Djordjevic v Blacktown City Council
[2023] NSWPIC 2
•9 January 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Djordjevic v Blacktown City Council [2023] NSWPIC 2 |
| APPLICANT: | Peter Djordjevic |
| RESPONDENT: | Blacktown City Council |
| Member: | Philip Young |
| DATE OF DECISION: | 9 January 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Applicant claims awards in respect of lumbar spine injury and separate psychological injury; seeking two weekly payment awards together with claims under sections 60 and 66 of the Workers Compensation Act 1987 (1987 Act); Held – applicant suffered two separate injuries and two separate incapacities entitling the applicant to two separate awards but in the aggregate not exceeding 80% of pre-injury average weekly earnings (PIAWE); award from 15 February 2021 at 80% of agreed PIAWE; general award section 60 of the 1987 Act for both conditions; matter remitted to the President for referral to Medical Assessors to determine whole person impairment. |
| determinations made: | 1. Award in favour of the applicant against the respondent in respect of psychological injury which occurred as a result of work events between 2017 and 27 August 2020. 2. Since 15 February 2021 the applicant has experienced incapacity for work as a result of psychological injury with the extent of that incapacity resulting in economic loss being 50% of the amount determined in accordance with s 37 Workers Compensation Act 1987 (1987 Act) namely $601.35 per week. 3. Award in favour of the applicant in respect of physical injury, namely injury to his lumbar spine and resulting incapacity for work as result of injury on 4 or 5 April 2020. 4. Since 15 February 2021 the applicant has experienced incapacity for work as a result of physical injury with the extent of that incapacity resulting in economic loss being 50% of the amount determined in accordance with s 37 of the 1987 Act, namely (a further) $601.35 per week. 5. General award in favour of the applicant in respect of s 60 expenses resulting from both physical and psychological injuries. 6. The matter is remitted to the President for referral to Medical Assessors to determine the extent of the applicant’s whole person impairment, if any, which results from: (a) injury to the applicant’s lumbar spine which occurred on or about 4 April 2020, and (b) psychological injury which occurred in the course of the applicant’s employment between 2017 and 27 August 2020. 7. The President’s delegate is requested to place before the Medical Assessors a copy of the documents mentioned in paragraph 10 and a copy of these Reasons for Decision. |
STATEMENT OF REASONS
BACKGROUND
Peter Djordjevic (the applicant) is a 59-year-old man who was employed by Blacktown City Council (the respondent) as a truck driver. He alleges and relies upon the nature and conditions of his employment up until 27 August 2020 as causing or materially contributing to psychological injury. In addition, he refers to a specific meeting on 27 August 2020 saying that he was exposed to bullying and harassment resulting in psychological injury. Further, he says on 4 or 5 April 2020 he suffered injury to his lumbar spine in the course of his employment.
The applicant was away from work after 27 August 2020. Unhelpfully, the Reply does not include a list of payments made but it can be seen from one of the respondent’s s 78 notices that liability for alleged psychological injury was declined as from 15 February 2021.[1]
[1] Reply at page 10.
The applicant makes a claim for weekly payments of compensation from 15 February 2021 to date and continuing with agreed pre-injury average weekly earnings (PIAWE) of $1,503.36 per week.
Whilst the respondent does not specifically take issue with liability in respect of the applicant’s lumbar spine injury, its submissions[2] deal with the applicant’s capacity to earn during various periods.
[2] Respondent’s submission dated 10 November 2022 at [28] ff.
The applicant also includes claims in respect of medical expenses pursuant to s 60 and for lump sum compensation pursuant to s 66.
ISSUES
The issues before the Personal Injury Commission (Commission) appear to be as follows:
(a) Was the accepted claim for psychological injury from 2018 and subsequently to the point where the applicant could return to full time work as at 8 April 2020 so that it was only after the 27 August 2020 meeting that the applicant’s incapacity in respect of psychological injury occurred?
(b) If so, what is the effect of the 27 August 2020 meeting in terms of the respondent’s defence under s 11A of the 1987 Act?
