Hackett v Chatswood RSL Club

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hackett v Chatswood RSL Club [2025] NSWPIC 421
APPLICANT:	Steven Hackett
RESPONDENT:	Chatswood RSL Club
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	20 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application to set aside work capacity decision; not satisfied that applicant had capacity to work 30 hours a week when struggling to work 25 hours in current employment; not satisfied that applicant’s secondary psychological condition was taken into account; found that applicant could not work in management role; Held – work capacity decision is set aside.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The Work Capacity Assessment dated 26 February 2025 is set aside. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Hackett (the applicant) sustained an injury to his lumbar spine, namely a L5/S1 disc injury, on 27 September 2017 in his employment with Chatswood RSL Club (the respondent) when he was moving 60kg beer kegs.
The applicant underwent surgery to his low back on 14 February 2018. While the applicant was able to resume work following this surgery, he continued to suffer symptoms in his low back and, subsequently, in his right leg.
In February 2022, the applicant commenced employment with Hort Grade Pty Ltd (Hort). The applicant suffered further injury to his lumbar spine, namely a recurrence of the L5/S1 disc protrusion on 25 August 2023 while in the employment of Hort. He ceased work on
25 August 2023.
On 13 February 2018, the applicant underwent a further operative procedure at L5/S1. He was unable to return to his employment. He has also developed a psychological condition, which his treating psychiatrist attributes to the back injuries and their sequelae.
The applicant was paid compensation until 5 December 2023 by the respondent. The cessation of weekly payments occurred following the issuing of a dispute notice by the insurer dated 22 November 2023 in which it asserted that the applicant’s incapacity for work did not result from injury in the course of his employment with the respondent.
The applicant commenced proceedings in the Personal Injury Commission (the Commission) in Matter No W3122/24 against the respondent (the first respondent) and Hort (the second respondent) claiming weekly benefits and medical expenses.
In an amended decision dated 9 August 2024 Member Sweeney made the following orders:
“1. The applicant suffered injury to his low back arising out of and in the course of his employment with the first respondent on 27 September 2017 namely an L5/S1 disc protrusion.
2. The applicant suffered further injury to his low back namely a recurrence of the L5/S1 disc protrusion deemed to have occurred on 25 August 2023 in the employment of the second respondent.
3. That the applicant’s incapacity for work after 25 August 2023 results from both injuries.
4. Note that the claim for medical and hospital expenses pursuant to s 60 has been resolved.
5. Liberty to apply in the absence of agreement in respect of apportionment of liability pursuant to s 22 of the Workers Compensation Act 1987”.
In a Certificate of Determination - Consent Orders dated 30 October 2024 (Matter No W3122/24) Member Benk issued the following orders and notations:
“1. Further to the Amended Certificate of Determination dated 9 August 2024 and pursuant to section 22 of the Workers Compensation Act 1987, liability between the First Respondent and Second Respondent for the Applicant's incapacity deemed to have occurred on 25 August 2023 is agreed between the Respondents to be apportioned at 70% (First Respondent) and 30% (Second Respondent), in respect of weekly payments and medical benefits payable pursuant to the Workers Compensation Act 1987.
2. ARD is otherwise discontinued.
Notations:
A. The PIAWE applicable to the First Respondent is $1,254.48, to be indexed from 27 September 2017.
B. The PIAWE applicable to the Second Respondent is $835.84, to be indexed from 25 August 2023.
C. The First Respondent has paid weekly payments to the Applicant pursuant to sections 36 and 37 of the Workers Compensation Act 1987 for the period 25 August 2023 until 5 December 2023.
D. The Second Respondent has paid weekly payments and medical benefits to the applicant pursuant to sections 36, 37, 59 and 60 of the Workers Compensation Act 1987 since 6 December 2023 to date and continuing.
E. The weekly compensation that has been paid to the applicant to date, and that is payable on an ongoing basis, is to be adjusted to take into account the agreement at (A) and (B) above.
F. The above Order 1 pursuant to section 22 is to apply on and from 25 August 2023 to date and continuing, with credit for payments already made by each Respondent where relevant.
G. The Respondents agree that HII will take the role of lead agent in the management of the liability to pay the claim, and seek recovery from the insurer of the Second Respondent in accordance with the agreed apportionment amount periodically from time to time”.
On 26 February 2025, the respondent issued a Work Capacity Assessment advising that a work capacity decision had been made following the outcome of a work capacity assessment which resulted in the cessation of weekly payments.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the Work Capacity Assessment dated 26 February 2025 should be set aside.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The matter proceeded in Arbitration Hearing via audio-visual link on 29 July 2025. Mr Luke Morgan, counsel, instructed by Mr Timothy Driscoll of Beilby Poulden Costello, represented the applicant. The respondent was represented by Mr Brendan Jones, counsel, instructed by Mr Mark Van Der Hout, of BBW Lawyers. Ms Curray from Hospitality Industry Insurance Limited (the insurer) (HII) was also present.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents and attached documents filed by the applicant on 11 June 2025.

Submissions

The submissions of counsel have been recorded, and I do not propose to repeat each of the arguments of counsel in these reasons. However, the respondent submits that consistent with the SOS Labour Market Assessment report dated 8 January 2025, and as communicated in the work capacity decision of 26 February 2025, the applicant has the capacity to work up to 30 hours per week in the roles of Sports Centre manager, hotel or motel manager or property manager, earning the income identified in the report.
The applicant submits that the work capacity decision was not made on a proper basis and should be set aside. The applicant argues that the report of 25 February 2025 was effectively a decision made on the papers with reference to an analysis of potential job opportunities referable to the report made in February 2022 some three years earlier and before the revision surgery. Further, the applicant submits that there was no analysis or discussion with the applicant or consideration of the work he was currently performing.

