Green v Secretary (Transport for NSW)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Green v Secretary (Transport for NSW) [2022] NSWPIC 713
APPLICANT:	Alan Green
RESPONDENT:	Transport for NSW
Member:	Catherine McDonald
DATE OF DECISION:	30 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Suitable employment; compensation after the second entitlement period; work capacity decision identified three roles which the worker’s general practitioner approved; Wollongong Nursing Home v Dewar referred to; relevance of worker’s opinion as to capacity; Baker v Southern Metropolitan Cemetery Trust discussed; Held – award for the respondent.
determinations made:	1. Award for the respondent pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). 2. Award for the respondent for weekly compensation pursuant to s 38 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

Alan Green was employed by Transport for NSW as a train driver. He suffered a psychological injury as a result of witnessing traumatic events in the course of his employment. He was diagnosed with post-traumatic stress disorder. Liability was accepted for the injury which is deemed to have been suffered on 23 November 2018 and payments of weekly compensation were made.
On 2 November 2021, Transport for NSW made a work capacity decision and determined that Mr Green had no entitlement to weekly compensation.
When the work capacity decision was made, Mr Green had received 131 weeks of compensation. The issue for determination in these proceeding is whether Mr Green is entitled to ongoing weekly compensation under s 38 of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

Mr Green filed an Application for Expedited Assessment which was listed for telephone conference on 25 February 2022. The application was made within the time required by s 80 and s 289B of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) so that the work capacity decision was stayed.
On 18 February 2022 Mr Green made a claim for permanent impairment compensation based on an assessment of 17% whole person impairment (WPI) assessed by Dr Smith. Mr Green agreed to attend an examination by Dr Roberts for the purpose of that claim.
The matter was listed for conciliation conference and arbitration hearing on 24 March 2022 and orders were made to permit the permanent impairment claim to be resolved in these proceedings. The permanent impairment claim was remitted to the President for referral to a Medical Assessor. Transport for NSW agreed that the stay of the work capacity decision would continue until the Medical Assessment Certificate was available.
On 31 August 2022 Dr Blom issued a Medical Assessment Certificate in which he assessed 5% WPI. Mr Green did not appeal that assessment.
The matter was listed for another conference on 5 October 2022. The parties agreed that the permanent impairment assessment precluded compromise resolution and that the dispute about the work capacity decision and Mr Green’s entitlement to payments during the s 38 period must be determined. Directions were made for written submissions.
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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application for Expedited Assessment and attached documents;
(b)    Reply;
(c)    Mr Green’s Application to Admit Late Documents dated 16 February 2022 and 30 March 2022;
(d)    Transport for NSW’s Application to Admit Late Documents dated 21 March 2022 (x2) and 31 March 2022, and
(e)    Medical Assessment Certificate dated 31 August 2022 (MAC).
It is only necessary to set out the evidence which deals with Mr Green’s work capacity.