(c) If s 11A of the 1987 Act is not established by the respondent, do the applicant’s activities after 27 August 2020 demonstrate contradicting symptoms reported by the applicant both generally and to his treating doctors?
(d) In respect of the lumbar spine claim, taking into account various assessments of vocational capacity to earn, to what extent does the applicant have any economic incapacity, if at all?
(e) To what extent is the applicant entitled to claim two separate awards in respect of two separate incapacities, namely in relation to the lumbar spine and psychological injury?
(f) To what extent should s 60 of the 1987 Act expenses be awarded in respect of the applicant’s two separate injuries?
PROCEDURE BEFORE THE COMMISSION
This matter came for conciliation and arbitration hearing on 6 October 2022 by audiovisual link. Mr McManamey of counsel instructed by Ms Elmasri, solicitor, appeared for and with the applicant. Mr Dodd of counsel instructed by Ms Kaur, solicitor, appeared for the respondent.
The parties participated in a conciliation process in an attempt to achieve resolution of the matter. Regrettably, despite the exercise of my best endeavours, the matter was not capable of resolution. I was satisfied in the circumstances that the matter could not be settled and that jurisdiction to determine the matter by arbitration process was enlivened.
Much of the time on 6 October 2022 was taken in pursuing the conciliation process. The time available was insufficient to determine the matter and therefore I the parties were directed to provide written submissions.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute lodged 12 July 2022 and attachments (Application);
(b) Reply and attachments lodged 3 August 2022 (Reply);
(c) Application to Admit Late Documents lodged by the respondent on 27 September 2022 (AALD 1), and
(d) Application to Admit Late Documents lodged by the applicant on 30 September 2022 (AALD 2).
In addition, the following written submissions were received and considered.
(a) by the applicant dated 27 October 2022;
(b) by the respondent dated 10 November 2022;
(c) submissions in reply by the applicant dated 16 November 2022, and
(d) further submissions by the respondent dated 21 November 2022.
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASONS
The episode of psychological injury
This episode of injury is not disputed by the respondent. However, it is relevant to consider it in some detail because the respondent attributes the applicant’s psychological injury (if any) to a specific meeting on 27 August 2020.
Dr Chandra has reported that the applicant first complained to him of his mental condition on 22 March 2018.[3] That complaint was in response to acute stress caused by harassment by his supervisor. He was certified unfit for work until 13 April 2018 and was then seen by psychologist Dr Sze on 2 May 2018.
[3] Dr Chandra report dated 11 March 2021 at Application at page 112.
In a report dated 3 April 2021[4] Dr Sze records numerous consultations throughout 2018 (16 consultations), 2019 (11 consultations), 2020 (about 17 consultations) and 2021 (4 consultations). The last recorded consultation was 17 March 2021 which of course is about 17 days before the date of this report.
[4] Application at page 102.
Dr Sze recorded a consistent complaint on 2 May 2018 of intimidating behaviours by his supervisor for a long duration. The applicant complained of covert surveillance at his house, that he made a complaint to senior management and human resources, but “perceived that the matter was dealt with in a dismissive manner, and that he believed the internal investigation lacked impartiality”.[5]
[5] Application at page 104.
Dr Sze records that he saw the applicant whilst the applicant was still receiving care from Dr Howpage.[6]
[6] Application at page 105.
There does not appear to be any report from Dr Howpage. There is however a referral by Dr Chandra to Dr Howpage dated 17 February 2021.[7] Neither the applicant’s nor the respondent’s submissions mention the relevance of anything said or done by Dr Howpage so I infer that any such action or inaction is of little relevance. In any event, if it relates to 2021 it is outside the context of the reasons currently being expressed concerning 2018 to 2020.
[7] Application at page 273.
The frequency of the consultations with Dr Sze from 2 May 2018 until 17 March 2021 demonstrates an ongoing problem for the applicant with his psychological condition during that period.