FINDINGS AND REASONS

Evidence of the applicant

In a statement dated 12 April 2024, the applicant stated that he completed his Year 12 High School Certificate. He said that he then worked in concreting, as an arborist, in hospitality and plumbing work. He said he started a plumbing apprenticeship but only completed two years. He stated that in 1996 he worked as a waiter at Gordon Rugby Club before progressively moving up to operations manager. He said that Gordon Rugby Club went into receivership in around 2011 and he found work as a hospitality manager with the respondent and worked there until December 2021. He stated that from February 2022 he worked for Hort as a landscape gardener.
The applicant stated that he had certificates in First Aid, Responsible Service of Alcohol (RSA) and Responsible Conduct of Gaming (RCG), but no formal qualifications.
In a statement dated 12 May 2025, the applicant stated that the delay in the payments of weeklies owed to him and the decision of the insurer to reduce his weekly payments to nil had cause him distress. He stated that he did not believe he could manage the roles identified of a sports centre manager, hotel/motel manager and /or property manager. He wrote: “Both mentally and physically these jobs would lead to further injury or a mental breakdown”.
The applicant stated that he already had a bad experience when he attempted to return to work involving a workplace with physical demands placed upon his back or the risk of being in contact with people performing sporting or other physical activities of weight, speed and such intensities.
The applicant stated that he discussed a job offer that was provided by his employer with his Psychologist, Ms Kym Hando. He said that the offer entailed becoming a manager in the workplace. He wrote: “We both had reservations about my capacity (physical and psychological) to perform this role. My concerns were about the hours, the duties and the fact that I am barely coping with my current job as it is.”
The applicant stated that since November 2024, he had been working in a casual workplace position as a swimming instructor for children. He stated that the pool not only provided him with great relief and provided protection to his back, but it also was therapeutic as a form of hydrotherapy. He said that this job had helped him with his mental health issues and had made him feel like a valued member of society.
The applicant stated that initially, he trialled 10 hours per week but was now working 25 hours per week, earning $550. He said that he was teaching children to swim at an indoor pool at Carlisle Swimming Lane Cove West. He described his workplace as very accommodating, and said he had split shifts, lots of breaks and didn’t need to lift or encounter heavy weights.
He said that he worked a split shift from 8.30am to 11:30am, then 3:30pm to 7:00pm on Mondays, Tuesdays and Thursdays and on Saturdays and Sundays, spent five hours straight in the water. He said that for one shift a week he worked 8.30am to 11.45am at the reception desk performing administrative duties, customer service and swimming goods retail. He described the goods as very light, in the way of swimming items. He stated that there is no heavy lifting, and he could move around and switch postures. He said that he occasionally would ‘spot-clean’ with a dry mop.
The applicant wrote:
“I have tried to work as many hours as I can manage. The maximum that I have managed to do is 28 hours per week. When I tried increasing this, I notice I get leg cramping, the pain in my back would flair up and I would not get much sleep that night which reduced my energy and concentration at work the next day/shift. Hours can be seasonal with numerous students dropping out in the cooler winter months, however most of my classes are full as a result of my hard work and dedication”.
The applicant stated that he suffered pain on a daily basis and flare ups occurred regularly. He described a recent sneeze while driving that caused a significant onset of pain in the low back and led him to re-take opioid medication. He said that working in a heated pool helped him with recovery.
The applicant stated that simple tasks posed hazards that he had to consider before doing them as in the past they had caused both acute pain and otherwise have contributed towards his chronic pain. He said that a simple thing such as picking up a pencil, a balloon, a small slip-on wet tiles, walking off a larger than anticipated street curb gutter, coughing or sneezing without bracing himself led him to have pain upwards of two weeks or more with sleepless nights, constant cramping and spasms. He stated that he feared that if he worked in the proposed jobs especially being required to be running around in a hospitality venue or other physically demanding job, it would only contribute towards further damage resulting in the need for further spinal surgery.
The applicant described himself as still mentally vulnerable and fearful of getting injured again. He said he was not eating as well as he would like, and was still socially isolated and didn’t like engaging with people if he could help it. He described living with pain and his current situation as exhausting.
The applicant stated that he gets tingling down his limbs, more on the right which is slowly going further down his leg. He stated that he tried to stay active and stretch which seems to keep symptoms under control. He described getting muscle cramping in his legs.
The applicant described swimming 6-8km per week as part of his rehabilitation. He stated that he sees his psychotherapist, pain management specialists, psychologist, physiotherapist, and general practitioner regularly. He stated that he uses a TENS Machine, calf compressor and a rolling foam to assist keep his core strong and keep his symptoms under control. The applicant stated that he is taking Lyrica, Celebrex, Duloxetine, Lamotrigine and Quetiapine for his injuries/mental health. He said he did about 10,000 ‘steps' per day to help strengthen his body.
The applicant stated that the report of Dr Pek and his function restrictions as listed were accurate including those of sitting, standing, walking, driving, lifting, pushing, going up and down stairs etc, bending or twisting his lower back, kneeling or squatting.

Work Capacity Decision (WCD)

The WCD states the insurer had determined that the applicant had the capacity for some type of work for six hours per day, five days a week with the following considerations:
·        Lifting/carrying capacity: Up to 10kg
·        Sitting tolerance: 1 hour intervals
·        Standing tolerance: 1 hour intervals
Reference was made to this having been determined using the workers compensation certificate of capacity issued by Dr. Mark Cholakyan, dated 11 February 2025.
Reliance was placed on reports of SOS Rehab dated 18/2/2022 and 08/01/2025, the certificate of capacity from Dr Mark Cholakyan dated 11/2/2025 and the Medical endorsement of vocational options by Dr Cholakyan dated 24/02/2025.
Under the heading “Suitable employment”, the following is stated:
“We have made a decision under section 43(1)(b) of the WC Act, and we have determined that the vocational option of Sports Centre Manager constitutes suitable employment for you.
Suitable employment is defined in section 32A of the WC Act as employment for which you are currently suited considering your capacity for work, age, education, skills, and work experience, regardless of whether the employment is available, whether the employment is of a type or nature that is generally available in the employment market, the nature of your pre-injury employment, or your place of residence.
We outline below the reasons we have determined that the role of Sports Centre Manager constitutes suitable employment for you.
The vocational assessment completed by SOS Rehab dated 18 February 2022, identified details of your education such as Hospitality Course - 1995, Hospitality Excellence, RSA and RCG certificates, First Aid Certificate, Working with Children Check, Police Check and Class C Driver's Licence. The vocational assessment also identified your previous work experience including Swim Instructor (Current), Duty Manager at Chatswood RSL (8-years), Operations Manager at Gordon Social and Recreation Club (15-years) and as a Labourer/ Concreter (1-year). The vocational assessment also outlined your transferable skills and abilities such as management skills, computer literacy, good interpersonal skills, administrative experience and clerical skills and supervisory skills.
In the labour market analysis dated 8 January 2025, the employers contacted advised:
·        The roles are within your assessed capacity, and the employers could accommodate 6 hours per day, 5 days per week
·        Your age is not a barrier to working in the roles
·        You have the required education/qualifications, and your work experience makes you an eligible candidate for the roles.
·        You have the required transferable skills/communication/English/computer skills/other relevant skills for the roles.
Your nominated treating doctor has provided approval for the role.
You are currently working as a Swim Instructor for Swim NSW Opco for 16.25 hours per week.
You have received job seeking assistance and have independent job seeking abilities.”

Sydney Occupational Services Assessment Reports

The first report is a vocational assessment report by Ms Amy Vickery, rehabilitation consultant, of Sydney Occupational Services dated 18 February 2022, and this assessment was conducted by firstly interviewing the applicant. She noted that the applicant participated throughout the assessment and completed the assessment tools required of him. She noted that the applicant was very motivated to re-enter the workforce and had already commenced job seeking activities looking for similar work with a new employer. She noted that he said he had applied for a role as a gym manager but was unsuccessful in getting this full-time position.
Ms Vickery noted that the applicant had undergone a right sided L5/S1 laminectomy following the injury on 27 September 2017. She noted that he reported an earlier back injury in 2004 whereby he underwent a left sided laminectomy of L4/5/S1. She noted that the applicant continued to work for the respondent performing suitable duties, however he felt that the duties that he was offered were not suitable and continued to aggravate his condition and he also reported he was bullied at work. Ms Vickery noted that the applicant resigned in November 2021.
Ms Vickery referred to the current Workcover NSW Certificate of Capacity, which certified the applicant as fit to work 40 hours a week with the following capabilities: “Lifting 20kgs, 120 minutes intervals, sitting 120-minute intervals standing, stretched for 15 minutes every 2 hours, 15 kg pulling and pushing”. She noted that he woke 4-5 times a night with back cramps and could only drive one hour at a time due to tiredness from medications.
Ms Vickery conducted vocational testing and noted that the applicant scored highest in helping, nature and technological. The vocational options identified were Fitness and Sports Centre Manager, Hotel Manager and Property Manager. Ms Vickery noted that some roles as a Fitness and Sports Centre manager required the applicant to have a Certificate III and/or IV in Fitness. She noted that although formal qualifications in hospitality management were not essential for a role as a hotel manager, a Vocational Education and Training course in hospitality may be useful. She noted that the applicant would need to complete a Certificate IV in Real Estate Practice or a Real Estate Course to be competitive in the labour market for a position as a property manager.
The second report is a Labour Market Assessment Report by Mr Craig Little, Senior employment consultant/labour market analyst consultant, of Sydney Occupational Services dated 8 January 2025. This report was compiled by considering the Vocational Assessment Report dated 18 February 2022 by Sydney Occupational Services Consultant, Ms Amy Vickery, B Hlth Sc (Rehabilitation Counselling) and the Certificate of Capacity dated
17 December 2024 issued by Dr Mark Cholakyan (NTD). It appears that no other reports or documents were taken into account in making the assessment. Further, Mr Little did not interview or assess the applicant in person.