The work capacity decision and supporting evidence

Transport for NSW made a work capacity decision on 2 November 2021 to take effect on 9 February 2022. The decision said that Mr Green had capacity to work unrestricted hours and assessed his earning capacity in suitable employment as $1,304.67. It assessed pre-injury average weekly earnings (PIAWE) as $1,620 and noted that that the second entitlement period had expired. Based on a vocational assessment, Transport for NSW identified the vocational options of truck driver, forklift driver or store person as suitable employment. In accordance with the formula in s 38(7) of the 1987 Act, it assessed his entitlement to weekly compensation as nil. The decision relied on a certificate of capacity from Mr Green’s general practitioner, Dr Kesby dated 23 September 2021 and a document from Dr Kesby dated September 2020 “signing off” on the vocational options identified. It also relied on a vocational assessment report by Prestige Health Service dated 8 September 2020 and a labour market analysis report dated 15 July 2021.
Ms Boggian of Prestige Health Services Australia prepared the vocational assessment report on which the work capacity decision is based on 23 September 2020. The report was based on Dr Kesby’s certificate of capacity dated 10 September 2020 and an interview with Mr Green. Mr Green said that he rode his motorcycle with a group on Wednesdays. He had limited computer skills though had recently undertaken a course. Ms Boggian noted that he had an expired forklift licence and had used a forklift in the first period of his employment with Transport for NSW between 1980 and 1993 when he was a bus repairer and car and wagon builder. Ms Boggian identified the roles of truck driver, storeperson and forklift driver as suitable, noting the training that would be required to obtain the appropriate licences. She set out the inquiries she made of three employers for each of the identified roles, each of whom indicated that Mr Green would be a competitive applicant, taking his work history into account. Though the report does not say that Ms Boggian specifically disclosed Mr Green’s age, it does reveal that his long work history was discussed.
At the time Ms Boggian made those enquiries, Mr Green was certified fit to work 32 hours per week and each employer contacted said that those hours could be accommodated.
A labour market assessment report dated 15 July 2021 was prepared by Ms Samson. Subject to Mr Green obtaining a heavy rigid driver’s licence, Ms Samson identified a range of available employment options in the area including Newcastle, Maitland and the Central Coast for each of the identified roles.

Dr Kesby

The clinical notes in the file show that Mr Green has attended Dr Kesby’s practice since 2009 and has seen Dr Kesby since at least the date of injury.
On 14 January 2019 Dr Kesby certified Mr Green fit for some type of employment for four hours on three days per week. He said that Mr Green was unsuitable to return to work driving trains but may be suitable for return to work driving coaches. In a certificate dated
14 March 2019, Dr Kesby noted that Mr Green was not doing any tasks at work during his time there. He suggested a case conference to consider retraining. On 19 March 2019 he certified Mr Green fit for some employment for six hours on three days and said he was able to drive trains on a non-main line within train sheds. The goal was that he return to work driving on main lines.
The first vocational assessment report in the Reply was prepared by Ms Maher on 12 April 2019. It was said to be at the request of Dr Kesby, Mr Green’s general practitioner but Ms Maher had regard to a report from Dr Wotton prepared at the request of Transport for NSW. Dr Kesby’s notes show that he prepared a referral to Ms Maher. The suitable employment options identified were a forklift driver, a product assembler and a storeperson.
On 30 April 2019 Dr Kesby said that Mr Green was ready for observation exposure to driving with a buddy on one day per week. On 30 May 2019 Dr Kesby recommended that Mr Green travel on a train during work hours as exposure therapy.
On 1 July 2019 Dr Kesby issued a certificate of capacity assessing that Mr Green was fit for some type of employment for six hours on three days per week. Based on a report from Dr Lim, psychiatrist, Dr Kesby said that Mr Green was permanently unfit for work in the rail corridor or around trains. Dr Lim’s report does not appear in the file.
On 20 December 2019 Dr Kesby certified Mr Green as having no current work capacity and said that he required intensive psychological treatment for three months.
On 25 February 2020 Dr Kesby increased Mr Green’s capacity to four hours on three days. He was fit for vocational counselling but not active job seeking. On 6 April 2020 Dr Kesby increased Mr Green’s capacity to six hours on three days and increased his hours to normal hours on 5 May 2020. By 17 June 2020, Dr Kesby considered Mr Green was fit for active jobseeking.
On 8 September 2020, Dr Kesby issued a certificate of capacity assessing that Mr Green was fit for some type of employment for normal hours on four days per week. He was suitable for vocational counselling and active job seeking and for work trials in areas of minimal public contact.
On 28 September 2020 Dr Kesby agreed with the vocational options proposed. The form that he was asked to sign noted that training would be required to obtain a licence as a truck driver and forklift driver. The job description for a store person noted that some operation of computers to locate stock would be required.
Dr Kesby wrote to Transport for NSW on 21 April 2021. Though the letter he answered is not in the file, his opinion is clear. He said:
“Mr Green has current capacity to work outside of the train corridor 32 hours/week. He is suitable for employment that does involves minimal contact with the public.
1. Mr Green is unlikely to return to full time work capacity of 40 hours/week
2. Mr Green is permanently not suitable to work within the rail corridor
3. Mr Green is suitable for volunteer or other work that involves minimal contact with the public. He is not suitable for commercial driving due to the risk of triggering his PTSD symptoms.
Suitable employment would involve imparting his skills that he has accrued over many years as a train driver to others such as in training young drivers.
Mr Green is approaching an age where he is looking to retire. He has expressed a reluctance to retrain in such skills as computer literacy and managerial skills.”
After that report, Dr Kesby certified Mr Green fit for normal hours on four days per week – 32 hours from 4 May 2021 until August 2021. On 24 August 2021, Dr Kesby issued a certificate of capacity assessing that Mr Green was fit for pre-injury duties being permanently modified duties, outside the rail corridor and for normal hours and days. He maintained that certification until the last certificate issued on 14 December 2021 when he said that Mr Green was fit on an ongoing basis.