The Commission has before it the consultation notes of Dr Sze. They confirm that[8] there were ongoing consultations in 2019 concerning a progressive increase in the applicant’s return to work but also on certain visits[9] ongoing bullying behaviours at meetings and the applicant’s perception that accusations were being made “to get rid of him”. There was an “emotional ventilation” by the applicant at consultation with Dr Sze on 24 July 2019 such that the applicant was to have a meeting with the “commission of industrial relation”.[10] Again, on 4 September 2019 there was a perception that the work environment was hostile[11] and further consultations to the end of 2019 and January 2020[12] where the applicant was upset that he was called to a meeting where the human relations department revealed to others that the applicant was on a mental health care plan.
[8] Application at pages 276 ff.
[9] For example, 26 June 2019. See Application at page 277.
[10] Application at page 277.
[11] Application at page 278.
[12] Consultation dated 15 January 2020 at Application at page 278.
The applicant was upset about the mental health plan and felt “unrespected”.[13] However, by 11 March 2020 he was “feeling good”.[14] The next entry with Dr Sze is 8 April 2020 when the applicant was “stressed as he was stood down without pay”.[15]
[13] Surgery consultation of Dr Sze dated 12 February 2020 at Application at page 279.
[14] Consultation record of Dr Sze dated 11 March 2020 at Application at page 279.
[15] Surgery Consultation of Dr Sze dated 8 April 2020 at Application at page 279.
It is clear that in the time leading up to the applicant’s lower back injury on 4 or 5 April 2020 the applicant suffered psychological injury. However, the applicant returned to work on 8 April 2020 in circumstances where Dr Sze considered that from a psychological viewpoint the applicant could return to some work.
Between 22 April 2020 and 15 July 2020 Dr Chandra[16] records attendances for low back problems. I accept the respondent’s submission that it was “only after a meeting that occurred on 27 August 2020 that the applicant went off work again”.[17]
[16] Application at pages 114-115.
[17] Respondent’s submissions at [9].
The lumbar spine injury of 5 April 2020
The applicant in his statement[18] confirms that he was emptying a 140 litre bin when he twisted his back on 4 April 2020. He was certified unfit to work from 4 April 2020, liability was accepted, and he underwent physiotherapy and hydrotherapy.
[18] Application at page 9 at [49].
The applicant commenced a gradual return to work with restrictions in about July or August 2020.[19] He resumed work two days per week performing normal duties with lifting restrictions. It seems reasonably clear that the applicant has not returned to work since 27 August 2020 but the cessation of that employment had more to do with his psychological condition, than any deterioration in his back condition.
[19] Application at page 9 at [52].
The applicant in his statement[20] refers to intimidation by his acting supervisor, Warren Wessel on 18 August 2020. Mr Wessel according to the applicant had a conversation with the applicant in the following terms:
WW: “It’s only a matter of time before we are going to F*** you off”.
A: “What?”
WW: “How do you think I got my job?”
[20] Application at page 9 at [53].
According to work colleague John Arnold, he was rostered to work with the applicant on 18 August 2020. According to Mr Wessel, he tried to contact the applicant but ultimately sent the applicant a text asking him to return to the depot to collect “blowers” (which I assume means garden leaf blowers).[21] The applicant evidently refused to return to the depot and Mr Wessel claims that the applicant had a long-standing grudge against him. Mr Wessel gives an entirely different account of the interchange and the subsequent discussion he had with the applicant.[22] Mr Arnold also refers to a conversation he had with the applicant afterwards in which the applicant was doing the swearing and adds:
“I can confirm that (the applicant) at the time was really agitated and fired up as he spoke to me. He gave the appearance that it would not take much to belt someone…”
[21] Reply at pages 63-64.
[22] See Application at page 65.
Whatever be the content of the interchanges between the applicant, Mr Wessel and Mr Arnold, it is clear from Mr Arnold’s statement that the applicant was considerably agitated on 18 August 2020, consistent with the continuity of symptoms arising at least from his perception of employment events.[23]
[23] Attorney Generals Department v K [2010] NSWWCCPD 76.