Mr Little referred to the current Certificate of Capacity for the period 18 December 2024 to
14 January 2025, which certified the applicant as having capacity for some form of employment six hours per day five days a week or 30 hours a week. The Certificate of Capacity noted the following “Capacity”: Lifting/carrying capacity up to 19 kg, sitting tolerance 1 hour intervals, standing tolerance 1 hour intervals, pushing/pulling ability no restrictions, bending/ twisting/ squatting ability no restrictions and driving ability no restrictions. The Certificate of Capacity stipulated that the applicant was to have regular 5-minute breaks to perform stretching activities.
Mr Little considered the vocational options of a Sports Centre Manager, Hotel Manager and Property Manager.
Under Option 1, Sports Centre Manager, Mr Little noted that tasks may include selection, training and supervision of staff, ensuring facilities are properly maintained and “may plan and organise catering facilities”. Mr Little noted that according to Jobs and Skills Australia the educational standards required ranged from Year 10 and below to Post Graduate/ Graduate diploma. The percentage share of the jobs for workers who were educated to year 12 or below (that is the applicant) was 32.5% and the remaining 67.5% had certificates, diplomas or degrees.
The typical physical/cognitive requirements of a Sports Centre Manager included sedentary to medium demand levels with frequent sitting in offices and meetings, standing and walking frequently in office and sports centre to undertake training and supervision of staff and inspection of facilities. Mental skills necessary include a high degree of cognitive functioning with communication, interpersonal, administration, organisational, problem solving and decision-making capabilities. Lifting and carrying, was not a component feature of the role, and bending, squatting or crouching or stretching, twisting, climbing was not a significant component of the job nor was driving.
Mr Little contacted three employers, all seeking a full-time role to work 8 hours a day, 5 days a week. The first contact, FIT Lane Cove advised that they did offer part-time working hours and could accommodate the applicant to work 6 hours a day, five days a week. This contact reported that the position would entail the ability to lead, train and develop teams while fostering a collaborative, inclusive and positive work culture, interpersonal skills to build strong relationships with members, teams and stakeholders.
Under “Suitability”, Mr Little wrote: “The employer considered Mr Hackett to be a good candidate as he possesses the skills and experience demonstrated by his employment history as per the Vocational Assessment Report completed on 17 July 2024.”
Mr Little stated that the contact considered that the applicant to be a good candidate as he possessed the skills and experience demonstrated by his employment history. The employment history that Mr Little provided to the contact was not set out in the report, apart from the following:
“Mr Hackett has good transferable skills and experience gained from his roles such as a Swim instructor (Current), Duty Manager at Chatswood RSL (8 years), Operations Manager at Gordon Social and Recreational Club (15 years) and as a labourer, concreter (1 year). As a function of his role and studies, Mr Hackett has demonstrated his success in customer service or operational management and his ability to lead, train, and develop teams.”
Mr Little concluded that the applicant had the appropriate skills and experience to be a competitive candidate for the role at FIT Lane Cove.
The second contact was Venue NSW who advised that the employer was looking for a full -time employee to work eight hours a day five days a week. The employer contact advised they preferred candidates to be available full-time bit did offer flexible working hours for the right candidate and could accommodate the applicant to work his capacity hours of six hours a day five days a week.
Under Educational and Licensing Requirements, the contact advised that the position would likely entail tertiary qualifications in Sport and Exercise Science, Human Movement Studies or equivalent, Certificate IV in Fitness. Mr Little considered that the applicant met the educational requirements of the role despite the applicant not having tertiary qualifications in Sport and Exercise Science, or Human Movement Studies or equivalent, or a Certificate IV in Fitness.
Under “Suitability”, Mr Little wrote: “The employer considered Mr Hackett to be a good candidate as he possesses the skills and experience demonstrated by his employment history as per the Vocational Assessment Report completed on 17 July 2024.
Mr Little then stated that the applicant had the appropriate skills and experience to be a competitive candidate for this role despite a failure to address the lack of qualifications.
The third contact, Western Sydney Wanderers FC was also seeking a full-time manager to work eight hours a day, five days a week. The employer contact advised they preferred candidates to be available full-time but did offer flexible working hours for the right candidate and could accommodate the applicant to work his capacity hours of six hours a day five days a week.
The contact advised that the role would entail duties including ensuring commercial performance of the facility is optimised through development and implementation of strategies to drive growth in activity and the generation of operational savings, support the development of annual budgets ensuring the Facility and activities are managed within budgetary parameters, maximising opportunities to generate revenue for non-event activities, provide regular financial reporting to the Head of Stakeholder Engagement to ensure KPI’s for the Facility are being met, and leadership in building and developing football participation outcomes. The contact identified as a key skill “Strong business development, financial reporting and office administration skills”. Mr Little considered that the applicant required no further training for this role and had demonstrated intermediate computer skills.
Under “Suitability”, Mr Little wrote: “The employer considered Mr Hackett to be a good candidate as he possesses the skills and experience demonstrated by his employment history as per the Vocational Assessment Report completed on 17 July 2024.”
Mr Little concluded that the applicant had the appropriate skills and experience to be a competitive candidate for the position.
Mr Little noted that with the option of Sports Centre Manager, the available labour market would increase should the applicant have to the capacity to work full time.
Under Option 2, Hotel and Motel Managers, Mr Little noted that tasks may include directing and overseeing reservation, reception, room service and housekeeping activities, supervising security arrangements, and garden and property maintenance, planning and supervising bar, restaurant, function and conference activities. Mr Little noted that according to Jobs and Skills Australia the educational standards required ranged from Year 10 and below to Post Graduate/ Graduate diploma. The percentage share of the jobs for workers who were educated to year 12 or below (that is the applicant) was 38% and the remaining 62% had certificates, diplomas or degrees.
The typical physical/cognitive requirements of a Hotel and Motel Manager included sedentary to light work with frequent sitting in offices and meetings, stands and walks frequently in office and hospitality areas, a rare need for some lifting, carrying or pulling in the sedentary to light range in some roles. Mental skills necessary include a high degree of cognitive functioning with communication, interpersonal, administration, organisational, problem solving and decision-making capabilities. Lifting and carrying was not a component feature of the role, and bending, squatting or crouching or stretching, twisting, climbing was not a significant component of the job, nor was driving.
Mr Little contacted three employers, all seeking a full-time role to work up to 38 hours a week. The first contact, Miranda Hotel, advised that they could accommodate part-time working hours of six hours a day five days a week. Key duties entailed involvement in all aspects of hotel operations including bar, gaming, TAB, Keno, live events, staff management, staff training, customer service, and the driving of sales and promotions. Key skills included previous experience as a duty manager and a high level of customer service skills.
Under “Suitability”, Mr Little wrote: “The employer considered Mr Hackett to be a good candidate as he possesses the skills and experience demonstrated by his employment history as per the Vocational Assessment Report completed on 17 July 2024.”
Mr Little concluded that the applicant had the appropriate skills and experience to be a competitive candidate for the position.
The second contact, The Grounds at Alexandria, was seeking a full-time Hotel manager, advised that they could accommodate part-time working hours for the right candidate of six hours a day five days a week. Key duties included leading, developing and motivating the team to deliver outstanding guest experiences, overseeing all operational requirements, monitoring forecasts and adapting services and labour to meet financial targets, implementing service standards and training schedules to ensure a high-performing team. Key skills included food and beverage knowledge, minimum of three years as a venue manager or similar role, financial and business acumen to drive success, clear, effective and engaging, both written and verbal, proven leadership to motivate an lead high-performing teams, skilled in fast paced environments with the ability to develop staff or product knowledge, service skills, team culture and guest relationships.
Under “Suitability”, Mr Little wrote: “The employer considered Mr Hackett to be a good candidate as he possesses the skills and experience demonstrated by his employment history as per the Vocational Assessment Report completed on 17 July 2024.”
Mr Little considered that the applicant had good transferable skills and experience gained from his roles such as a Swim instructor (Current), Duty Manager at Chatswood RSL (eight years), Operations Manager at Gordon Social and Recreational Club (15 years) and as a labourer, concreter (one year). As a function of his role and studies, Mr Hackett has demonstrated his ability to work in fast-paced environments, with ability to develop staff in product knowledge, service skills, team culture, and general relationships.
Mr Little concluded that the applicant had the appropriate skills and experience to be a competitive candidate for the position.
The third contact, Hotel Morris Sydney, was seeking a full-time hotel manager, but advised that did offer flexible working hours for the right candidate and could accommodate the six hours a day five days a week. Key duties included overseeing operations and maintaining a highly visible presence in Front Office and guest contact areas, maintaining active liaison with housekeeping, guest relations, Food and Beverage to ensure exceptional service, maintain complete knowledge of all room types, hotel matrix and facilities, ensure optimum staffing levels in all areas of the hotel and reviewing guest lists and anticipate guest needs. Key skills included previous experience in a similar role, commitment to exceptional customer service, communication and interpersonal skills, being computer literate. The role had some functional requirements including light physical demands with lifting and carrying of the heaviest item estimated to be under 5kg and the opportunity to alter posture and take five-minute breaks to perform stretching exercises.
Under “Suitability”, Mr Little wrote: “The employer considered Mr Hackett to be a good candidate as he possesses the skills and experience demonstrated by his employment history as per the Vocational Assessment Report completed on 17 July 2024.”
Mr Little considered that as a function of his role and studies, the applicant had demonstrated his customer service, communication and interpersonal skills. Mr Little concluded that the applicant had the appropriate skills and experience to be a competitive candidate for the position.
Mr Little noted that with the option of hotel manager, the available labour market would increase should the applicant have the capacity to work full time.
Under Option 2, Property Manager, Mr Little noted that tasks may include accepting and listing property and businesses for lease, conducting inspections, advising renters on the merits of properties and businesses and the terms of lease.
Mr Little noted that according to Jobs and Skills Australia the educational standards required ranged from Year 10 and below to Post Graduate/ Graduate diploma. The percentage share of the jobs for workers who were educated to year 12 or below (that is the applicant) was 24.1% and the remaining 75.9% had certificates, diplomas or degrees. Mr Little noted that the applicant would require a Real Estate Sales Certificate of Registration to ensure he was a competitive candidate when applying for this vocation.
The typical physical/cognitive requirements of a Property Manager included sedentary to light physical demand level, occasional sitting, frequent meetings with potential leasers or tenants to inspect properties, standing and walking frequently about the office and when on site at properties, lifting and carrying likely to be in the light range but relatively frequent in the form of signage, frequent driving, and mental skills necessary include presentation, selling, product knowledge, communication and negotiation, organisation and planning.
Mr Little contacted three employers. The first contact, Signature Property Agents, advised that they were seeking a casual role to work up to 38 hours a week and could accommodate part-time working hours of six hours a day five days a week. Key duties included liaising with tenants and landlords, conducting open homes, performing routine inspections, conducting vacant inspections, business development and relationship building. The contact advised that the role would likely entail the following skills: previous experience as a property manager would be advantageous but not essential, knowledge of property or willingness to learn, organisational and time management skills and verbal and written communication skills.
The contact advised that a Real Estate Sales Certificate of Registration and driver’s license would be required.
Mr Little stated that the contact considered that the applicant would be a good candidate for this role as he possesses the skills and experience demonstrated by his employment history as per the Vocational Assessment Report completed on 17 July 2024. Mr Little concluded that the applicant had the appropriate skills and experience to be a competitive candidate for this property manager role once he met the educational requirements of the role.
The second contact, Property Network of Australia, advised that they were seeking a full- role to work eight hours per day, five days a week and could accommodate flexible working hours for the right candidate and accommodate the applicant’s capacity hours of six hours a day five days a week. Key duties included managing the operations of the Centre Management and providing administrative support to the Centre Manager, assist with property management duties, including collection of rent, arrears and payment of accounts, handle cash receipting, reconciliations, manual invoicing and manage registers for casual mall leasing, storage, parking and Public Liability compliance.
The contact advised that the role would likely entail the following skills: experience with Cirrus8 software or similar (highly regarded), proficiency in MS Office and strong general computer skills, oral and high levels of organisation, efficiency and attention to detail.
Mr Little advised that a Real Estate Sales Certificate of Registration would be required to ensure he was a competitive candidate when applying for this role. Mr Little stated that the contact considered that the applicant would be a good candidate for this role as he possesses the skills and experience demonstrated by his employment history as per the vocational Assessment Report completed on 17 July 2024.
Mr Little stated that the contact considered that the applicant would be a good candidate for as he possesses the skills and experience demonstrated by his employment history as per the vocational Assessment Report completed on 17 July 2024. Mr Little concluded that the applicant had the appropriate skills and experience to be a competitive candidate for this property manager role once he met the educational requirements of the role.
The third contact, Ross Recruitment, advised that they were seeking a full-time role to work eight hours per day, five days a week and could accommodate flexible working hours for the right candidate and accommodate the applicant’s capacity hours of six hours a day five days a week. Key duties included taking charge of a portfolio of properties, managing landlord and tenant relationships and ensuring compliance with legislation, handling maintenance request, inspections and leasing renewals with professionalism and efficiency.
The contact advised that the role would likely entail the following skills: experience or an interest in property management, communication, organisation and customer service skills.
Mr Little advised that a Real Estate Sales Certificate of Registration would be required to ensure he was a competitive candidate when applying for this role. Mr Little stated that the contact considered that the applicant would be a good candidate for this role as he possesses the skills and experience demonstrated by his employment history as per the vocational Assessment Report completed on 17 July 2024.
Mr Little concluded that the applicant had the appropriate skills and experience to be a competitive candidate for this property manager role once he met the educational requirements of the role.