Mr Green’s evidence

Mr Green made a statement on 25 January 2022. He described his symptoms, saying that he is fearful around trains. His sleep is poor and his memory is not good. He is socially withdrawn and does not feel comfortable in social environments. He does not like meeting new people and avoids social events. He avoids situations where people have to rely on him and he is uncomfortable operating machinery. He attempts to minimise travel.
Some material is missing from his statement but the context shows that Mr Green was referring to the Rail Motor Society when he said he felt comfortable going there because he knew a lot of the people.
In respect of the roles proposed, Mr Green said it was unrealistic that he work as a truck driver because the responsibility of operating a large vehicle scared him. He said he did not have the appropriate licence. He agreed that there were some duties he could do with a forklift but did not hold a licence. He said that the operation of a forklift in a workshop scared him and doubted he could do so. He said he did not have any skills to work as a store person, particularly if he had to interact with customers and staff and meet demands. He said that he would struggle with the computer skills required.
Mr Green relied on a report from Mr Hook, rehabilitation counsellor, of Work Smart Rehab dated 11 February 2022. Mr Hook said that he considered only the letter of instructions, the work capacity decision, Mr Green’s statement and the reports of Prestige Health Services.
Mr Hook obtained the history that Mr Green had not sought and was not seeking new employment. He recorded that Mr Green continued to undergo psychological counselling and rarely left home apart from essential errands and/or if accompanied by one of his daughters.
Mr Hook summarised his conclusion:
“Mr Green will likely experience disadvantage on the open labour market across all sectors given his age (65 years in 2022) with employers unwilling to take on older workers who have only a short period of time to work before they become eligible for retirement. Born in 1957, Mr Green is eligible for retirement from the age of 67 years. He is also further disadvantaged by the fact he has worked in only one job, Train Driver, for the last 28 years, has limited computer and customer service experience and is actively participating in psychological treatment which would suggest he has not yet reached maximum medical improvement.”
Mr Hook said that no work options had been identified from his labour market research. He did not further describe the research he undertook. In the body of his report, he noted:
“Mr Green explained a Work Capacity Decision had been made in November 2021 and his weekly benefits were about to stop. He reported it had been determined he could work as a Truck Driver Heavy Rigid (HR Class), Forklift Driver and/or Storeperson. Mr Green reported being surprised about the decision given he does not hold a HR truck licence, had only recently obtained a Forklift Licence (with limited operating experience obtained via a volunteer position) and had never worked in Stores. Mr Green stated he was unwilling to consider roles that would involve him driving or operating machinery, explaining it was insensitive, given his compensable injury and recorded psychological triggers, to expect he could drive a heavy vehicle or forklift when he was unable to drive a train, paralysed with fear, that he could cause injury to another person. Mr Green stated he was frustrated so little care or consideration was made with regards to the work capacity decision given he had never driven a truck and did not hold a truck licence. He reported the work capacity decision had caused considerable psychological distress. … Mr Green stated ‘there is no way in the world I am getting in a truck and driving on the highways. I couldn’t do it. I can’t open myself up to that type of risk. I can’t even really drive my own small car’.”
Mr Hook said that he had not been provided with a current certificate of capacity and that Mr Green told him he was certified unfit for work. Mr Hook said that Mr Green attended the Rail Motor Society as part of his occupational rehabilitation and that he now looked forward to volunteering.
Mr Hook considered that Mr Green had a poor range of transferable skills. He said:
“As per the referral documentation, the aim of this report was to determine Mr Green’s capacity for employment taking into consideration his current presentation, education, training and experience, and psychological restrictions in ‘real world’ terms on the open current labour market. At the time of this report Mr Green had worked as a Train Driver for 28 years – this role did not involve computers, administrative tasks, organisation and planning or customer service, and as such Mr Green’s available transferable skills are limited.”
He said:
“In speaking with Mr Green at the time of this report, it would appear his access to occupational rehabilitation intervention, the opportunity to discuss/ explore alternative vocational options suitable to him given his psychological symptoms, current presentation, age (65 years in 2022) and access to job seeking training has been limited, and this in turn has impacted on available work options.
It is this Assessor’s opinion that the work options identified in PHSA Vocational Assessment report dated 23 September 2020, and the PHSA Labour Market Assessment Report dated 15 July 2021 are not suitable for Mr Green to consider due to his reported psychological symptoms – predominantly his request to avoid the operation of vehicles or machinery, his education, training, experience and age.”
Mr Hook excluded the role of truck driver because Mr Green does not hold a truck licence. He considered that Mr Green would be disadvantaged from applying for work as a forklift driver because of his age and that “his resume would be unlikely to attract the attention of a new employer seeking a Storeperson” and Mr Green would not be a competitive applicant.
Mr Hook said that he gave attention to work options which may offer Mr Green comparable earning potential. He stressed that Mr Green is eligible for retirement from the age of 67.