Dr Bisht
Dr Bisht has produced a number of reports at the request of the respondent’s solicitors. It is confirmed in Dr Bisht’s report of 6 January 2021 that the doctor had before him his earlier report of 13 June 2018, the clinical notes of Dr Chandra and file note prepared by Shanthi Silva dated 27 August 2020.[24] Regrettably, Dr Bisht’s report of 13 June 2018 is not in evidence and so a proper comparison of the doctor’s opinion between examination on 13 June 2018 and 6 January 2021 is not possible.
[24] Reply at page 20.
In any event, Dr Bisht had a fairly extensive history of the stressors affecting the applicant in 2017/2018 and then a return to 15 hours per week initially in June or July 2018 and subsequently claims being levelled against him. Dr Bisht was also mindful of the applicant’s history that he had been called to a meeting notwithstanding the employer had a certificate from the general practitioner certifying that the applicant should not have to meet with or have contact with people who harassed him.
Dr Bisht on 6 January 2021 diagnosed adjustment disorder with mixed anxious and depressed mood and opined that the applicant could work four hours per day, four days per week, but not with his pre-injury employer (i.e. the respondent).[25] Dr Bisht concluded that the applicant’s employment “has been the main contributing factor to the worsening of his pre-existing condition, which was also work-related”.[26] Dr Bisht thought the applicant “had been able to make good improvement from that pre-existing condition, though he had not fully recovered as he still was not able to work with the people who he felt bullied by…”.[27]
[25] Reply at page 25.
[26] Reply at page 26.
[27] Reply at page 26.
In a further report of 15 December 2021[28] Dr Bisht acknowledges that the applicant had developed a psychiatric condition “in 2017 and 2018 from which he had not fully recovered”. It would appear that Dr Bisht regarded the events of August 2020 as an exacerbation of the applicant’s continuing psychiatric condition from which the applicant had not fully recovered.
[28] Reply at page 38.
In the report of 15 December 2021[29] Dr Bisht comments concerning the applicant’s consultations with a psychologist regularly for the last three years and expresses the view in terms of incapacity that the applicant could work from home one to two hours per day, two to three days per week.
[29] Reply at page 38.
Although Dr Bisht infers that the meeting of 27 August 2020 was of some significance in terms of causation, it is clear from an overall reading of his reports that Dr Bisht accepts that the applicant’s psychological problems had been occurring over three years.
I accept the applicant’s submission[30] that because the meeting in August 2020 was an exacerbation of an existing psychological condition, the condition following that meeting and resulting incapacity results from the earlier injury.[31]
[30] Applicant’s submissions at [22].
[31] Secretary New South Wales Department of Education v Johnson [2019] NSWCA 321; Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49.
Dr Rastogi
Dr Rastogi saw the applicant in May 2021 and recorded a history of the applicant’s stressors going back to 2018. He diagnosed a chronic adjustment disorder with anxious distress caused by being watched and having complaints raised against him since 2018. Dr Rastogi considered the applicant had no capacity to work in the future.
Dr Assem
Dr Assem examined the applicant in May 2021 and having noted an MRI scan of 5 June 2020 which showed shallow posterior disc displacement of L4/5 and L5/S1 regarded the applicant permanently unfit for his pre-injury duties but capable of performing suitable duties at restricted hours and with restrictions.
Dr Shahzad
Dr Shahzad saw the applicant at the request of the respondent on 28 October 2020. On examination Dr Shahzad saw tenderness, muscle guarding, limits on extension and flexion and limited lateral rotation.[32]
[32] Reply at page 40.
On the date of Dr Shahzad’s examination, the applicant had been certified able to work normal hours per day, two days per week with restrictions. Dr Shahzad thought the applicant was fit for suitable duties but did not expand upon what those duties might involve. This is important because of the applicant’s history of working in employment which requires physical capability.
The vocational assessments
Mr Girdler assessed the applicant and has provided a report dated 13 April 2021. He noted that the worker’s work history was as a fitter machinist, roofing plumber and mobile plant operator before he commenced work with the respondent. The applicant’s work experience has all been of a heavy physical nature and Mr Girdler could only consider the applicant able to perform light work or work of a sedentary nature.
