Gready v Ricegrowers Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gready v Ricegrowers Limited [2022] NSWPIC 438
APPLICANT:	Paige Gready
RESPONDENT:	Ricegrowers Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	4 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits on the basis of no current work capacity; voluntary payments of weekly payments being made at a rate agreed in prior proceedings; subsequent downgrade in certificates of capacity; evidence of ongoing symptoms at left knee and right hip; suitable employment pursuant to section 32A of the Workers Compensation Act 1987; relevance of geographical labour market; Held — applicant remained unfit for pre-injury duties and other physical work; evidence of capacity to work in light sedentary duties; Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer and Wollongong Nursing Home Pty Ltd v Dewar applied; evidence of real jobs in which the applicant would be able to work; Commission not satisfied that applicant had no current work capacity; the Commission declined to make the orders sought by the applicant.
DETERMINATIONS MADE:	The Commission declines to award weekly compensation pursuant to s 37(1) of the Workers Compensation Act 1987 from 4 March 2022 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

Ms Paige Gready (the applicant) was employed by Ricegrowers Limited (the respondent) as a machinery operator. On 18 September 2020, the applicant sustained an injury at work when she tripped and fell. Liability for the injury is not presently in dispute.
The applicant returned to work for a period of time, performing light duties, before ceasing work on 19 February 2021.
In previous proceedings before the Personal Injury Commission (the Commission)[1], agreement was reached between the parties that the respondent would pay the applicant weekly compensation on a voluntary basis from 6 August 2021, on an ongoing basis, at the rate of $750 per week.
[1] W4357/21.
On 4 March 2022, the applicant’s general practitioner, Dr Paul Wang, issued a certificate downgrading the applicant’s work capacity to nil. The applicant, through her solicitor, made a claim on 28 March 2022 for weekly benefits to be paid at a higher rate. The applicant claimed that she should be paid 80% of her agreed pre-injury average weekly earnings (PIAWE) rate of $1,530, as indexed, in accordance with s 37(1) of the Workers Compensation Act 1987 (the 1987 Act).
The applicant’s claim was not determined within the statutory time limit and, on 6 May 2022, the present proceedings were commenced by an Application to Resolve as Dispute (ARD).
The applicant seeks weekly compensation from 4 March 2022 in accordance with s 37(1) of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 19 July 2022 via Microsoft Teams. The applicant was represented by Mr Luke Morgan of counsel, instructed by Mr Nayven Taouk. The respondent was represented by Mr Paul Rickard of counsel, instructed by Mr Michael Lee. A representative from the insurer was also present.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant is entitled to weekly compensation pursuant to s 37(1) of the 1987 Act in the period from 4 March 2022 to date and continuing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late documents lodged by the respondent on 20 June 2022;
(d)    documents attached to an Application to Admit Late documents lodged by the respondent on 23 June 2022;
(e)    documents attached to an Application to Admit Late documents lodged by the applicant on 11 July 2022; and
(f)    documents attached to an Application to Admit Late documents lodged by the applicant on 19 July 2022.[2]
[2] Admission of a report prepared by Dr Tony Antoun lodged under cover of an Application to Admit Late documents by the respondent on 19 July 2022 was declined at the arbitration hearing for reasons given orally and recorded.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on
10 September 2021, 6 May 2022 and 8 July 2022.
The applicant, who is currently 20 years old, said she completed her Year 12 education then commenced employment with the respondent as a machinery operator on 20 March 2020.
Other than an injury to her left arm when she was about nine years old, the applicant was healthy and capable prior to the work injury.
The applicant stated that on 18 September 2020, she was walking, carrying boxes when she lost balance and her left leg gave way, causing her to trip and fall to the ground. The applicant dropped the boxes and reached out with both hands to break her fall. The applicant landed on her left knee and right leg. The applicant felt immediate pain in her neck, back and both knees. The pain in her left knee was significantly worse than the pain in her right knee.
The applicant attempted to continue working, however, her pain was unbearable. The applicant went home and the next morning her pain was worse. The applicant returned to work to discuss the incident with her supervisor and a consultation with Dr Danny Tang was arranged via telehealth.
The applicant was referred by Dr Tang for physiotherapy and X-ray investigations. The applicant was advised to take anti-inflammatory medication and to avoid lifting, pushing, standing, sitting and bending.
The applicant commenced physiotherapy and undertook a home exercise program. These did not help in alleviating the applicant’s pain.
The applicant was referred for an MRI of her cervical spine on 12 October 2020 which did not reveal any significant abnormalities.
An MRI of the applicant’s left knee on 9 November 2020 revealed no significant abnormalities. The MRI was reviewed by sports physician Dr Karen Bisley who said there was in fact an issue with the knee. A further MRI performed on 25 February 2021 revealed a very subtle tear in the medial meniscus and proximal patella tendinosis.