Other medical evidence

Dr Wotton saw Mr Green on behalf of Transport for NSW and reported on 19 March 2019. Dr Wotton diagnosed post-traumatic stress disorder. At that time, Mr Green had not undergone treatment with a psychologist and Dr Wotton said he was not fit for employment other that for “light duties around the station”. He was not able to drive trains because that would trigger high levels of anxiety and place himself and others at risk.
On 9 August 2021 Dr Kyriazis conducted an injury management consultation by file review. He noted the proposed vocational options of truck driver, storeperson or forklift driver. He also noted that Mr Green undertook voluntary work at a railway museum and was able to undertake his hobby of motorcycle riding. Dr Kyriazis consulted with Dr Kesby who said that he supported Mr Green obtaining his forklift licence and undertaking a work trial. Dr Kesby agreed that there were psychological benefits in work. Dr Kyriazis recommended that Mr Green’s hours be upgraded and “Dr Kesby stated that he would have to discuss this with Mr Green, as he was unsure of Mr Green’s motivation”. Dr Kesby said that Mr Green did not want medication treatment and that he considered psychological treatment would not achieve progress because Mr Green was not fully engaged with it.
Dr Smith reported on 9 February 2022 to Mr Green’s solicitors. Dr Smith noted that Mr Green had worked in a voluntary capacity at the Rail Motor Society at Paterson for the previous 12 months. Toward the end of 2020 he obtained a forklift licence but had not used it for fear of being involved in an accident. Dr Smith diagnosed post-traumatic stress disorder and persistent depressive disorder with intermittent major depressive episodes but without current major depressive episode. When asked if Mr Green was fit to work full time as a truck driver, storeperson or forklift driver, Dr Smith said:
“In my opinion, given Mr Green's ongoing anxiety and depressive symptoms and his inability to return to any employment since 2019, he is not fit to work 38 hours per week in the employment options identified by the insurer in roles as a truck driver, storeperson or as a forklift driver. Although he has worked in a voluntary capacity mainly sweeping floors and helping electricians at the Rail Motor Society on Mondays over the past 12 months, in my opinion, he would not be fit for anything more than casual employment at this stage and he would not be fit to work as a forklift driver or a truck driver due to fear of being involved in accidents.”