Medical Evidence

Medico-legal Reports

In a report dated 24 September 2018, Dr J Brian Stephenson, consultant orthopaedic surgeon, noted that the past history included an injury at work at Gordon Rugby Club when he had tries to turn a faulty keg handle and felt a pop and pain in the lower back with persistent symptoms leading to surgery. He noted that Dr Ian Farey performed a decompression of the L5/S1 level by left sided L5/S1 discectomy in 2004. Dr Stephenson made a diagnosis of a further laminectomy decompression at L5/S1 disc right side with evidence of right-sided sciatica and some radiculopathy persisting post-surgery.
In a report dated 2 October 2019, Dr Mark Hardy, consultant in Addiction Medicine, Dual Diagnosis, Acquired Brain injury, noted that the applicant had previous left and right L5/S1 disc protrusions treated surgically in 2004 and 2017. The diagnosis included chronic lower lumbar spine pain syndrome and major depressive illness.
In a report dated 20 May 2020, Dr Hardy noted that medically, the applicant had a chronic pain syndrome of his back and legs, which had continued to trouble him since reinjuring his back in 2017. Dr Hardy considered that the physical therapies the applicant had undertaken appeared to reduce the impact of his condition such that he could work and function within his restricted duties. Dr Hardy noted that the underlying depression had been managed, and his progress was satisfactory until the COVID-19 lockdown.
In a report dated 1 November 2023, Dr Peter Moloney, consultant neurosurgeon, noted that towards the end of 2021, the applicant left Chatswood RSL because of problems associated with his work as the Compliance Officer. Dr Moloney noted that the applicant then gained employment with a friend as a Landscaper and Gardener and “on this background, on
23 August 2023, he experienced flare-ups of pain, both in his back and in his right leg with a lot of cramping in the right lower limb”. Dr Moloney noted that at the time of the flare-up of pain, the applicant had managed to stop his Endone medication but because of the intrusiveness of the pain, he needed to go back onto the medication.