The applicant found it very difficult to walk normally and the pain in her neck, back and both knees made it uncomfortable to move. The applicant’s left knee did not feel stable and the applicant was afraid that using it would cause it to get worse. The applicant began weight-bearing more on her right leg and walked with an antalgic gait. The applicant began to experience increased symptoms in her lower back and reported the symptoms to Dr Tang on 14 December 2020. The applicant also began to experience symptoms in her right hip which she complained of to her physiotherapist and exercise physiologist.
The applicant was referred to orthopaedic surgeon, Dr Rob Creer who confirmed that the applicant suffered from a medial meniscus tear in the left knee. Dr Creer performed an arthroscopy on 21 April 2021. Following the surgery, the applicant used crutches for about six weeks and was advised to undergo physiotherapy and exercise physiology.
Following the surgery, the applicant’s left knee was very unstable. The symptoms in the applicant’s lower back and right hip grew worse. The applicant also began to experience pins and needles in her left and right arms.
In about mid-May 2021, the applicant had a fall at home when her left knee became weak and gave way. The applicant landed on her hands and left side and felt immediate pain in her lower back, neck and left knee. The applicant also experienced headaches.
A few days later, the applicant had another fall outside her house as her left knee gave way again. The applicant felt immediate pain in her right hip, back and left knee.
The applicant was referred for MRI scans of her hip and right knee on 28 May 2021.
The applicant’s pre-injury duties included monitoring a rice feeder by standing and pushing rice down in order for the machine to package it into pouches. This involved extensive periods of standing and the applicant was not able to sit in order to undertake these tasks.
Following the injury, the applicant worked on restricted duties and was responsible for unloading the pouches. The applicant worked at a much slower pace and would often be wary of her symptoms. The applicant experienced fatigue and an exacerbation of symptoms at the left knee, right hip and back at the end of the shift. The applicant’s last day of work for the respondent was 19 February 2021.
Despite being certified fit to work six hours per day for three days per week, the applicant did not feel as though she was fit to work. Dr Tang said he had felt pressured by the applicant’s workers compensation case manager to certify those hours.
Prior to her employment with the respondent, the applicant had worked in two low skilled jobs. The applicant worked as a part-time horse groomer for about two months in 2019. In 2020, the applicant worked as a kitchen hand and delivery driver.
In her second statement, the applicant stated that she had been certified as fit for light duties at three hours per day, two days per week until 6 January 2022. The applicant found it difficult to secure employment with an employer that would accommodate her hours. The applicant lived in a small town with a scarcity of job options.
The applicant saw Dr Bisley on or around 11 February 2022 and complained of ongoing pain and symptoms. Dr Bisley advised the applicant not to return to work until further investigations were undertaken. The applicant was referred for an MRI scan of her left knee. In line with Dr Bisley’s advice, Dr Wang downgraded the applicant’s certification to nil.
The applicant returned to see Dr Bisley on or around 15 March 2022 and was given a cortisone injection, which did not provide any relief at all.
Following a further review, at which the applicant’s symptoms were persisting, on or around 24 April 2022, the applicant was referred back to see Dr Creer.
The applicant said she was unable to return to her pre-injury duties and other forms of employment were also unreasonable and unsuitable at present.
On or around 31 January 2021, the applicant had made enquiries about employment at a local hotel. The applicant’s duties would have required her to stand for long periods of time and walk on surfaces that could be slippery. The work involved a lot of walking. It was clear to the applicant that she was unfit to undertake these duties.
The applicant said there were times when her pain was so severe that she struggled to sleep and get a good night’s rest. Even basic tasks, such as standing for periods longer than about 10 minutes, caused discomfort and pain. The applicant also noticed pain symptoms developing when walking for too long.
The applicant said she was still able to drive but struggled getting in and out of vehicles due to the awkward manoeuvres causing pain and discomfort in her right hip.
The applicant struggled with domestic duties such as food preparation, cooking and cleaning.
Prior to the injury, one of the applicant’s hobbies was horse riding. Following the injury, on occasions when she attempted to ride a horse, the applicant noticed that her pain and symptoms would flare in her right hip and knee. The applicant now avoided horse riding.
In her final statement, the applicant disclosed that she had attended equestrian events in October and November 2020 as well as an event on 4 July 2021.
The applicant had spoken to her general practitioner, Dr Tang about the horse riding events. Dr Tang advised the applicant to prioritise remaining active to avoid muscle wastage. As a result, the applicant decided to register and compete in the events in October and
November 2020 as she believed remaining active would improve her condition.
In the lead up to the events, the applicant’s pain and symptoms forced her to reduce the number of times she trained. To cope, the applicant was forced to rely on pain medication. It was clear that the applicant was not the same rider she used to be. During the events, the applicant struggled and her pain symptoms were temporarily exacerbated.
The applicant would continue to ride on rare occasions to get out of the house and fill in time. Following the event on 4 July 2021, the applicant avoided horse riding completely. The applicant no longer wanted to risk her injuries and it was clear that her capacity for horse riding and competing would never return.

