Hakimi v Jupiter Pty Ltd
[2022] NSWPIC 69
•10 February 2022
| 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 of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Section 37 of the 1987 Act provides:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
I am determining this dispute exercising powers of the President delegated to me. Section 297(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
“When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction.”
The evidence
The Application for Expedited Assessment lodged by the applicant in this matter is somewhat brief. The attachments number only 17 pages and do not include any medical evidence. The applicant attaches two statements, the two decision notices and a letter requesting a review.
The respondent has attached the relevant evidence relied upon in making the decision to terminate Mr Hakimi’s weekly payments, including a vocational assessment report and labour market analysis, as well as physiotherapy progress reports and certificates of capacity provided by Mr Hakimi’s treating general practitioner.
The dispute notices
The section 78 notice dated 13 September 2021 determined that Mr Hakimi was fit for suitable employment working as a delivery driver for 32 hours per week. The decision relied on a certificate of capacity from Dr Hamid dated 7 September 2021, a vocational assessment report provided by Future Fit Injury Management, a labour market analysis provided by the same company, and the nominated treating doctor’s signoff on one of the proposed vocational options.
The section 287A notice dated 20 December 2021 confirms the earlier section 78 notice. That decision considered a statement signed by Mr Hakimi dated 3 December 2021. The review request was made on the basis that Mr Hakimi did not have the education, skills or work experience necessary for the role of a delivery driver.
The applicant’s statements
Mr Hakimi provides two statements. The first is dated 3 December 2021 and begins by setting out Mr Hakimi’s history of coming to Australia. He commenced work for Vicossan Global Group in 2015, working as a bag machine operator making bags. This was heavy work, performed for 50-60 hours per week.
On 23 July 2018 Mr Hakimi felt some pain in his lower back which was reported. Mr Hakimi was unable to complete his shift and attended his doctor. About one week later, he started to feel pain in his genital area. A series of tests were performed, including an ultrasound which found bilateral hernias. He was, at this stage, still working.
Symptoms continued and eventually surgery was performed on 23 June 2020. He returned to work on restricted duties, but was eventually terminated. Since the operation he still has ongoing pain in his lower abdomen, which has moved from the genital area. He still has ongoing back pain.
In terms of the role of delivery driver, Mr Hakimi says that he has not worked as a delivery driver in the past, and has not had any other training or experience in this area. He acknowledges that he has a driver’s licence but outlines pervious fines and demerits obtained. He states that he is not familiar with the Sydney area as he did not grow up here. When he leaves his local area of South Wentworthville, his wife helps him get there.
The applicant provides a second short statement dated 21 December 2021. In that statement Mr Hakimi raises issues with his rehabilitation consultant at Future Fit, and in particular the lack of training and support provided for a role as a delivery driver.
Email correspondence
Attached to the Reply is some email correspondence concerning the rehabilitation services provided to Mr Hakimi. In addition, on the day of the teleconference late evidence was filed attaching further emails in response to Mr Hakimi’s second statement. The admission of that evidence was a point of contention during the proceedings and will be discussed below.
On 10 August 2021, Ms Lopez emailed the EML claims officer confirming that Mr Hakimi had participated in a job search training course via teleconference.
On 20 October 2021, Belinda Bergie, a “Senior Career Management Specialist”, emailed the EML claims officer concerning a booking for a “YF tailored career program” made for Mr Hakimi, which was scheduled for the following day.
On 21 October 2021, Ms Bergie again emailed the EML claims officer indicating that Mr Hakimi did not answer his phone at the time of the scheduled teleconference outlined above, and that she tried calling him twice to reschedule with no luck.
On 28 January 2022, Ms Lopez emailed the EML claims officer indicating that she had been unable to contact Mr Hakimi and had left multiple voicemails which had yet to be returned. This also confirmed that he had completed more than half the job search training program and required one more session to finalise the modules.
On 1 February 2022, in response to a request from the EML claims officer, Ms Lopez provides a list of missed fortnightly scheduled appointments on 7 December 2022, 14 December 2022 and 21 December 2022. Contact was attempted on those dates, as well as 22 December 2021, 17 January 2022 and 27 January 2022 multiple times throughout the day. Eventually contact was made and Mr Hakimi explained that he hadn’t returned the calls because he was sick.