Earlier, the respondent had the applicant assessed by Mr Bass. Whilst Mr Bass identified various driving work and earth moving plant operation and the like, it is clear that all of these employments would require the applicant to sit for long periods or engage in activities such as lifting and bending. Accordingly, I take the view that Mr Bass’ opinion is overly optimistic. Additionally, I accept the applicant’s submission that because Mr Bass is a psychologist, he is not qualified to assess whether the employment he suggests is consistent with the applicant’s physical limitations.[33]
[33] Applicant’s submission at [43].
Section 11A
The respondent has submitted that the applicant’s psychological condition after 27 August 2020 “was predominately caused by the actions of the respondent in conducting the meeting of 27 August 2020 and then suspending the applicant on 8 September 2020 due to him not responding to the allegations”.[34]
[34] Respondent’s submissions at [18].
The respondent points to Dr Bisht’s report[35] and says that the applicant’s psychological health deteriorated in the context of performance management and disciplinary actions.[36] However, in Dr Bisht’s earlier report dated 6 January 2021 he concludes:[37]
“Based on the available information and the history provided by the worker, his current condition was predominately caused by action taken, or proposed to be taken, by Blacktown City Council in respect of matters in relation to possible discipline of the worker.
He had a pre-existing condition, which was also work-related. He had been able to make good improvement from that pre-existing condition, though he had not fully recovered. This pre-existing condition therefore has a minor contribution to his current condition.”
[35] Report dated 15 December 2021 at Reply at page 38.
[36] Respondent’s submissions at [19].
[37] Reply at page 28.
Dr Bisht’s opinion is devoid of any detailed comparison between the significance of the 2017/2018 events and the 27 August 2020 meeting. Dr Bisht does not however conclude that the meeting of 27 August 2020 caused any new injury or psychological condition. Because he accepts that the applicant’s current condition is an exacerbation of a pre-existing work-related injury, I accept that he believes that the pre-existing condition materially contributed to the applicant’s psychological condition.
Dr Bisht’s opinion is in any event contrary to the other medical evidence. In his report of 6 January 2021 he records the applicant’s various stressors in 2017 and 2018 but then does not consider the extent of the pre-existing condition in this context. Dr Bisht did not have before him the notes from Dr Sze nor the histories from Dr Sze concerning the several consultations Dr Sze had with the applicant through 2018-2020. For these reasons I am unable to accept Dr Bisht’s opinion.
Reasonable action
If I am wrong about the applicant’s condition being predominately caused by the respondent’s action, that action must be considered to determine whether it was reasonable action.[38] The investigation report commissioned by the respondent[39] comes much later than the meeting of 27 August 2020 and does not include any interview or approach made to the applicant with the investigator simply saying[40] “your office is aware of the circumstances surrounding Djordjevic not being interviewed”. The point to be made is that the investigation report has not given the applicant the benefit of any reply and so it is necessary to consider what happened between 18 August 2020 and 27 August 2020.
[38] Section 11A of the Workers Compensation Act 1987 (1987 Act).
[39] Farrell’s Investigative Services dated 30 January 2021 at Reply at page 63.
[40] Reply at page 63.
The applicant in his statement makes a number of points which are relevant to the reasonableness or otherwise of the action taken on 27 August 2020. At paragraph 54[41] the applicant refers to the request for him to attend a meeting “in particular the incident that occurred on 18 August 2020 I understand an external investigator was engaged to investigate this issue where Warren produced a statement raising new allegations against me…”. It is unclear whether “the external investigator” was Farrell’s Investigative Services because the report of those investigators was dated 30 January 2021. There is no information from the respondent concerning what happened between 18 August 2020 and 27 August 2020, yet at the meeting the applicant says that Warren Wessel raised new allegations before and during the meeting. In fact, the applicant says that Rick Wiesal at the meeting read out Warren’s allegations.[42] It follows I infer that the applicant had not been informed of the “new allegations” before the 27 August 2020 meeting.
[41] Application at page 9.