Treating medical evidence

The applicant underwent X-rays of her left knee, cervical and thoracic spine on
21 September 2020. It was noted that the applicant had a fall at work and had pain in her neck, upper back and left knee. The investigations of the left knee showed no recent fracture or dislocation of the bones of the left knee. There was minimal lateral tilting of the patella.
An MRI of the cervical spine performed on 12 October 2020 was reported to reveal no significant abnormalities.
An MRI of the left knee on 9 November 2020 was reported to show no significant abnormalities.
On 3 February 2021, sports and exercise physician, Dr Karen Bisley referred the applicant to orthopaedic surgeon, Dr Rob Creer. Dr Bisley gave a history as follows,
“She injured her left knee on 18 September, 2020. She had been working on a factory line and was going to have a break. She was walking through a door, where there was a step. She stepped with her right leg, but something happened to her left as she tripped and fell to the ground landing on her hands and feet. She sustained a whiplash injury which has mostly settled with physiotherapy. However, she has had ongoing discomfort and pain in the left knee. Initially she had significant pain to twist and had clicking. She has significant pain to straighten her knee. She has pain in and through medial, patellar, and supra-lateral regions.”
In a report, dated 26 February 2021, Dr Creer reported to Dr Bisley that the applicant had a torn medial meniscus which was causing some pseudo-locking of her knee. Since the injury at work, the applicant had pain and swelling and reduced range of motion in the knee associated with a feeling of instability. Dr Creer discussed undergoing an arthroscopy.
An MRI of the lumbar spine performed on 18 March 2021 was reported to show no significant disc pathology.
On 22 March 2021, Dr Creer prepared a report for the respondent’s insurer with regard to the proposed surgery. Dr Creer suggested that the applicant should be able to start to return to some of her work duties after at least two to three weeks of physiotherapy. It might take up to six weeks to get the applicant back to her pre-injury work.
On 30 April 2021, Dr Creer reported that he had performed an arthroscopic partial meniscectomy to the applicant’s left knee. The applicant had a complex tear of the anterior horn of the medial meniscus with a horizontal cleavage tear and fraying. Dr Creer recommended that the applicant start walking with crutches and partial weight-bearing and undergo an aggressive rehabilitation program. Dr Creer anticipated that the applicant should be able to get back to playing sport within about six weeks.
An MRI of the applicant’s right hip and right knee was performed on 28 May 2021. At the right hip, there was a non-displaced non-inflamed tear of the anterior labrum. The study was otherwise normal.
A further MRI of the right hip was performed on 25 November 2021, which again was reported to show a small labral tear.
An MRI of the left knee was performed on 10 December 2021. The referral notes indicated that the applicant was unable to extend her knee and it was clinically locked. The report noted a very subtle tear in the medial meniscus and proximal patella tendinosis.
A senior rehabilitation consultant from WorkFocus Australia wrote to Dr Bisley on
9 February 2022 in relation to developing a vocational goal and return to work plan. Dr Bisley was asked to complete a questionnaire, which she did on 11 February 2022. Asked for a diagnosis, Dr Bisley said that when she first saw the applicant she had a locked knee which led to surgery. The applicant did not undergo post-operative rehabilitation for her hip or knee. The applicant had “complex regional pain syndrome” at the left knee and a markedly weak lateral hip. Dr Bisley indicated that the applicant was unfit for work, “unless light sedentary work available”.
On 14 February 2022, Dr Bisley reported that she had seen the applicant again. Dr Bisley recorded that the applicant continued to have pain and had a giving way sensation in the knee. On two occasions, the applicant had fallen to the ground. At times the applicant had a snapping sensation in her knee when she bent it. The applicant also reported an ache and pins and needles around the patella and inferior patella. The applicant was unable to go up and down stairs and had to use one leg at a time. The applicant found slopes hard to ascend and descend. The applicant was noticing pain in the right hip after surgery and clicking in the right hip.
Dr Bisley arranged a repeat MRI and commented that clinically, the applicant had been rehabbed poorly. Dr Bisley was concerned that the applicant may have another tear.
Dr Bisley said,
“I wouldn’t be returning her to work until we get to the bottom of what’s going on.”
Dr Bisley responded to a further questionnaire on 4 March 2022. Dr Bisley indicated that it was “unknown” when the applicant was able to return to work on suitable duties or what the applicant’s restrictions were. Dr Bisley indicated that she was waiting for an MRI.
On 15 March 2022, Dr Bisley noted that the applicant’s MRI was reported as normal although Dr Bisley was not in complete agreement. Dr Bisley suspected the applicant was developing some arthrofibrosis. The applicant also had a large fat pad. Dr Bisley had discussed the applicant’s case with Dr Creer and he also thought the applicant may have some arthrofibrosis. The applicant was given an injection to the left knee joint.
The applicant was seen by Dr Creer on 26 May 2022. The applicant’s current symptoms at her left knee were described as follows:
“The pain is constant, worse with weightbearing activities, especially squatting and kneeling. There is pain at night which will keep her awake. It is unstable and apparently has given way on two occasions. She did have grating for 1 day after the operation, but this has not been a feature since. The knee is intermittently stiff and she gets small swelling. She feels she walks with a limp. It is affecting her activity levels. When the pain is bad at night, she takes a Tramadol tablet. She intermittently uses anti-inflammatory tablets (1 to 2 a week). She had the cortisone injection with yourself a few months ago without any noticeable difference.”
Dr Creer’s examination noted slight wasting and slight tenderness in the medial retropatellar surface. Dr Creer commented on the most recent MRI and stated:
“Her MRI scan, at Image Associates in Wagga, shows that she may have some arthrofibrosis/scar tissue of the fat pad to the intercondylar notch region/the anterior horn of the medial meniscus at the site where she had the previous trimming.”
Dr Creer said he had referred the applicant for an ultrasound guided cortisone injection and local anaesthetic injection into the region of the scar tissue to see if this would relieve things.

Certificates of capacity

In the period of weekly compensation in issue, the applicant has been provided with SIRA certificates of capacity, issued by Dr Paul Wang, certifying the applicant as having no current work capacity. The certificates are blank with regard to diagnosis and causal relationship to work. The applicant’s treatment is described as “simple analgesia”. No estimate was provided for a return to employment, and no factors affecting recovery identified.