Dr Smith said:
“In my opinion, Mr Green would not be able to work more than casual hours. He would find it difficult to work with others, respond to authority, retain information, record information correctly, learn new skills, concentrate, be emotionally resilient, effectively handle conflict, communicate and interact with others in the workplace, work in a fastpaced environment and regulate his mood.”
Dr Roberts reported to Transport for NSW’s solicitors on 19 March 2022 and provided an assessment of permanent impairment. Relevantly to the issue I am required to determine, Dr Roberts considered that Mr Green was fit for full time work in areas other than train driving and agreed that the proposed roles were suitable. He prepared a further report including an assessment of permanent impairment.
Dr Blom prepared the MAC for the permanent impairment claim on 31 August 2022. He recorded that Mr Green saw a psychologist for about a year initially weekly, then fortnightly and monthly. He ceased seeing his psychiatrist because he felt the sessions were no longer helpful. He did not take medication.
Mr Green was medically retired in September 2019 when Transport for NSW decided not to use minibuses to pick up drivers.
Dr Blom recorded:
“In early 2021 he became a volunteer at the Rail Motor Society attending one day/week for about five to six hours. He said that this is mainly a social event for him, and he does only very limited work mainly spending the time with the other volunteers. He did note that whilst he is able to do simple work on stationary trains, but if there is a need to move the train he moves well away to avoid being anywhere near the train when it is moving. Mr Green has been a long-term motorcycle enthusiast and he has continued riding his motor cycle on a weekly basis for about three to five hours throughout this period. The motorcycle provides not only recreational interest but social contact as well as the members of the group usually have coffee or lunch together.”
Dr Blom said that Mr Green is able to drive his car and ride his motorcycle without any significant impairment. He is able to ride his motorcycle for up to five hours. He socialised with friends in the motorcycle group to which he belongs.
With respect to Mr Green’s capacity for employment, Dr Blom said:
“Mr Green continues to experience anxiety and is avoidant of novel situations or groups of people whom he does not know. His symptoms tend to fluctuate and are worse when he is with unfamiliar people. He has difficulties with concentration and focus, however his overall symptoms are relatively mild, and he is able to engage in activities at the RMS and in his motorcycling that demonstrate reasonable persistence and motivation. He has previous demonstrated capacity to drive a mini bus. I believe his impairment and symptoms have somewhat improved since that time and so I believe that he would be able to work for up to twenty hours/week in a position not connected directly with trains, as long as it was less stressful and required less concentration than working as a Train Driver.”
Dr Blom assessed 5% WPI. When assessing employability, Dr Blom noted that Mr Green had demonstrated previous capacity to drive a minibus for 20 hours per week and that since then his symptoms and overall impairment had improved.