Dr Moloney noted that the applicant was referred back to see Dr Ian Farey in early September 2023 and Dr Farey recommended further surgery. Dr Moloney considered that the re-exploration of the lumbar spine and partial discectomy of L5/S1 for removal of the extruded fragment in the subarticular area on the right side at L5/S1 was a reasonably necessary procedure to relieve the applicant of his back, buttock, and leg pain.
In a report dated 29 January 2024, Dr Benson Pek, consultant occupational physician, noted that the applicant completed his HSC in 1993 at age 18 and subsequently, he did concreting, arborist and plumbing work. Dr Pek noted that the applicant gave up on his plumbing apprenticeship after two years and in 1996, joined Gordon Rugby Club, a social and recreational club, as a waiter. The applicant was progressively promoted to operations manager and in around 2011, when Gordon Rugby entered receivership the applicant moved to Chatwood RSL, an affiliated business. Dr Pek noted that the applicant worked there as a hospitality manager and later compliance officer until 2021.
Dr Pek noted that after the back injury in 2017, the applicant had surgery and returned to work within two months on light duties and reached normal duties after six months. He noted that the applicant worked 32 hours a week, with permanent restrictions. Dr Pek reported that the applicant was given a new role within the Chatswood RSL as compliance officer and duties involved cleaning of the bar, food preparation areas and beer line cleaning. Dr Pek noted that the applicant occasionally worked in the cellar as a duty manager, responsible for changing over beer kegs and occasionally, he still had to receive deliveries of 60kg beer kegs. Dr Pek reported that the applicant brought the kegs in from the dock and loaded them into the cellar. The applicant left this job in 2021 due to various concerns.
Dr Pek noted that from February 2022, the applicant was employed at Hort as a landscaper and gardener. He noted that the owner of the business was a friend who was aware of his condition and provided suitable work. The applicant said that he mostly handled hand tools, watering cans, hoses and small potted plants and that most items were well below his 20kg limit. Dr Pek noted that whilst there was intermittent bending and twisting, the work was self-paced, and the applicant could take breaks anytime. The applicant said that he worked 32 to 40 hours a week, on a casual basis. Dr Pek noted that the applicant emphasised that he had gone through a “thorough process of medical assessment and clearance for the role, through his workers' compensation claim and his treating doctor”. The applicant said that he had input from his physical therapists, and an occupational therapist through the workers' compensation insurer and the various stakeholder signed-off on his new landscaping and gardening employment, via a Job-Cover Placement Programme.
Dr Pek noted that the applicant worked in this role without incident until his subsequent deterioration on 23 August 2023. Dr Pek reported that after the back operation on
12 December 2023, Mr Hackett had significant residual back and leg symptoms and had not returned to work.
Dr Pek noted under “Past Medical History”, that the applicant had a back injury in 2004 which he recovered fully from and worked normally with no symptoms or functional limitations until the injury in 2017.
In a report dated 21 March 2025, Dr Pek noted that the applicant found work as a swimming instructor in November 2024. The applicant told him that the work involved no lifting, was physically suitable and mentally beneficial. Dr Pek noted that the applicant continued to see his physiotherapist fortnightly, performing Pilates exercises, received some acupuncture and occasional tissue release for his back and legs. He noted that the applicant consulted his pain physician and psychiatrist, Dr Andrew Singer, every two months and continued the same dose of Lyrica, Celebrex for pain, Magnesium, Duloxetine, Lamotrigine and Quetiapine. Dr Pek reported that the applicant was unable to reduce the dose of the latter due to a rebound in psychological symptoms. Dr Pek noted that the applicant consulted psychologist, Ms Kym Hando, every two weeks at the Northern Pain Centre.
Dr Pek reported that the applicant’s mood has improved since returning to work. He noted that the applicant had applied for 70 to 80 jobs.
Dr Pek noted that the applicant continued to use a TENS machine for back pain with some benefit, and a calf compressor and foam roller half an hour daily, which helps leg cramps and nerve pain.
Dr Pek noted that the substantive role as a swim instructor involved providing verbal instruction with some hands-on assistance in the water. He noted that the applicant supervised children of various age groups: two to four-year-olds; four to six-year-olds; six to nine-year-olds; 9 to 11-year-olds and teens and the youngest were the most challenging to supervise. Dr Pek reported that the applicant had commenced working 10 hours a week and had progressed to 25 hours a week. He noted that the applicant worked a split shift from 9.00am to 11.30am, then 3.30pm to 7.00pm on Mondays, Tuesdays and Thursdays and on Saturdays and Sundays spent five hours straight in the water. Dr Pek noted that the applicant worked one shift a week, 3.00pm to 7.00pm at the reception desk performing administrative duties, customer service and swimming goods retail. Goods are light, in the way of swimming attire. He noted that there was no heavy lifting, and the applicant could move around and switch postures. The applicant spot-cleans with a dry mop.
Dr Pek wrote:
“His employment is on a casual basis. The employer has some awareness of his back injury and operations but remains unaware of the full extent of his condition. As a mature worker, he was asked to supervise other swimming coaches. He declined as he was not mentally ready. Mr Hackett plans to work 30 hours a week. He considered further increments unrealistic due to incremental leg cramping as his hours increased. Dr Farey and his physiotherapist also agree with the 30-hour limit, having observed him over time. Dr Farey advised him against hospitality, landscaping or labouring work.”
Under “Continuing Symptoms”, Dr Pek wrote:
“Mr Hackett has constant lower back pain of at least 2/10 severity at all times. Exacerbations occur with excessive activity, such as doing chores. The last flare up was two weeks ago, which reached about 4/10 to 5/10 in severity. He has had no major flare-ups since 2023, when pain reached 10/10.
He has mild electric leg pain, 1/10 in severity, worse on the right side.
He has episodic bilateral calf spasms which progress on to cramps. The cramps vary in duration and intensity, depending on antecedent activity levels. They can last five to 10 minutes, and reach 6/10 in pain severity. He spends 30-45 minutes daily doing stretches as prevention.
He also walks about 8000 to 10,000 steps daily, and attends the spa and sauna to reduce cramping.
Mr Hackett also reported residual psychological symptoms. His mood is generally better, and he is less prone to suicidal thoughts now. His appetite is not back to normal. He remains quite socially introverted and has not returned to his previous outgoing lifestyle”.
Dr Pek noted that the applicant sustained back injuries resulting in operations in 2018 and 2023 and had residual back pain which is the main limiting factor functionally. He noted that the applicant also had bilateral radicular leg symptoms and cramps that require significant lifestyle adjustments and exercises to limit.
Dr Pek considered that the applicant had sourced suitable work within his functional limitations, that being work as a swimming instructor since November 2024. He noted that the applicant had progressively increased his hours and found the work physically and psychologically suitable at 25 hours a week, and hopes for 30 hours. Dr Pek noted that the applicant continued to require regular medications, psychiatric, psychological and physical therapy to limit his symptoms and maintain his level of function. Dr Pek wrote:
“Based on his improved functional tolerances, I consider Mr Hackett’s new physical restrictions to be:
Avoid sitting more than 60 minutes at a time.
Avoid driving more than 60 minutes at a time.
Avoid standing or walking more than 4 hours a day.
Take stretching or seated breaks hourly.
Avoid lifting over 10kg loads.
Avoid pulling or pushing over 10kg loads.
Avoid bending below knee level.
Avoid twisting.
Requires supports when using stairs.
Avoid uneven ground.
Avoid squatting whilst carrying load”.
Dr Pek noted that the applicant is likely to require neurosurgical care in future, including lumbar fusion. He considered that the applicant would likely reaggravate, damaging his lumbar discs if lifting loads over 10kg, or if attempting to lift any load whilst squatting or twisting due to the compressive effects of lifting and squatting, and shearing effects of twisting, on the structure of the already compromised discs.
Dr Pek noted that the applicant’s swimming instructor role was water-based, with gravity reducing the loading of his spine as he moves and works. He observed that the swimming instructor role was less likely to lead to falls or shocks to the spine and the applicant was likely to work in this role until retirement age.
Dr Pek noted that a sports centre manager works in a land-based setting where he could be exposed to people bumping into him and trips and falls which can cause aggravations. Dr Pek considered that the applicant would be more vulnerable to more severe acute injuries and more wear-and-tear on the spine, and it would be less likely he would work until retirement in such a role. Dr Pek also considered that such a land-based management role is also more prone to job-creep during understaffed periods when he may be under pressure to perform heavier tasks, but this was unlikely to occur as a pool instructor. Dr Pek considered that similar reasoning can be applied to the property manager and hotel manager roles.
Dr Pek noted that the Sydney Occupational Services report dated 13 January 2022 assumed a 30 hour a week capacity which the applicant had yet to achieve, and there was no guarantee he would attain this. Dr Pek noted that it was not clear from the 2025 report of Sydney Occupational Services whether those employers can accommodate Mr Hackett’s current physical restrictions and hours (25 hours a week).