Vocational Assessment Report – Pinnacle Rehab

Attached to the Reply is a vocational assessment report prepared by Pinnacle Rehab, dated 5 March 2021. The report noted that the applicant had recently resigned from her pre-injury role and required assistance with identification of suitable vocational goals with a new employer.
The report identified vocational options including general clerk, customer service representative and warehouse administrator. The report noted that each of the three options was pending approval from Dr Tang but that the applicant had given verbal agreement on
2 March 2021 to the roles of general clerk and customer service representative.
The report noted that the applicant was preparing to undergo surgery.
At the time of the report, the applicant was certified as having capacity for some form of employment with the following restrictions:
“• No restrictions on hours per day, or days per week (Pre-injury hours are 38 hours per week)
• Lifting/carrying capacity: up to 6kgs
• Sitting tolerance: as tolerated
• Standing tolerance: as tolerated
• Pushing/pulling ability: pushing and pulling capacity of up to 8 kilograms
• Bending/twisting/squatting ability: avoid excessive use cervical spine and thoracic spin
• Driving ability: as tolerated”
The report noted that the applicant had expressed interest in roles as an administration assistant in the building industry as well as customer service and warehouse administration. Although the applicant had expressed interest in working as a waitress or as a sales assistant at a company such as Bunnings, these options were unsuitable due to the standing requirements.
The applicant’s previous employment history included two months’ work as a delivery/kitchen hand at a café and two months’ work as a part-time groomer whilst the applicant was completing her Higher School Certificate. The applicant had completed two one-month work placements at home improvement and building companies in 2018 and a one-month work placement as a childcare assistant. The applicant was noted to have experience with data management programs from her work with the respondent and experience using Microsoft Word, PowerPoint and Excel. The applicant had good computer skills.
The report described discussions with employers who had advertised administration officer, customer service representative and warehouse administrator roles. All three options were identified as suitable vocational options given the applicant’s transferable skills, qualifications and work history.
The identified barriers to return to work included the applicant’s upcoming knee surgery, location in a regional town and the smaller labour market, and current job detachment. The report recommended that the applicant commence weekly jobseeking training with a career coach.
On 6 March 2021, Dr Tang signed a document from Pinnacle Rehab confirming that the three vocational options identified were suitable for the applicant.

Dr Poplawski

The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr Zbigniew Poplawski, dated 17 August 2021, 7 September 2021 and 15 February 2022.
Dr Poplawski took a history of the injury and the subsequent treatment that was consistent with the applicant’s statement evidence. The applicant reported that post-operatively her knee was better than before, but not entirely normal and she continued to have problems in that there was a sensation of instability in the knee from time to time when walking. The applicant had two falls as a result of the knee giving way and sometime afterwards noted discomfort in her right hip. The applicant remained troubled with recurrent pain in the right hip and discomfort in the neck and back persisted.
Dr Poplawski recorded that the applicant had difficulty with sleep, on occasions, waking up with pain. Sitting was not a problem. The applicant could stand for five minutes before increasing discomfort at her right hip forced her to sit down. The applicant could generally walk 0.5 km. The applicant had difficulty squatting and could not kneel.
The applicant could drive an automatic vehicle for reasonable distances but had difficulty getting in and out of the car.
Dr Poplawski diagnosed a tear of the medial meniscus of the left knee, requiring arthroscopic surgery. The applicant had persistent instability of the left knee of uncertain aetiology and a labral tear in the right hip. Dr Poplawski diagnosed soft tissue injury to the cervical spine and lumbar spine. Dr Poplawski said the injuries to the applicant’s cervical spine and lower back had essentially settled. Dr Poplawski said he could find no evidence of a consequential condition of the lumbar spine due to an antalgic gait.
On examination, the applicant demonstrated a very mild limp. Dr Poplawski believed this should be investigated with a repeat MRI scan of the left knee. The applicant had described symptoms of pain in the right groin, which could be related to the labral tear described on MRI investigation. Dr Poplawski recommended a repeat MRI scan.
With regard to the applicant’s capacity to engage in her pre-injury duties, Dr Poplawski stated:
“She already has had two falls that she mentioned, as a result of the knee giving way and, in my opinion, she is not fit to resume any type of physical work because of the danger of further falls resulting in more injuries. In any event according to Ms Gready she is unable to tolerate sufficient time on her feet with standing or walking to manage any type of physical occupation at this stage.”
In his report of 7 September 2021, Dr Poplawski reiterated his previous views and stated that the applicant remained troubled with recurrent pain in the right hip, particularly on prolonged weight bearing and walking distances.
In his report, dated 15 February 2022, Dr Poplawski said he had re-examined the applicant by video consultation. The applicant’s symptoms had persisted since he last saw the applicant in August 2021. Dr Poplawski made an assessment of whole person impairment.

