Hakimi v Jupiter Pty Ltd - [2022] NSWPIC 69

DECISION OF PRESIDENT’S DELEGATE
CITATION:	Hakimi v Jupiter Pty Ltd [2022] NSWPIC 69
APPLICANT:	Yama Hakimi
RESPONDENT:	Jupiter Pty Ltd
PRESIDENT’S DELEGATE:	Parnel McAdam
DATE OF DECISION:	10 February 2022
CATCHWORDS:	WORKERS COMPENSATION- Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; whether applicant could work as a delivery driver; had worked as a machine operator; lack of medical evidence to support claimed extent of incapacity; role had been approved; respondent had attempted to provide rehabilitation services; Wollongong v Dewar discussed; Held- that role was not theoretical; award for the respondent.
DIRECTIONS MADE:	*1. Award for the respondent.*

Statement of Reasons

Background

Mr Hakimi was born in Afghanistan and came to Australia in 2015. His only employment in Australia has been with the respondent, working as machine operator in a factory making bags. He suffered an injury on 23 July 2018 which was diagnosed to be bilateral hernias. This injury eventually led to surgery on 23 June 2020.
Since the time of the operation, Mr Hakimi has complained of ongoing pain in the lower abdomen (that has shifted from the pre-surgery pain) as well as lower back pain.
On 13 September 2021 the respondent issued a section 78 notice determining that

Mr Hakimi was capable of working in suitable employment as a delivery driver. A review of that decision was sought on 6 December 2021 on the basis that Mr Hakimi did not have the education, skills or work experience to perform the role of delivery driver. The review decision determined that the decision of the insurer was maintained.

Issues in dispute

The issue in dispute in this matter is whether Mr Hakimi is capable of work in suitable employment, per the definition in section 32A of the Workers Compensation Act 1987 (the 1987 Act). The claim made is for weekly benefits pursuant to section 37 of the 1987 Act.

The legislation

As this dispute concerns suitable employment, I must consider the definition in section 32A of the 1987 Act:
“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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 69
Decision Date: 10 February 2022

CaseChat Overview and Summary

The case of Hakimi v Jupiter Pty Ltd was heard in the Workers Compensation Commission of New South Wales. The applicant, Mr Hakimi, was disputing the suitability of a proposed role as a delivery driver following a back injury. Mr Hakimi had previously worked as a machine operator. The central issue for the court was whether the delivery driver role constituted suitable employment under section 32A of the Workers Compensation Act 1987, considering Mr Hakimi's physical limitations and the employer's attempts to provide rehabilitation services.

The court examined the evidence regarding Mr Hakimi's medical condition and functional capacity, including the certificates from Dr Hamid which outlined his lifting and push/pull capacity. The court also considered the employer's efforts to provide rehabilitation services and the ongoing treatment Mr Hakimi was receiving. The applicant argued that the proposed role as a delivery driver was not suitable due to the nature of his incapacity, which included symptoms in his back and bilateral hernias. The applicant relied on the lack of medical evidence to support the claimed extent of his incapacity and the fact that Dr Hamid had approved the role with some reservations.

In its reasoning, the court noted that the proposed role had already been approved by Dr Hamid, albeit with some reservations about the load weight. The court also took into account the employer's attempts to provide rehabilitation services and the ongoing treatment Mr Hakimi was receiving. The court found that the role was not theoretical and was in line with the provisions of section 32A of the 1987 Act. The court ultimately concluded that the proposed role was suitable and awarded the respondent.

The court's final orders included a direction for Mr Hakimi to commence the role of delivery driver, with the understanding that ongoing treatment and rehabilitation support would be provided. The court also noted that any further disputes regarding the suitability of the role could be revisited if circumstances changed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was recommended that functional and lifting limits remained the same, and further exercise physiology sessions be provided to improve function and lifting capacity. Oral evidence of Mr Hakimi To resolve the issue concerning the late evidence filed by the respondent, to which the applicant was caught by surprise and had had no opportunity to respond, Mr Hickey sought and was granted leave to adduce oral evidence from Mr Hakimi. That evidence concerned Mr Hakimi’s recollection of any contact with Future Fit/Natasha Lopez regarding scheduled rehabilitation appointments that he had missed. Mr Hakimi indicated that he had no recollection of being contacted by either in December, being asked to attend appointments. He indicated that he had spoken to Ms Lopez that morning and had scheduled an appointment for Friday. He only had two messages saved from Ms Lopez – from 8 November 2021 and this Friday. Mr Hakimi indicated he would attend the upcoming appointment. Submissions were provided at the teleconference and recorded. The below is a summary of the parties’ submissions. Applicant’s submissions Considerable time was spent during the applicant’s submissions referring me to relevant evidence. I have discussed that above and do not intend to repeat the submissions outlining the evidence in great detail here. The applicant submits that the question to be answered is whether delivery driver worked performed over a 32 hour work week is suitable work having regard to the matters contained in section 32A of the 1987 Act. The applicant submits that the insurer has tried to “hive off” the hernias from the back injury, but that’s not possible because one has to consider the nature of the worker’s incapacity, and that include symptoms in the back. One can see from the certification of Dr Hamid that the issue is bilateral hernias together with back pain. The applicant outlined the certificates of capacity provided by Dr Hamid which maintain a certification on hours but with an increase in lifting and push/pull capacity. The ongoing treatment, including the CT of the lumbar spine and the upcoming appointment in February 2022 was noted. It was evident that the worker had also had an MRI scan of his lower back. It was submitted that these are necessary considerations when one takes into account the worker’s statement. In terms of exercise physiology, whilst there was some improvement noted, he was able to perform exercises without too much difficulty as long as he does not bend over too much. Ongoing exercise physiology was recommended. In terms of the final rehabilitation report, it was noted that Mr Hakimi continued to report back pain and that he is dependant upon assistance for job seeking activities. The report sets forth barriers to return to work which includes assistance in job seeking and a work trial opportunity. With reference to Dr Hamid’s approval of suitable duties, it was noted that whilst he was fit medically, the doctor was unsure of the load weight and the applicant did not prefer delivery jobs. In terms of the other jobs listed, it was submitted that the comments made regarding struggling with frequent bending etc need to be looked at in a common sense basis of what one might be expected to do as a delivery driver.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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