[42] Applicant’s statement at [55] at Application at page 9.
Accepting as I do the applicant’s account of fresh allegations having been raised at the 27 August 2020 meeting, I am of the view that in the absence of some prior forewarning of these allegations, it was unreasonable for the respondent to put the applicant “on the spot” in a meeting in circumstances where he had not been earlier told of the specific allegations. That, to my mind, is not fair and hence not reasonable action within s 11A of the 1987 Act.
Two separate awards?
The respondent’s submissions include[43] that s 37 of the 1987 Act “does not enable a worker to be compensated twice if they are incapacitated at work as a result of two injuries”.
[43] Respondent’s submissions at [38].
After reviewing several authorities in Cordina[44] Roche DP summarised the authorities as follows:
(a) a worker who has received two injuries that have resulted in two separate and distinct incapacities may, in the appropriate case, supported by relevant evidence, recover two concurrent awards of weekly compensation regardless of whether the second injury has resulted in total or partial incapacity (Doudie, Holmes and Ince);
(b) the two injuries do not have to be received with different employers in order for the worker to be entitled to two awards (Ince at 701D and Holmes at 592);
(c) whilst a finding of a total incapacity, subsequent to a finding of partial incapacity, will not eliminate the liability for the initial partial incapacity, the calculation of compensation payable under section 40 for the initial partial incapacity calls for the application of the discretion in section 40(1) (Holmes at 592) in determining the amount of compensation that is “proper in the circumstances of the case” (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50). The proper application of the discretion in such a case (where the subsequent incapacity is total) may well result in the award for the initial partial incapacity being reduced to a nominal amount because the subsequent total incapacity will have eliminated the workers ability to earn in any event. The exercise of the discretion may also be relevant in a situation where the subsequent incapacity is partial, but the precise impact on the initial partial incapacity will depend on the facts of the particular case, and
(d) an entitlement to two awards is subject to the following limit on the quantum of compensation that may be awarded. The combined compensation under the two awards, plus the worker’s residual earning capacity, must not exceed the amount the worker would have earned had he or she remained uninjured (Alcan Australia Ltd v Jordan (1995) 11 NSWCCR 475 at 482E (‘Jordan’)). This does not offend section 40(5) of the 1987 Act, which restricts the compensation payable for “any period of partial incapacity” as a result of an injury (see section 33 of the 1987 Act) but says nothing about the quantum of compensation payable in respect of multiple awards resulting from multiple injuries.
[44] Cordina Chicken Farms Pty Limited v Thoa Hong [2008] NSWWCCPD 125.
The authorities mentioned in 50 (c) above may be put to one side for present purposes because the discretion no longer exists. I accept that in this matter the applicant suffers from two incapacitating conditions, namely a psychological condition and a physical injury to his lower lumbar spine. I have examined each of those conditions from a chronological viewpoint because that then enables the determination of any weekly payment entitlement in the context of the applicant working (normal duties and selective duties) and not working over the relevant period of time.
Roche DP’s reference [paragraph 50 (d) above] to the limit on the maximum amount of compensation payable is that “the combined compensation…must not exceed the amount the worker would have earned had he or she remained uninjured” seeks support from Jordan[45]. That decision expressed the view, as I understand it, that weekly compensation cannot result in a worker being in the result better off financially than if he or she had been uninjured. This principle of over-compensation followed a decision of Kitto J in Thompson[46], in which his Honour referred to s 11 of the 1926 Act. However, both ss 36 and 37 of the 1987 Act provide statutory commands as to the calculation of the “maximum weekly compensation amount”[47]. That relies on an interpretation for “AWE” in accordance with s 35 (1) of the 1987 Act, namely the worker’s pre-injury average weekly earnings.
[45] Alcan Australia Limited v Jordan (1995) 11 NSWCCR 475 at 482.
[46] Thompson v Armstrong & Royce Pty Limited (1950) 81 CLR 585 at 623.
[47] As defined by s 35 1987 Act.