Dr Hughes

The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Lloyd Hughes, dated 2 July 2021, 12 July 2021, 6 June 2022 and 8 June 2022.
In his first report, Dr Hughes took a history of the injury on 18 September 2020, that was broadly consistent with the other evidence. Dr Hughes noted the subsequent treatment and investigations, including the arthroscopy and removal of a torn fragment of meniscus on
21 April 2021 by Dr Creer. The applicant’s present symptoms were described as follows:
“She feels there is still some restriction of movements in her left knee. She feels some pain in the knee in bed at times. She continues to experience some pain in her neck and back.”
Dr Hughes’ examination of the left knee revealed no effusion and full, painless movements. Cruciate and collateral ligaments were intact and there was no evidence of internal derangement. The quadriceps muscle was equal to the right quadriceps muscle. The applicant also had full and painless hip and neck movements.
Dr Hughes gave the opinion:
“Following arthroscopic partial meniscectomy, she has regained normal function in the left knee and there is no residual disability present. She is fit for her previous work and requires no treatment other than performing regular quadriceps muscle exercises in her own time at home as shown by the physiotherapist she attended. She requires no other treatment.
In relation to her neck, back and hip symptoms I can find no clinical evidence of any abnormality in these regions and in my opinion, she has not suffered from any injury to her back, neck, hip or right knee.”
Dr Hughes gave the opinion that the applicant was fit for normal work as a machine operator and had no incapacity due to any workplace injury.
In the report dated 12 July 2021, Dr Hughes noted that Dr Tang and the applicant had not agreed with Dr Hughes’ opinions. Dr Hughes confirmed that his examination included palpation of the knee and the only abnormality was slight tenderness over the medial joint line. Dr Hughes’ records noted that he observed the applicant walking in and out of the examination room without any limp. Dr Hughes indicated that his examination was appropriate and revealed a normal knee. Dr Hughes stated:
“I note that Dr Tang does not agree with the contents of my report. However, I note that Dr Tang has not carried out a physical examination of Miss Gready and all the reviews of Dr Tang have been carried out by Telehealth which does not include a physical examination. If he had carried out a clinical examination, he would have been able to confirm my clinical findings.”
In his report of 6 June 2022, Dr Hughes noted that he had re-examined the applicant on
24 May 2022.
The applicant reported that she continued to experience pain in the left knee and right hip when walking. The applicant also experienced pain in her lower back, worse when standing or sitting. The applicant also experienced significant pain at her neck and headaches. The applicant was due to see Dr Creer in two days’ time. Dr Hughes expressed the opinion:
“Clinical examination of the left knee now reveals no abnormality and no apparent cause for any continuing complaints.
As stated in my previous reports, Miss Gready has not sustained any injury to her back, neck, or right hip although an MRI reports on a small labral tear of the right hip of doubtful significance. Miss Gready in my opinion is fit to resume work and requires no further treatment apart from a regular quadriceps exercise program to strengthen her left quadriceps muscle.”
Dr Hughes was asked to comment on three identified alternative vocational options and stated:
“I have read the three identified potential alternate occupations in your letter, and I believe Ms Gready could perform these roles on a full-time basis.”
In his report dated 8 June 2022, Dr Hughes said the applicant was fit for pre-injury employment and employment generally. Dr Hughes denied that the applicant had any consequential conditions as a result of her injury and said the concept of a consequential injury was a fallacy and “unsupportable myth based on false reasoning”.

Applicant’s submissions

The applicant submitted that the dispute would be resolved by an analysis of what was required by s 32A of the 1987 Act in determining whether there was suitable employment.
The applicant referred to the discussion by Snell DP in Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer[3] and the decision by Roche DP in Wollongong Nursing Home Pty Ltd v Dewar[4] and submitted that it was necessary to consider whether there were any “real jobs” in the labour market in which the applicant would be able to work.
[3] [2020] NSWWCCPD 36 (Gradan Bathrooms).
[4] [2014] NSWWCCPD 55 (Dewar).
The view of the applicant’s treating practitioners was that the applicant’s injury was still evolving and was yet to stabilise.
The applicant noted the engagement of rehabilitation providers, Pinnacle Rehabilitation and Work Focus Australia and referred to their reports.
Those providers had approached the applicant’s treating specialist, Dr Bisely, in
February 2022 enquiring as to the applicant’s return to work and vocational goals. Dr Bisely set out some parameters around the potential return to work, however, the outcome of WorkFocus Australia’s assessment was not known.
The applicant was unable to find employment that fit within her restrictions. It was noted that the applicant resided in a regional part of Australia. The applicant described her attempts to identify suitable jobs including, a work trial at a local hotel that was unsuccessful.
The applicant submitted 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.
The labour market for jobseeking available to the applicant was smaller than might be found, for example, in Sydney. The change in certification by Dr Wang was to reflect the reality of the applicant’s situation. Looking at the matter holistically, the Commission would be satisfied that the applicant had no actual capacity to generate income in the labour market.
The applicant referred to her statement evidence. The applicant described recent consultations with Dr Creer and Dr Bisley to address the functional issues with her knee. The applicant described a recent work trial and set out the nature of her restrictions.
The applicant submitted that the report of Dr Creer stood in contrast to the dismissive approach of Dr Hughes. Dr Hughes dismissed the applicant’s account of her symptoms despite the radiological evidence and his own clinical findings.
Dr Creer found wasting and restriction of movement and made recommendations for further treatment and investigation.
The applicant noted the evidence from Dr Bisley. The evidence indicated that attempts were still being made by the applicant’s treating practitioners to address the applicant’s complaints. The applicant had a poor rehabilitation following surgery and was being investigated for a number of issues involving her neck, back and both knees.
The applicant relied on the opinions of Dr Poplawski, who noted the ongoing issues and supported the propositions put forward by the treating practitioners.
In contrast, Dr Hughes took a glib approach to the applicant’s condition.
The applicant’s case received support from her general practitioner and sports physician. Investigations and treatment were continuing. The applicant had been cooperative in engaging with rehabilitation providers but without success. The applicant’s capacity for work was zero.
It remained for the respondent to suggest a level of capacity and identify the type of suitable employment available.