SUBMISSIONS

The submissions provided remain on the file.
Mr Murray, solicitor, prepared submissions for Transport for NSW. He set out the history summarised above and said that the only outstanding issue is Mr Green’s entitlement to weekly compensation under s 38 of the 1987 Act. As a result of the assessment of 5% WPI, Mr Green is not a worker with high needs and Mr Murray said it was uncontroversial that Mr Green had not returned to work in suitable employment for at least 15 hours per week. Therefore, to receive weekly compensation, Mr Green must show that he had no current work capacity and is likely to continue in that way indefinitely. If Mr Green has any work capacity, he has no entitlement to weekly compensation.
Mr Murray said that the evidence did not support that contention. He summarised the medical evidence and highlighted that Dr Kesby approved the job options identified for Mr Green. He said that the evidence was “effectively all one way” supporting the contention that Mr Green is fit to work full time or at least part time, avoiding train driving roles and roles that involve excessive contact with the public. Even Dr Smith, whose opinion is most favourable to Mr Green, considered that he could work “casual hours”. Mr Murray said that Mr Green’s own activities in riding a motorcycle, volunteering at the Rail Motor Society were relevant, as was his post injury role driving a minibus for 20 hours per week. Mr Green recently obtained a forklift licence.
While s 32A required consideration of Mr Green’s “age, education, skills and experience” the evidence from Mr Hook relied on by Mr Green was based on assumptions which were not supported by the evidence. Mr Hook stressed that Mr Green’s age would be a disadvantageous factor but Mr Murray noted that no explanation had been required and that his conclusion was contrary to the evidence in Ms Boggian’s report who recorded that a number of employers indicated that Mr Green would be a good candidate. Mr Hook also relied on a “a markedly different psychological condition”.
Mr Murray said that even apart from the roles identified, Mr Green’s activities and the medical evidence supports the conclusion that he is fit for a wide range of roles. He said the evidence plainly established that Mr Green has capacity for a wide number of roles and that he has capacity for suitable employment being employment which is generally available in the open labour market, referring to Wollongong Nursing Home Pty Ltd v Dewar[1] (Dewar). Mr Murray said there was no evidence that Mr Green has no current work capacity.
[1] [2014] NSWWCCPD 55
Mr Murray said that there should be an award for Transport for NSW under s 66 of the 1987 Act based on the assessment in the MAC.
Mr Beran of counsel prepared submissions for Mr Green. He noted the definitions in s 32A of the 1987 Act as at the date of injury and the principles set out in Dewar at [63]-[64], extracted below.
Mr Beran said it is clear that Mr Green cannot return to his pre-injury employment. He relied on Mr Hook’s opinion that the identified roles were not suitable because Mr Green did not have the required experience or licences, had limited computer and customer service experience and was actively involved in treatment. Mr Beran referred to Dr Smith’s opinion that Mr Green would not be fit for anything more than casual employment and would:
“find it difficult to work with others, respond to authority, retain information, record information correctly, learn new skills, concentrate, be emotionally resilient, effectively handle conflict, communicate and interact with others in the workplace, work in a fast-paced environment and regulate his mood.”
Mr Beran noted that Dr Kesby said in his report dated 21 April 2021 that Mr Green was fit for volunteer work or work that involved minimal public contact and was not suitable for commercial driving. Mr Beran said that the roles identified by Transport for NSW were goals and the fact that Mr Green’s general practitioner had approved an aspirational goal was not the same as approving suitable employment options.
In applying the legislation to the evidence, Mr Beran said that Mr Green has a limited employment history predominantly working in and around trains. He said that the medical evidence showed that Mr Green was fit to work 20 hours per week and that the only position deemed suitable was the volunteering position that Mr Green attends one day a week and where he performs menail work. It is very different from a real job and there is no evidence of a real job that suits the restrictions appropriate for Mr Green. Mr Beran said that in those circumstnaces, I would find that Mr Green has no current work capacity.
Mr Beran conceded that I should make an award for the respondent on Mr Green’s claim for permanent impairment compensation.
When the timetable was agreed, Mr Murray sought leave to file submissions in reply which was not opposed. In reply, Mr Murray said that the question of whether employment is suitable is a matter for expert evidence and that limited weight should be ascribed to Mr Green’s own evidence about his capacity for work, citing Baker v Southern Metropolitan Cemeteries Trust[2] (Baker).
[2] [2015] NSWWCCPD 56 at [143].
Mr Murray said that Mr Hook’s report was not consistent with the evidence – particularly when Dr Blom said that Mr Green’s overall symptomatology had improved. Mr Hook’s report was inconsistent with the enquiries that Ms Boggian made from employers and it was apparent that he had relied on Mr Green’s own view as to the suitability of jobs.

