applicant was travelling around 50kmph and approached a slight curve in the road. The applicant has slid out and slid into the wired fence. There is no suggestion that the applicant was travelling at speed or the manner in which he was driving significantly contributed to the accident.
It is the applicant’s undisputed evidence that he was travelling from Girraween where he had left the truck to be collected the next day (an activity uncontroversially connected to his employment and the type of task that is required of him generally) to Wilberforce (where I have found he was to undertake further work as he was also generally required to do).
I am satisfied that this activity of travelling from one work activity to another work activity substantially contributed to his accident. That is, travelling from Girraween to Wilberforce was part of his employment and the fact that he was travelling contributed to his injury. I am further satisfied that the connection between employment and the injury was real and of substance such that it was a substantial contributing factor and the requirements of s 9A of the 1987 Act have been met.
In making this finding I have taken into account the nature of the work performed by the applicant and the particular tasks. I have accepted that moving the truck to Girraween was a task required of the applicant has part of his employment with the respondent. It was this task, once completed, that necessitated the applicant then needing to leave Girraween and the awaiting administrative work that necessitated him to travel onwards to Wilberforce. It is this employment activity that was a substantial contributing factor to his injury.
I have also considered whether the injury would have occurred, whether the applicant had been at work or not. I accept that he was also travelling to his place of abode. However, employment only needs to be a substantial contributing factor and the fact that he was also travelling to his place of abode does not take away from the contribution of employment as a substantial contributing factor.
I note that I am only required to consider the example set out in s 9A(2) in so far as they are relevant.
It was the employment related travel that was a substantial contributing factor to the injury.

Incapacity

Applicant’s submissions

It is common ground between the parties that if liability is determined in favour of the applicant, the claim for total incapacity is conceded until at least 2 November 2022.
The applicant submits I should be satisfied he was totally incapacitated to 29 May 2023.
This is on the basis that there is no medical evidence to say that the applicant had a capacity for work of any time prior to 29 May 2023. The applicant noted that the respondent would rely on comments made by the applicant in his own statement that from around October 2022 he was able to perform light duties such as invoices and continue to do so but was not drawing a wage.
This applicant submits this is very imprecise and there is no medical evidence to substantiate an ability to work prior to May 2023. The applicant submits I should not accept his statement evidence at face value because it is too imprecise and I would be more satisfied with certificates of capacity.
The applicant submits that the first medical evidence that accurately shows capacity is accurate is a certificate of capacity 29 May 2023.
The applicant also submits that the respondent would say that a finding of partial incapacity should not be confined to 15 hours per week but should be something in the vicinity of 16 hours per week again based off the applicant’s evidence.
The applicant submits I should find a capacity for 15 hours per week at all time from May 2023 onwards. The applicant makes this submission based on the report of the general practitioner, Dr Senthil Goviandarajan dated 8 July 2024, which says the applicant has capacity for three hours per day five days per week, that is 15 hours per week. Dr Goviandarajan explains that the applicant is wheelchair bound and needs to change posture a few times a day, needs to use a catheter to empty his blader, is slow at moving around and can get tired quickly. His medication also makes him tired and sleepy at times. His current capacity is only light desk based duties. The applicant submits I would accept Dr Goviandarajan as he is a doctor who has treated the applicant consistently, essentially from the time of the accident. He regularly monitors the applicant and oversees and coordinates a variety of treatment and is well aware of the applicant’s medical conditions, capabilities and capacity better than any other doctor in these proceedings.
The applicant says I would not accept the opinion of Dr Shazad who considered the applicant fit for five hours per day, five days per week, over that of Dr Goviandarajan as he has only seen the applicant once in a medico-legal setting and only provides a bare opinion without supporting reasons. Dr Goviandarajan on the other hand provides explanation and justification.

Respondent’s submissions

The respondent submits that from October 2022 the applicant’s statement demonstrates that he commenced to do employment duties being light duties involving invoices.
On this basis the respondent submits I would have to find some capacity for employment from 1 November 2022 and that he clearly had capacity from that time to work 16 hours per week that he said he has.
The respondent also urged upon me the opinion of Dr Shazad who specialises as an occupational physician and is well placed to look at questions of capacity. The respondent submitted I would find the applicant had an ongoing capacity of 25 hours per week.

Consideration

The parties agree that the applicant’s PIAWE was $2,292 as indexed in the respondent’s wages schedule. The parties have further agreed that for any period of partial incapacity, the applicant could earn $30 per hour.
I find that the applicant was totally unfit for work from 19 April 2022 to 1 November 2022, consistent with the concession made by the respondent and the certificate of capacity.
While I accept there is limited medical evidence with respect to capacity from 1 November 2022 to 29 May 2023, I cannot accept the applicant’s submission that I should completely disregard his statement evidence that he was undertaking some administrative work from October 2022. The applicant presented through his evidence and during the arbitration hearing as a stoic man who despite significant and life altering injuries has attempted to work in his business to the extent of his capacity. I accept that this occurred from 1 November 2022. However, I find the applicant’s evidence that he was working 16 hours per week during this period to be inconsistent with the medical evidence, particularly that of Dr Goviandarajan. I accept that the evidence of the applicant is a generalisation and likely overstates the amount he actually worked in the period 1 November 2022 to 29 May 2023. Weighing the available evidence, I find that the applicant had capacity for two hours per day, three days per week during the period 1 November 2022 to 29 May 2023. With an agreed rate of $30 per hour this results in a residual capacity of $180 per week for that period.
With respect to the applicant’s ongoing capacity after 29 May 2023, I prefer the opinion of Dr Goviandarajan over that of Dr Shazad and accept the applicant’s submissions in this regard. Dr Goviandarajan has provided detailed reasons for his opinion including the ongoing difficulties and barries the applicant faces in suitable employment managing his catheter, ongoing pain and the side effects of medication and being wheelchair bound.
Dr Shazad does not appear to have considered these issues in providing his opinion.
For these reasons I find the applicant has a capacity for three hours per day, five days per week from 29 May 2023 equating to a residual capacity to earn of $450 per week.

SUMMARY

The applicant’s injuries on 19 April 2022 occurred in his employment and his employment was a substantial contributing factor.
The applicant was completely incapacitated from 20 April 2022 to 1 November 2022.
From 1 November 2022 to 29 May 2023 the applicant was partially incapacitated for work and could earn $180 per week in suitable employment.
From 30 May 2023 the applicant was partially incapacitated for work and could earn $450 per week in suitable employment.
I make findings and orders set out in the Certificate of Determination.
The indexed amounts of weekly compensation set out in the Certificate of Determination have been taken from the respondent’s wages schedule as agreed between the parties however have been rounded to the nearest $10 in accordance with s 82H of the 1987 Act.

[2024] NSWPIC 644

20 November 2024