Reports of treating doctors and health professionals

In a report dated 12 March 2018, Associate Professor Allan Molloy, Senior Staff Specialist at Michael J Cousins Pain Management and Research Centre, noted that the applicant presented as distressed and functionally limited following surgery. He noted that current psychosocial stressors included an unsupportive employer. Associate Professor Molloy recommended that the applicant attend the ADAPT program.
In a report dated 21 September 2023, Dr Ian Farey, treating orthopaedic surgeon, noted that the MRI revealed the presence of a recurrent L5/S1 disc protrusion and the applicant required surgery.
In a report dated 12 December 2023, Dr Farey noted that the applicant had undergone revision right L5/S1 laminectomy, discectomy/ neurolysis on 12 December 2023.
In a report dated 28 March 2024, Dr Farey noted that the applicant initially consulted him on 10 August 2004 following a work-related injury which occurred on the 8 July 2004. He reported that he lifted a keg of beer and pulled the handle which had stuck, and he developed low back pain and. left lower limb pain. He developed a lateral disc protrusion on the left side at the L5/S1 level and symptoms failed to respond to appropriate non operative treatment. Dr Farey reported that the applicant underwent left L5/S1 discectomy on
23 November 2004 following which he had complete relief from his radicular pain. He noted that the applicant experienced very mild intermittent back pain and was able to return to normal work-related duties.
Dr Farey noted that the applicant consulted him on the 12 December 2017 when he reported that he had developed right leg pain and this pain had developed seven weeks prior to the consultation. The applicant said that he had moved kegs at work during his employment as a cellar hand at Chatswood RSL Club and while moving the kegs, developed the sudden onset of low back pain and right S1 radicular pain. Dr Farey concluded that that the applicant had developed a large right sided L5/S1 disc protrusion with sequestration as a result of his injury at work and should undergo surgery. Following surgery, he continued to experience mild back pain but minimal right lower limb pain.
Dr Farey noted that the applicant then made a graduated return to work with a lifting limit of 10kgs. Dr Farey noted that the applicant was presently certified as unfit for work. Dr Farey expected that following rehabilitation the applicant would be able to return to gainful employment but should not return to work as a landscape gardener.
In a report dated 26 May 2025, Dr Farey noted that on review on 27 May 2024 the applicant continued to experience back pain and bilateral posterior thigh pain. He reported that the applicant required narcotic medication to control his back pain and was not working. The clinical examination was unchanged. Dr Farey noted that identical symptoms and findings were present at review on the 29 July 2024.
Dr Farey noted that he had last reviewed the applicant on 24 February 2025 at which time he complained of low back pain. He noted that the applicant had undertaken work as a swimming instructor and was coping with 25 hours per week.
Dr Farey confirmed that he had read the report of Dr Pek dated 21 March 2025 and agreed with the functional limitations detailed in his report. Dr Farey expressed the view that the applicant would continue to experience these functional impairments and have limited duration of sitting, standing and difficulty bending and lifting as a result of his ongoing symptoms. Dr Farey considered that the psychological aspects of his condition would continue to require treatment. He noted that the applicant had not been able to cease his medication, and expressed the opinion that the applicant would require ongoing management in this regard. He considered that the applicant had complied with all treatment advice and does not exhibit any signs of abnormal illness behaviour or embellishment.
Dr Farey noted that the applicant had found suitable employment as a swimming instructor, which was an ideal occupation for him as it did not involve bending and lifting. Dr Farey noted that the impact of weight bearing is lessened in the pool and the applicant has been able to cope with this activity. Dr Farey expressed the opinion that the applicant should persist with this occupation.
Dr Farey disagreed with the assessment that the applicant could be employed as a Sports Centre Manager, Hotel/Motel Manager or Property Manager. He considered that each of those occupations carried a risk of lifting noting that a Sports Centre Manager may have to move equipment in the absence of other staff. He observed that this occupation would require medium demand levels with frequent sitting in offices and sitting would only tend to exacerbate his back pain. Dr Farey also noted that the roles would require high level mental skills and cognitive function which neglected the issue of his underlying depression which would impair these skills.
Dr Farey considered that employment as a Hotel and Motel Manager would involve lifting and it would also involve prolonged sitting in offices which would only serve to cause increased symptoms. In terms of working as a Property Manager, Dr Farey noted that involved significant sitting, site inspections and lifting and carrying open for inspection signs and bending to lift these materials from a vehicle. Dr Farey expressed the opinion that this was unsuitable employment for him. Dr Farey concluded that the applicant had found suitable employment which had not impacted upon his condition, and he could see no reason for him to change his current employment.
Dr Mark Cholakyan, general practitioner, in a report dated 21 April 2025, noted that he first saw the applicant on 27 October 2017 following his back injury which he sustained after moving heavy beer kegs at Chatswood RSL. He noted that Dr Farey recommended right L5/S1 laminectomy and discectomy which was carried out on 13 December 2018. Dr Cholakyan reported that the applicant was never completely free of pain since the original injury, even after surgery, and he had suffered with depression for which he was taking antidepressant medication. He noted that the applicant had also seen and continues to see a psychiatrist and psychologist for management of his mental health. Dr Cholakyan reported that the applicant suffered from frequent exacerbations of pain which were managed with physiotherapy, stretching and increased analgesia.
Dr Cholakyan noted that after the applicant resigned from his job at Chatswood RSL, he was able to find work as a landscape gardener in February 2022. He noted that the applicant continued to have mild exacerbations of back and leg pain which were managed with physiotherapy, stretches and low dose narcotic medications. Dr Cholakyan saw the applicant 28 August 2023, regarding an exacerbation of his back injury, with similar but much more severe pain than he experienced with previous exacerbations. He noted that the applicant had radicular pain in his right leg suggestive of an acute disc prolapse and a lumbar spine MRI showed an L5/S1 disc prolapse compressing the S1 nerve root, as suspected. He reported that Dr Farey recommended surgery to alleviate the back pain and neuralgia of the recurrent disc prolapse.
Dr Cholakyan noted that in November 2024, the applicant found a job as a swimming instructor. He reported that the applicant had been increasing his hours gradually and he was currently working around 25 hours per week. He noted that the applicant’s current position had a major benefit in improving his mental health, as it gave him a lot of enjoyment and fulfilment and also the buoyancy of working in the pool reduced the risk of any exacerbation or aggravation of his back injury.
Dr Cholakyan described current functional status as: “…he is capable of lifting 10kg, able to sit or stand for 60 minute intervals, as long as he has regular 5 minute breaks to perform stretching exercises. He is considered capable of working 30 hours per but has not been able to achieve this on a regular basis in his current employment”.
Dr Cholakyan expressed the opinion that although the applicant may be able to perform the duties as described for the Sports Centre Manager, Hotel Manager and/or Property Manager roles, the risk of aggravation and exacerbation of his back injury was significantly higher than his role as a swimming instructor due to reduced stress on his lumbar spine in the water. He also considered that there was more risk of deterioration in his mental health, due to the inherent increased stressful environment of the roles described.
Kym Hando, treating clinical psychologist, in a report dated 6 May 2025 noted that she had seen the applicant for 55 sessions between January 2020 and April 2025 and sessions had been more frequent during periods of high distress and pain. She considered that the applicant had shown consistent motivation to return to work and had been actively engaged in his recovery through exercise, attending pain management classes and implementing strategies between sessions.
Ms Hando noted that prior to his injury the applicant was working in hospitality and while he enjoyed the client-facing aspect of his role, he found the environment to be quite stressful due to unhealthy workplace dynamics. She noted that the applicant had left hospitality work under Dr Cholakyan’s advice due to mental health issues from bullying in the workplace. Ms Hando noted that when he was physically able, the applicant secured employment in a landscaping business and was working within the restrictions on his certificate of capacity when he unfortunately had a relapse of his original injury.