FINDINGS AND REASONS

Section 38 of the 1987 Act provides:
“38   Weekly payments after second entitlement period (after week 130)
(1)     A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)     A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a)the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b)the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c)the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
…
(7)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.
…”
The parties agree that Mr Green cannot return to work as a train driver. Because Mr Green has not returned to work at all, he is only entitled to ongoing weekly compensation if I am satisfied on the evidence he has no current work capacity. There is no dispute that the Commission can make that determination.
Section 32A contains the definitions for Division 2 of Part 3 of the 1987 Act. It includes:
“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.”
Other relevant definitions for the purpose of weekly compensation payments are found in Schedule 3 of the 1987 Act. Clause 9 provides:
“9     Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)     An injured worker has current work capacity of 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.”
Those definitions are not materially different to those formerly in s 32A. They apply to injuries received before the date of the 2018 amending legislation – Part 19L cl 2 of the 1987 Act.
Roche DP’s decision in Dewar concerned the meaning of terms defined in s 32A of the 1987 Act including “suitable employment”. The worker was an assistant in nursing who suffered a shoulder injury. On her return to work after the injury, she was given duties in the laundry, folding washers and towels and she performed those duties until liability for the compensation was denied and the duties were withdrawn. After surgery, she returned to the nursing home and was told no suitable duties were available.
Roche DP said that it was not correct to assess whether the worker was able to return to suitable employment by reference to the availability of the duties at the nursing home rather than by reference to her capacity for work. Roche DP said[3]:
“Having accepted that Mrs Dewar has an ‘inability’ arising from her work injury, the Arbitrator’s task was to determine, having regard to the matters listed in the definition of suitable employment, if she was ‘able to return to work in suitable employment’. The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is ‘available’ or is of a type or nature that is ‘generally available in the employment market’.”
[3] At [48].
After considering the relevant medical evidence, Roche DP said:[4]
“After referring to Lawarra Nominees, the Arbitrator said that, to be viewed as ‘suitable employment’, there must be a capacity that is at least ‘potentially able to be realised for financial reward on the labour market’. If, by that statement, the Arbitrator meant that the work had to be available in a labour market reasonably accessible to Mrs Dewar, his statement was inconsistent with s 32A and was wrong. If the Arbitrator meant that the suitable employment must be employment that is real and is (potentially) available in the labour market at large, though not available to Mrs Dewar and not ‘generally available in the employment market’, I agree.”
[4] At [51].
Roche DP set out the definition of suitable employment and said:
“Thus, the task requires the identification of whether there are any “real jobs” (Giankos v SPC Ardmona Operations Ltd[2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’. The Arbitrator did not properly undertake that task and did not resolve the conflict in the evidence about the nature of the light duties Mrs Dewar performed (see [4] and [5] above).
In determining if a worker is ‘not able to return to work’ in suitable employment there will often be issues about the suitability of the work in question. Such issues will be determined on a case-by-case basis, depending on the available evidence dealing with the issues in subs (a) of the definition...”[5]
[5] At [63]-[64].