The medical evidence in general supports injury to the lumbar spine and resulting incapacity from 5 April 2020 and continuing. Although there is unfortunately no list of payments I have included reference to the respondent’s s 78 notice[48] which is consistent with payments being made in respect of psychological injury up until 15 February 2021, consistent with the period claimed in the Application.
[48] Reply at page 10.
I have referred above to the medical evidence supporting ongoing psychological injury and incapacity after 15 February 2021. The agreed PIAWE is $1,503.30 per week and 80% of that amount is $1,202.69. That figure will in my view be the limit of the applicant’s entitlement pursuant to s 37 from 15 February 2021.
As earlier recorded, relevant medical and vocational evidence regarding the applicant’s capacity is as follows:
(a) Dr Shahzad on examining the applicant on 28 October 2020 thought the applicant able to work normal hours per day, two days per week with restrictions.
(b) Mr Girdler in his report of 13 April 2021 thought that only light work or sedentary work could be performed because of the applicant’s orthopaedic injuries.
(c) Dr Assem in May 2021 thought the applicant permanently unfit for his pre-injury duties but capable of performing suitable duties.
(d) Dr Rastogi in May 2021 in the context of psychological injury considered the applicant to have no capacity for work.
(e) Dr Bisht on 6 January 2021 thought the applicant could work four hours per day, four days per week, but not with the respondent.
(f) Dr Sze was still seeing the applicant as at 17 March 2021 and it was on 17 February 2021 that Dr Chandra referred the applicant to Dr Howpage.
I am satisfied that as at 15 February 2021 the applicant was presenting with two incapacities resulting from two separate injuries, namely psychological injury attributable to work events up to and including 27 August 2020 and physical injury namely injury to the lumbar spine resulting from an event which occurred on 4 or 5 April 2020. The respective contributions of those two incapacities in my view are close to equal. Whilst some of the doctors suggest some limited capacity, they do so in the context of their own specialties and not in terms of the aggregate of both incapacities. I am satisfied that in the aggregate due to the combination of both injuries and the applicant’s experience in only heavy physical work, he effectively has had no capacity for work from 15 February 2021.
The parties submissions in reply
There has been some dispute concerning certain entries in the applicant’s bank accounts, in particular entries which it has been suggested by the respondent[49] are evidence of some capacity on the part of the applicant. The entries relate to attendances at hotels and the applicant’s receipt of regular small amounts ($10) concerning “punters club”. I believe it is common knowledge that “punters clubs” involve participants regularly contributing funds to a joint fund held by/ banked by one person who places bets on certain races, whether that be the whole or a proportion of the funds. That to my mind does not demonstrate any significant capacity, nor does the fact that the applicant may be able to attend hotels from time to time.
[49] Respondent’s further submissions dated 21 November 2022 at [3].
FINDINGS AND ORDERS
Award in favour of the applicant against the respondent in respect of psychological injury which occurred as a result of work events between 2017 and 27 August 2020.
Since 15 February 2021 the applicant has experienced incapacity for work as a result of psychological injury with the extent of that economic loss resulting from incapacity being 50% of the amount determined in accordance with s 37 of the 1987 Act, namely $601.35 per week.
Award in favour of the applicant in respect of physical injury, namely injury to his lumbar spine and resulting incapacity for work as result of injury on 4 or 5 April 2020.
Since 15 February 2021 the applicant has experienced incapacity for work as a result of physical injury with the extent of that economic loss resulting from incapacity being 50% of the amount determined in accordance with s 37 of thee 1987 Act, namely $601.35 per week.
General award in favour of the applicant in respect of s 60 expenses resulting from both physical and psychological injuries.
The matter is remitted to the President for referral to Medical Assessors to determine the extent of the applicant’s whole person impairment, if any, which results from:
(c) injury to the applicant’s lumbar spine which occurred on or about 4 April 2020, and
(d) psychological injury which occurred in the course of the applicant’s employment between 2017 and 27 August 2020.
The President’s delegate is required to place before the Medical Assessors a copy of the documents mentioned in paragraph 10 of these Reasons and a copy of these reasons for Decision.
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