Ms Hando noted that because of disagreement as to who was liable for his treatment, there were significant delays in treatment and return to work. She noted that the applicant had struggled with depression and anxiety, which had been worsened by insurance delays, opioid medication and inability to work. She reported that following surgery and rehabilitation, the applicant’s functioning had improved, and he had been able to return to a new type of work as a children’s swimming instructor.
Ms Hando noted that the applicant found this work highly rewarding and it was also beneficial for his physical recovery as being in the water eased his pain and supported movement. She noted that the applicant found learning the material of the swimming programs challenging at the time, however, now felt confident in his ability to deliver the course content. Ms Hando noted that the level of interpersonal contact and clearly defined responsibilities suited the applicant very well.
Ms Hando reported that over the course of treatment the applicant had expressed difficulty with impulsivity, chronic suicidal ideation, interpersonal difficulties, low self-esteem, substance misuse, and problematic gambling. She noted that his depression had improved considerably in his current role, but he was still vulnerable to stressors triggering suicidal ideation and impulsive behaviour and there was a need to further stabilise his mental health. Ms Hando considered that putting the applicant in a management role at this time was likely to add additional and unnecessary stressors which would worsen his mental health.
Ms Hando noted that the applicant’s current employer had an opening for a management role recently and he considered it but decided that this would not be a good idea for him at present, due to his current functioning and capacity to manage stress. Ms Hando wrote:
“I fully support this decision. In time Mr Hackett may be able to move into such a role, however pushing this too soon is likely to result in a mental health relapse and ultimately a failed return to work. It is my opinion that Mr Hackett should stay in his current role until he gains more capacity to take on the stressors of a management role”.
In the NSW WorkCover Certificate of Capacity dated 12 February 2025, Dr Cholakyan certified the applicant as having a capacity for employment for 6 hours a day 5 days a week for the period 12 February 2025 to 11 March 2025. In the Management Plan for this period the following was noted:
“Analgesia – Palexia, Lyrica, Endone
James Cooper Physiotherapist – further sessions required (6-8) to relieve pain and stiffness and to reduce use of strong analgesia while continuing permanently modified duties.
MRI Lumbar spine - L 5/S1 disc protrusion compressing right S1 nerve root. Reviewed by Dr Farey – needs discectomy.”
Under “Referral to another health care provider” Dr Cholakyan wrote: “Dr Ian Farey – spinal orthopaedic surgeon – surgery done on 13/02/18. Reviewed 22/09/23. 12/12/23 revision L5/S1 discectomy & neurolysis. Dr Andrew Singer, psychiatrist – requires further sessions; review by psychologist required – Kim Hando. Completing Empower Pian Management (ADAPT) Program.
Restrictions on employment included “Lifting/carrying – up to 10kg, sitting tolerance – 1 hour intervals and standing tolerance 1 hour intervals.” Other restrictions included regular 5 minute breaks to perform stretching exercises.