Respondent’s submissions

The respondent submitted that the applicant’s case was based on the certificates produced by Dr Wang. Those certificates were all in the same form and gave little insight as to the basis upon which he had certified the applicant as having no current capacity.
The respondent referred to the authority in Makita (Australia) Pty Ltd v Sprowles[5] and submitted that the doctor’s opinion ought to be backed up by evidence that would rationally and reasonably support his conclusion.
[5] [2001] NSWCA 305.
The certificates were left blank in relation to diagnosis, relationship to work and estimated time to return to employment. The certificates provided no information and failed the evidentiary test. Despite the absence of information or explanation, the Commission was being asked to accept the conclusion that the applicant had no current work capacity.
The respondent noted that Dr Bisley formed the view that light sedentary work would be suitable having regard to the applicant’s restrictions.
Dr Poplawski said in his report that the applicant was not fit to resume physical work. Sitting was not identified as a problem.
The respondent submitted that “suitable employment” means work for which the worker is currently suited regardless of whether the work is available. Section 32A directed that the Commission was not to take into account the state of the labour market. There was no evidence to suggest any restrictions beyond that which was normally found in regional parts of New South Wales. Leeton was a large regional town and not as remote as was suggested by the applicant’s submissions.
The respondent submitted that the applicant bore the onus of persuading the Commission that she was totally incapacitated and that her circumstances had changed. The respondent did not suggest that any order should be made for benefits to be paid at a rate lower than that currently being paid.
The respondent submitted that Dr Wang’s certificates were inadequate to discharge the evidentiary onus in light of the other evidence.

Applicant’s submissions in reply

The applicant submitted that the medical certificates were only part of the evidence and not the whole of the evidence to be taken into account.
The conclusions of the rehabilitation provider had not been provided and the Commission could assume they were not favourable to the respondent.
The applicant lived in a regional location. Although it might be thought that the applicant could work sitting in a call centre, and such jobs existed in, for example, Sydney, such jobs did not exist where the applicant resided. Applying Dewar and Gradan Bathrooms, there must be real jobs. A purely theoretical analysis was insufficient. There had to be real jobs which were actually available. The applicant had not been able to identify any real jobs and none had been identified by the respondent’s rehabilitation provider.

FINDINGS AND REASONS

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
The applicant is currently in receipt of voluntary payments of weekly compensation in accordance with the agreement reached between the parties in the previous proceedings before the Commission.
In these proceedings, the applicant is seeking orders for payment of weekly compensation from 4 March 2022 to date and continuing in accordance with s 37(1) of the 1987 Act on the basis that she had “no current work capacity”.
Section 37 of the 1987 Act provides:
“37   Weekly payments during second entitlement period (weeks 14–130)
(1)    The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)  95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)    The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)  80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)  the maximum weekly compensation amount, less the worker’s current weekly earnings.”
For the applicant to be entitled to weekly compensation pursuant to s 37(1) of the 1987 Act, she must demonstrate that she has, during the relevant period had “no current work capacity”. The expression, “no current work capacity” is relevantly defined in item 9 of schedule 3 to the 1987 Act as follows:
“9   Meaning of “current work capacity” and “no current work capacity”
(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.”