Application of the principles

The tenor of the evidence is that Mr Green does not wish to return to employment (for example in Dr Kesby’s report dated 21 April 2021) and that Mr Green does not consider that he is fit for employment. Mr Hook noted Mr Green’s frustration about the work capacity decision and the fact that it did not take into account the fact that he has not driven a truck or held a truck licence.
Mr Green’s evidence as to his capacity is not determinative. In Baker, Roche DP said:[6]
“On the issue of whether the illness was such as to prevent Mr Baker from resuming employment, a worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury (Boral Recycling Pty Ltd v Figueira[2014] NSWWCCPD 41 at [38]).”
[6] At [143].
Mr Green’s preferences are similarly not relevant.
I prefer the evidence of Mr Green’s medical practitioners about his capacity over his own. Dr Kesby’s most recent certificates state that Mr Green is fit for permanently modified duties for normal hours. Those certificates issued at the end of 2021 post-date his report in which he said that Mr Green was fit to work only 32 hours per week and was unlikely to return to full time capacity. I accept that in late 2021, Dr Kesby considered that Mr Green was fit for permanently modified duties on a full time basis.
Mr Green has not returned to work, and in particular, not for more than 15 hours per week. It does not matter that Dr Smith and Dr Blom said that Mr Green was fit for less than full time hours. Dr Blom noted that Mr Green’s condition had improved since the date of Dr Smith’s report in February 2022. Unless I find that he has no current work capacity, Mr Green is not entitled to weekly compensation.
The determination of the claim depends on whether I am persuaded by Mr Hook’s opinion over all of the other evidence in the file. Mr Hook said that Mr Green’s assessed psychological restrictions and observed psychological symptoms at the time of his report would realistically prevent him from competing for new employment on the open labour market. The history he obtained was at odds with that obtained by the doctors. For instance, there is no other report stating that Mr Green rarely leaves home unless for essential errands or accompanied by one of his daughters. That is not consistent with his ability to volunteer at the Rail Motor Society or go motorcycle riding as is the statement that he “can’t really drive my own small car”. The history Mr Hook recorded is inconsistent with that in Dr Smith’s report prepared contemporaneously.
Mr Hook said that Mr Green was under active psychological treatment in February 2022. Dr Kyriazis’ report dated 9 August 2021 suggests that treatment had already ceased and Dr Smith said in February 2022 that Mr Green had seen a psychologist, Mr Simpson, for around 12 months, describing that treatment in the past tense.
The assessment of Mr Green’s symptoms is a matter for the medical practitioners rather than for Mr Hook. Dr Kesby, Dr Wotton, Dr Smith, Dr Roberts and Dr Blom all consider that Mr Green has some capacity for employment.
Dr Kesby’s opinion is particularly important. He has treated Mr Green since the date of injury and seen him on a regular basis. He has been involved in Mr Green’s efforts to return to work and agreed that the identified roles are suitable.

Dr Blom said that Mr Green’s condition had improved since Dr Smith’s report. I prefer the assessment of the medical practitioners over that of Mr Hook as to whether Mr Green would be able to undertake employment. I am satisfied that he is fit for suitable employment for at least 20 hours per week.
There is no dispute that the identified roles exist. The definition of suitable employment requires only that jobs are available in the labour market at large. Ms Boggian’s evidence shows that they are available in Mr Green’s local area.
Mr Hook’s report took the most pessimistic view of Mr Green’s literacy and computer skills of all of the reports in the file. He focused on Mr Green’s age and on the fact that he did not already have the training and the licences for some of the roles which have been identified. It is clear from the report that supported the work capacity decision that Mr Green had been assisted to obtain a forklift licence.
The definition of suitable employment requires me to have regard to Mr Green’s age. The relevance of age 67 is not that Mr Green is eligible for “retirement” as Mr Hook said but the fact that that is the age at which he could receive the age pension, based on his date of birth. Mr Hook said that his view was that employers would be reluctant to take on a worker of Mr Green’s age. He said that he conducted labour market research and was unable to identify appropriate roles but did not set out that research except as it applied to train drivers – a role which is unsuitable for Mr Green. The failure to provide the material on which his opinion is based means that Mr Hook’s report is not probative. On the other hand, Ms Boggian set out the telephone calls she had with employers who did not say that age would, of itself, be a barrier to employment.
While Mr Green does not have experience working in positions exactly as identified in Ms Boggian’s report, I am satisfied that the skills he does have from other employment would suit him for those roles. Even if he was not able to work as a truck driver because of his fear of driving on the highway, I accept that the roles of storeman and forklift driver are suitable employment, recommended by his general practitioner.
For those reasons, I make an award in favour of Transport for NSW under s 38.
The parties agreed that based on Dr Blom’s report, I should make an award for Transport for NSW under s 66.

[2022] NSWPIC 713

30 November 2022