Discussion

“Current work capacity” is defined as “a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”.
“Suitable employment” is defined in section 32A of the Workers Compensation Act 1987 (1987 Act) as follows:
“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 WorkCover 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 Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) Roche DP explained how the determination of an injured worker’s entitlement to weekly compensation differed after the 2012 amendments and that care needed to be taken when relying on older authorities. This is because section 32A of the 1987 Act eliminates a consideration of whether work is “available” and whether it is “of a type or nature that is generally available in the employment market”.
However, as Roche DP pointed out, the first question to ask is whether a worker has a “current work capacity” or “no current work capacity”. As he explained at [47]: “A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.”
In Dewar Roche DP found at [58]:
“‘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’.”
In this matter I am satisfied that the applicant cannot return to his pre-injury employment. All the doctors support such a conclusion.
The issue to be determined is whether the Work Capacity Assessment dated 26 February 2025 should be set aside.
A number of issues arise on a close reading of the Work Capacity Assessment dated
26 February 2025.
First, Mr Little does not provide any details of his qualifications or experience although he is described as a Senior employment consultant/labour market analyst consultant, Ms Vickery had a B Hlth Sc (Rehabilitation Counselling). It is not clear precisely what qualifications Mr Little has, or what his experience is and whether he has the training and expertise to write a Labour Market Assessment Report.
Second, the Labour Market Assessment Report dated 26 February 2025 refers to the vocational assessment report by Ms Amy Vickery, rehabilitation consultant, of Sydney Occupational Services dated 18 February 2022. It appears that the report by Ms Vickery was not only written about three and a half years ago but was probably written before the appellant commenced employment with Hort on 17 February 2022. I note that in a letter dated 30 November 2023, Ms Liz Shashkof, Director of Hort, stated that the applicant’s employment was “Via assistance by Amy Vickers from Sydney Operational Services Rehabilitation”. There is no reference to the employment with Hort in the report of
18 February 2022.
The Work Capacity Assessment dated 26 February 2025 makes no reference to the employment history with Hort, where the applicant continued to work as a landscaper and gardener until August 2023. Dr Pek noted that the applicant had applied for 70 to 80 jobs before he obtained the employment with Hort.
The applicant told Dr Pek that Hort was owned by a friend, and he worked for Hort until he exacerbated his pre-existing back injury in August 2023. The applicant was diagnosed with a recurrent disc protrusion and Dr Farey operated on him on 12 December 2023. The applicant was then unfit for work for a period before he trained as a children’s swim instructor and started employment in that role in November 2024.
None of this history is referred to in Mr Little’s report of 26 February 2025, apart from the fact that the applicant was currently works as a children’s swim instructor. There was no reference to employment between 2022 and August 2023 as a landscaper and gardener or to the further spinal surgery on 12 December 2023. The history taken in terms of employment and the applicant’s medical history is incomplete. None of the events since February 2022, apart from current employment as a children’s swim instructor, were taken into account in looking at his capacity. There was no reference to the number of hours a week that the applicant actually works as a children’s swim instructor.
Third, in the report dated 26 February 2025, Mr Little in each of the nine employer contact sections under “Suitability” wrote: “The employer considered Mr Hackett to be a good candidate as he possesses the skills and experience demonstrated by his employment history as per the Vocational Assessment Report completed on 17 July 2024.”
A Vocational Assessment Report completed on 17 July 2024 is not referred to at the beginning of Mr Littles’s report under the heading “Documents and reports considered” or in any other document. No Vocational Assessment Report completed on 17 July 2024 is in evidence. It appears that no such Vocational Assessment Report completed on 17 July 2024 exists.
Further, the applicant’s capacity for work as at 17 July 2024 according to the NSW WorkCover Certificate of Capacity issued by Dr Cholakyan was six hours a day, two days a week. This reflected the applicant’s capacity for work at that time in July 2024 following the revision surgery to his lumbar spine on 12 December 2023.
On balance, I am satisfied that there was no Vocational Assessment Report completed on
17 July 2024. Therefore, I have concluded that the opinion of all the contacts as to suitability was based on a non-existent vocational assessment report of 17 July 2024. I should add that an employer contact might rely on a vocational assessment undertaken in mid 2024 but could have serious reservations about relying on a vocational assessment undertaken in February 2022, nearly two and a half years earlier.
Fourth, the report of 26 February 2025 only really focuses on the applicant’s physical restrictions. However, the applicant has a secondary psychological condition which is not disputed. The applicant was referred by his treating orthopaedic surgeon for psychiatric care. He has regularly undertaken psychological treatment and sees Dr Singer regularly. The applicant has required intensive psychological and psychiatric treatment for his psychiatric comorbidities which included depression, anxiety, emotion lability, hazardous use of alcohol, tobacco, and gambling. This evidence is not challenged.
The applicant was given an opportunity to work as a supervisor in his current role but declined the opportunity. Ms Hando noted that the applicant’s current employer had an opening for a management role recently and the applicant considered it but decided that this would not be a good idea for him at present due to his current functioning and capacity to manage stress. Ms Hando stated that she fully supported the decision. She expressed the opinion that the applicant should stay in his current role until he gained more capacity to take on the stressors of a management role.
I accept that the roles described in the Labour Market Assessment Report are management roles and would require mental skills including a high degree of cognitive functioning with communication, interpersonal, administration, organisational, problem solving and decision-making capabilities. Mr Little noted that the role of a sports centre manager required a high degree of cognitive functioning. I would infer from Ms Hando’s report that the applicant is at this time unable to manage the stress which is inherent in the proposed management roles and therefore such roles are beyond his abilities.
The applicant’s psychological symptoms were not discussed with any of the employer contacts. I find it is unlikely on the balance of probabilities that the applicant fulfills such psychological criteria identified in the Labour Market Assessment Report, based upon the applicant’s evidence and that of Dr Singer and Ms Hando.
The respondent submitted that teaching children to swim is more stressful than working in the management roles identified in the Labour Market Assessment Report. I do not accept that submission, as it does not reflect the applicant’s evidence which was not challenged. The applicant stated that he enjoys working as a children’s swim instructor and it has resulted in some improvement in his mental health. The applicant rejected a role as a supervisor with his current employer because of his reduced capacity to handle stress. I accept the evidence of the applicant.
Dr Singer was of the view that the applicant’s psychiatric vulnerabilities need to be taken into account with regard to future vocational choices and he did not think that these has been taken into account at all by the insurer.
I am satisfied that Mr Little failed to take into account the secondary psychological condition when making his recommendations and assessing the applicant’s suitability for the three vocational options outlined in the report. I find that this failure is a significant shortcoming of the report.
Fifth, Mr Little did not take into account various medications which the applicant takes to address chronic pain and his secondary psychological condition. Dr Pek noted that the applicant takes Lyrica, Celebrex for pain, Magnesium, Duloxetine, Lamotrigine and Quetiapine. At times after an exacerbation, the applicant has taken narcotic medication which could impact his ability to drive. There was no consideration of the impact of such medications on his ability to function, particularly, in cognitively demanding management roles.
Sixth, the report of Mr Little was premised on the basis that the applicant can work 30 hours a week. I accept that Dr Cholakyan certified that the applicant could work 30 hours a week in his certificate dated 17 December 2024. However, I am not satisfied that this represents the applicant’s actual capacity for work.
The applicant has not actually worked 30 hours a week since the revision surgery on
12 December 2023. The applicant stated, and I accept, that in his current employment he is working 25 hours a week. The applicant stated that he had tried to work “as many hours as I can manage” but the maximum that he has managed to do was 28 hours per week and when he tried increasing this, he got leg cramping, and the pain in his back would flair up and he would not get much sleep that night, which reduced his energy and concentration at work the next day.
I am satisfied that the applicant can work 25 hours a week in his current role and in what is described as a therapeutic environment. It is possible that he would not be able to work as many hours in an office-based role and his work capacity in such a role could be less that 25 hours a week.
The employer contacts did not consider whether a candidate with the capacity to work 25 hours a week was suitable for the roles advertised. All these employers expressed their opinion as to the applicant’s suitability for the roles based on an ability to work 30 hours a week.
Seventh, I consider that there is a real risk of further injury in the vocational options identified by Mr Little and such risk was not adequately taken into account in considering whether these options were suitable. I note that after the injury in 2017, the applicant continued to work for the respondent as a compliance officer. However, Dr Pek noted that the applicant occasionally worked in the cellar as a duty manager, responsible for changing over beer kegs and occasionally, he still had to receive deliveries of 60kg beer kegs. The respondent was aware of the applicant’s injury and work restrictions, yet still required him to carry out duties that were not suitable for him. Ms Vickery had noted that the applicant continued to work for the respondent performing suitable duties. However, he felt that the duties that he was offered were not suitable and continued to aggravate his condition.
Dr Pek also considered that such a land-based management role is also more prone to “job-creep” during understaffed periods when the applicant could be under pressure to perform heavier tasks, but this was unlikely to occur as a pool instructor. Dr Singer considered that due to his injuries and his spinal pathologies, the applicant had multiple significant restrictions on his physical activity in place. Dr Singer believed that should the applicant seek employment as proposed by the insurer, it would be difficult, if not impossible, for him to maintain those restrictions, thus exposing him to the risk of further injury and/or deterioration.
The applicant does not have the necessary or recommended qualifications for a number of the vocational options, and this was not adequately taken into consideration when considering his suitability for roles or competitiveness on the open labour market. For example, the applicant would require a Real Estate Sales Certificate of Registration in order to work as a property manager. Ms Vickery noted that some roles as a Fitness and Sports Centre manager required the applicant to have a Certificate III and/or IV in Fitness and that although formal qualifications in hospitality management were not essential for a role as a hotel manager, a Vocational Education and Training course in hospitality could be useful. She noted that the applicant would need to complete a Certificate IV in Real Estate Practice or a Real Estate Course to be competitive in the labour market for a position as a property manager.
There was a failure to consult with applicant before writing the Labour Market Assessment Report and failure to consider applicant’s current role. Consultation with the applicant given the events since February 2022 including the revision surgery in December 2023 should have taken place in order to make a proper assessment of the applicant’s current suitability for the various job options.
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”. This involves considering all the medical evidence. The insurer in making their work capacity decision did not take into account the evidence about the applicant’s psychological condition.
I have found that due to the applicant’s physical restrictions coupled with his psychological condition he had a current capacity to work 25 hours a week.
I am not persuaded that the job of a sports centre, hotel/motel manager and property manager are suitable employment for the applicant. I am not satisfied that the applicant has the ability to work 30 hours a week and therefore he is unable to work the hours that the employer contacts indicated they would accommodate. Further, I am not satisfied that the applicant could manage the demands of a job in management as a sports centre manager, hotel or motel manager or property manager.
For the reasons above, the Work Capacity Assessment dated 26 February 2025 is set aside.

[2025] NSWPIC 421

20 August 2025