There is no dispute between the parties that the applicant has a present inability to return to work in her pre-injury employment. The respondent has not suggested that the applicant should not remain in receipt of weekly compensation at the rate currently being paid.
What requires determination is whether, during the relevant period, the applicant has had a present inability arising from her injury such that she was not able to return to work in “suitable employment”. The expression “suitable employment” is defined in s 32A of the 1987 Act 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.”
In Dewar Roche DP considered the meaning of ‘suitable employment’ in s 32A and said:
“In light of the 2012 amendments, care must be exercised in relying on Lawarra Nominees and Woods. Under those authorities, the task of assessing whether a worker was wholly or partially incapacitated was a “practical exercise” that “involve[d] the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which [the worker] is to be engaged” (Mahoney P at [30] in Lawarra Nominees).
This approach was consistent with the High Court’s decision in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171, where Mason, Wilson, Deane and Dawson JJ said (at 178) that “the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work” (emphasis added).
It is the emphasised words in the two preceding paragraphs that have effectively been eliminated by the directions in s 32A that employment for which the worker is currently suited is determined “regardless of” whether the work or employment is “available” and regardless of whether it is “of a type or nature that is generally available in the employment market”. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is “suited” for suitable employment.
There is nothing in the context of the definition of suitable employment to suggest that “available” should be given anything other than its relevant dictionary meaning. The third meaning attributed to “available” in the Shorter Oxford English Dictionary (Oxford University Press, 6^th ed, 2007) is “[a]ble to be used or turned to account; at one’s disposal; within one’s reach, obtainable”. Thus, just because the suitable employment the worker is able to perform is not “available” in the labour market in which the employee was working or might reasonably be expected to work does not justify a finding that the worker has no current work capacity.
However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that “suitable employment” must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s “inability arising from an injury”. Suitable employment means “employment in work for which the worker is currently suited” (emphasis added).”
Further:
“Therefore, the determination of whether a worker is “able to return to work in suitable employment” is not a totally theoretical or academic exercise and Mason P’s reference to the “eye of the needle” test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
In Gradan Bathrooms Snell DP referred to the comments above and stated:
“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.”
To determine whether there is suitable employment in the applicant’s case, it is necessary to consider first the nature of the applicant’s incapacity and the medical evidence.
The certificates of capacity provide a useful starting point. The applicant has, in the relevant period been consistently certified as having “no current work capacity” by her current general practitioner, Dr Wang.
Dr Wang’s certificates do not, however, provide any indication of the basis for the certification. As noted by the respondent, the certificates give no indication of the doctor’s diagnosis or the causal relationship to work. The applicant’s treatment is described only as “simple analgesia”. No estimate is provided for a return to employment and no factors affecting recovery are identified. No reports from Dr Wang or clinical records from his practice have been supplied to provide context to the certificates.
It is noted that the applicant had, between 6 July 2021 and 3 August 2021, been issued with certificates of capacity by a different general practitioner, Dr Tang, based in Sydney, which certified her as having capacity for some type of work for six hours per day, three days per week. Those certificates suggested that the applicant had a sitting, standing and driving ability “as tolerated”. The applicant was to avoid excessive use of the cervical and thoracic spine. The applicant had a lifting, pushing and pulling capacity of up to 2 kg.
On 9 December 2021, Dr Dalia Al-Karawi, of the same practice as Dr Wang issued a certificate certifying capacity for suitable work at three hours per day, two days per week. The applicant had a two-hour sitting tolerance and 15 minute standing tolerance.
The certificates issued by Dr Wang in the period after 4 March 2022, therefore, indicate a downgrade in capacity.
Other treating medical evidence during the period in question can be found in the reports and other evidence from Dr Bisley and Dr Creer.
A report from Dr Bisley, dated 14 February 2022, recorded that the applicant was continuing to have pain and other symptoms, including a sensation of giving way, at her left knee. The applicant had fallen twice and reported difficulty going up and down stairs and walking on slopes. The applicant also described some pain and clicking in the right hip. Dr Bisley was of the view that further investigations were required.
Dr Bisley indicated in a further report, dated 15 March 2022, that a further MRI was reported as normal although Dr Bisley suspected the applicant was developing some arthrofibrosis and had a large fat pad.
Dr Creer expressed the same view and noted, in a report on 26 May 2022, that he had arranged for an ultrasound guided cortisone injection and local anaesthetic injection. There is no evidence before the Commission in these proceedings as to the outcome of that injection.
Dr Creer did give an indication of the applicant’s current symptoms in his most recent report. The applicant reported constant pain in the left knee, worse with weight bearing activities, especially squatting and kneeling. The applicant reported the knee was unstable, intermittently stiff and there was some swelling. The applicant felt that she walked with a limp. The applicant’s treatment included intermittent anti-inflammatories (1-2 per week) and tramadol if the pain was bad at night.
Dr Creer did not comment on any symptoms at the applicant’s right hip, neck or back. Nor did Dr Creer give an opinion on the applicant’s capacity for work.
Dr Bisely’s opinion on the applicant’s capacity for work can be discerned from her response to a questionnaire from WorkFocus Australia on 11 February 2022. Dr Bisley’s response suggested that the applicant had symptoms at the left knee and a markedly weak right hip. Dr Bisley said the applicant was unfit for work unless light sedentary work was available. This suggests that Dr Bisley considered the applicant did have capacity to perform “light sedentary work”.
In her report to Dr Wang, three days later, Dr Bisley said she would not be returning the applicant to work until further investigations were performed. It is unclear whether Dr Bisley remained of the view that the applicant was capable of performing light sedentary work. On the face of the two documents there is some inconsistency. Nothing in the remainder of the report dated 14 February 2022 suggested that light sedentary work would be unsuitable having regard to the knee and hip symptoms described.
Expert medical opinions have been provided from both parties. Dr Poplawski provided an opinion on the applicant’s capacity to work in his report dated 17 August 2021. Dr Poplawski noted the applicant’s knee and hip symptoms. He also noted some discomfort in the neck and back persisting but said these had largely settled. Dr Poplawski noted the applicant had some difficulty with sleep but sitting was not problem and the applicant could drive although had difficulty getting in and out of the car.
Dr Poplawski, consistently with the evidence from Dr Bisley, said the applicant was not fit to resume any type of physical work because of the danger of a further fall. The applicant was unable to tolerate sufficient time on her feet with standing or walking to manage any type of physical occupation.
Importantly, Dr Poplawski’s report was silent on the question of whether any non-physical or sedentary occupation was suitable. It may, be inferred, having regard to the nature of the restrictions and symptoms described by Dr Poplawski that sedentary work would be suitable.
The respondent relies on expert opinions given by Dr Hughes. Dr Hughes has expressed the view that the applicant was fit for pre-injury duties and had no incapacity due to any workplace injury. Dr Hughes has given this opinion, notwithstanding the report of symptoms in the left knee and right hip as well as pain in the back and neck and headaches. Dr Hughes said his physical examination of the applicant revealed no abnormality and no apparent cause for any continuing complaints. Dr Hughes considered the report of a small labral tear of the right hip seen on MRI was of doubtful significance. Dr Hughes did not find any clinical evidence of abnormality in the neck or back.
Dr Hughes’ opinions do stand in contrast to the treating medical evidence and the reports of Dr Poplawski, particularly in relation to the left knee. Dr Hughes has not provided any comment on the views recently expressed by Dr Bisley and Dr Creer that the applicant may have some arthrofibrosis or scarring of the fat pad at the left knee.
The weight of medical evidence indicates that the applicant’s left knee remains symptomatic and that she continues to experience restrictions and disability associated with the injury at that limb. I also accept, having regard to the treating reports of Dr Bisley and
Dr Creer that the applicant has some symptoms at the right hip.
Weighing the evidence as a whole, I am satisfied that the symptoms in the applicant’s lower limbs have caused her to be incapacitated for any form of physical work or work which requires the applicant to be on her feet.
Although the applicant has described symptoms in her back and neck in her statement evidence and in the histories provided to the medicolegal experts, it remains unclear to what extent those symptoms are incapacitating. Those symptoms are not addressed in the treating evidence and Dr Poplawski suggested that such symptoms had largely settled. I am, however, prepared to accept that those symptoms limit the applicant’s ability to bend and twist, push, pull or carry weights.
The applicant is young and has limited work experience, apart from her work for the respondent, which I accept is not currently suitable. The applicant has, however, completed her Higher School Certificate and has a number of transferable skills as described in the report from Pinnacle Rehab. The applicant has computer skills and experience using Microsoft Word, PowerPoint and Excel. The applicant was noted to have experience with data management programs from her work with the respondent. The applicant was noted to have some interest in the general clerk and customer service roles which are described in the Pinnacle Rehab report.
The Pinnacle Rehab report identified these as suitable vocational options for the applicant and indicated that Dr Tang had agreed that these were suitable vocational options for the applicant. The Pinnacle Rehab report described discussions with three employers who had advertised jobs in each of these roles. This suggests that real jobs consistent with the applicant’s restrictions at the time of the Pinnacle Rehab report were available in the labour market.
It is important to note, however, that the applicant’s certified restrictions at the time of the Pinnacle Rehab report were different to those currently certified by Dr Wang. At that point in time, the applicant was not restricted on hours or days per week. As noted above, the applicant is currently certified as having no current work capacity. Prior to the current certifications, limits were placed on her hours by Dr Tang and Dr Al-Karawi.
No evidence has been provided from Dr Poplawksi or the applicant’s treating practitioners addressing whether the applicant would be restricted in the number of hours worked in light sedentary duties.
The medical evidence does suggest some restriction of hours may be appropriate, noting the applicant’s reports of pain and sleep difficulties due to pain. Whilst it does not appear from the medical evidence that the applicant’s symptoms would be exacerbated by sedentary duties of the kind identified in the Pinnacle Rehab report, those symptoms might, for example, impact upon the applicant’s stamina and concentration. The evidence suggests that the applicant’s symptoms require intermittent use of anti-inflammatories and occasional tramadol.
The most recent evidence from Dr Hughes confirms that he considered the applicant had capacity to perform the duties of the three occupations identified in the Pinnacle Rehab report. No indication has been given from the applicant’s practitioners as to whether those vocational options remain suitable since the endorsement of them from Dr Tang.
It is relevant to note that there is no evidence that the applicant has participated in the jobseeking training recommended by Pinnacle Rehab or any other occupational rehabilitation services.
The evidence indicates that the insurer has recently procured the services of a different occupational rehabilitation provider, WorkFocus Australia. WorkFocus Australia contacted
Dr Bisley in February 2022 in relation to developing vocational goals and return to work plan. There is no evidence to suggest that those goals or plan were finalised.
A barrier to the applicant returning to work has been identified in the form of the applicant’s place of residence. As noted by Pinnacle Rehab, the labour market available to the applicant is smaller in the regional town of Leeton where she resides than that available, for example, in Sydney. The applicant’s submissions also suggested that this was a factor to be taken into account in determining whether there were “real jobs” actually available to the applicant. I accept that the applicant has looked for jobs in her local area but has not found anything suitable.
As the comments in Dewar set out above make clear, however, following the 2012 amendments, the geographical labour market available to the applicant is excluded from consideration for the purposes of s 32A.
Having regard to the evidence as a whole, I am not satisfied that the certificates of capacity issued by Dr Wang provide a reliable indication of the applicant’s capacity to work in suitable employment.
Whilst I accept that the applicant is not currently suited to any form of physical work or work that requires her to be on her feet, including her pre-injury duties, the medical evidence does suggest the applicant would have capacity to work in light sedentary work, albeit potentially with some reduced hours.
The Pinnacle Rehab report has identified three vocational options for which real jobs are available in the labour market. The report explains why the applicant is suited to such jobs having regard to her age, education, skills and work experience and the medical evidence regarding her capacity. The suitability of those jobs was endorsed by Dr Tang. The evidence from Dr Poplawski and Dr Bisley is consistent with such work being suitable.
I have accepted that the applicant may not be capable of working full-time hours. I am, however, satisfied that real part-time or casual administrative or customer service roles, similar to those described in the Pinnacle Rehab report, exist in the labour market.
Although there has been a passage of time, surgery and two falls since that report was prepared, the medical evidence does not suggest any particular deterioration, as opposed to a continuation or persistence of the applicant’s condition.
In the absence of further explanation from the applicant’s doctors as to why such sedentary work would be unsuitable, I am not satisfied on the evidence that, in the period from
4 March 2022 to date and continuing, the applicant has had “no current work capacity”.
I am not satisfied that the applicant is entitled to an award pursuant to s 37(1) of the 1987 Act.
I decline to make the orders sought by the applicant.

[2022] NSWPIC 438

4 August 2022