Vocational assessment report
The respondent relies on a vocational assessment report dated 10 September 2021. The report identifies three job options as suitable employment; forklift driver, crane, house and lift operator, and delivery driver. Only delivery driver was approved as an option by Mr Hakimi’s general practitioner and is the role relied on in the respondent’s section 78 notice. Accordingly, I will only refer to the discussion of that role as recorded in the report.
The report takes a history of injury consistent with that outlined above. At the time of the assessment, Mr Hakimi was certified as having capacity for some type of employment for eight hours per day, four days per week, with a lifting capacity of 13kg and a push/pull capacity of 15kg.
Mr Hakimi was recorded as being in the “basic skills range” for work readiness, being a minimal level of job seeking skill and confidence to return to work, requiring intensive assistance. A job search program was recommended.
Mr Hakimi’s duties as a machine operator, his only employment recorded, were listed. Transferrable skills were outlined.
In terms of the role of delivery driver, the duties were outlined, including determining the destinations of goods and most appropriate delivery routes, manoeuvring vehicles into position for loading and unloading, assisting with loading, verifying documents, arranging and performing unloading operations, reporting vehicle maintenance needs, and receiving payments for deliveries. No formal qualifications are required for the role (outside of a driver’s licence).
The functional demands of the role were described as “light”, with driving as a frequent to constant requirement. Relevant to Mr Hakimi, the role may require occasional squatting, crouching or kneeling, frequent requirement to lift and carry, and frequent bending to load and unload.
A number of employers were contacted regarding Mr Hakimi. Each contact confirmed that
Mr Hakimi’s physical restrictions would not hinder his ability to perform all aspects of the role. In terms of skills requirements, each employer contact differed. Skills included, for example, courier driver experience, a good or clean driving licence record, knowledge of Sydney, the ability to operate a GPS system, and communication skills.Each employer contact advised that Mr Hakimi would be a “realistic” candidate.
A number of barriers to achieving return to work were identified, including Mr Hakimi’s job seeking skills and confidence. A work trial was recommended.
Labour market analysis
A labour market analysis, dated 2 September 2021, is attached to the Reply. The start of the report is similar to the vocational assessment report. Mr Hakimi’s capacity is identical. In terms of current medical management, it is noted that Mr Hakimi is completing physiotherapy twice a week and attending his surgeon, Dr Lawrence Yuen “when required”.
The only suitable employment option identified is that of delivery driver. It appears that the remainder of the report is largely a repeat of the vocational assessment report, based on the employer contacts being identical.
Treating general practitioner documents
Dr Hamid has been Mr Hakimi’s treating general practitioner for the life of this claim. A number of certificates of capacity are attached to the reply, dating from February 2021 until the most recent certificate for the period 2 December 2021 to 29 December 2021. It certifies capacity for eight hours per day, four days per week with a lifting/carrying capacity of 13kg, a push/pull capacity of 15kg, standing, sitting, bending/twisting/squatting ability of “as tolerated” and “ok to drive”.
In terms of treatment, the following is recorded:
“continue sessions with E.P.
Awaiting approval for dietitian
CT Lumbar spine completed. Discussed scan
Seen Dr Kanawati in Nov 2021 – f/u r/v appt in feb 2022
Functional capacity increased as per EP updated EP assessment.” [sic]
Dr Hamid also provides an approval of suitable employment options. Four options were placed before the doctor. In relation to the option in question, delivery driver, Dr Hamid approves the role for “full time” and provides the following comments:
“- fit medically. Unsure of load weight.
– Yama does not prefer delivery jobs.”
In terms of the other roles, Dr Hamid did not approve those roles and provided the comment “Yama struggles with frequent bending, squatting, twisting, lifting heavy load”.
Rehabilitation progress report
A rehabilitation progress report dated 3 November 2021 authored by Natasha Lopez is attached. That report records continued low back pain, the results of an MRI scan completed on 10 July 2021, and the treating doctor’s recommendation of ongoing participation in exercise physiology.
Upcoming job seeking activities were noted to be:
“Mr Hakimi will commence intensive job seeking with Future Fit on 26 26/11/2021 on a fortnightly basis.
Future Fit will commence cold canvassing for a work trial/JCP P opportunity.
Future Fit have sourced forklift training and will be submitting a section 53 to iCare for approval.”
It was noted that Mr Hakimi was, at that time, dependant upon assistance for job seeking activities. It was recommended that Mr Hakimi continue to participate in appropriate treatment, job skills education, and job seeking assistance. Future Fit would commence cold canvassing and approach iCare for forklift training approval.
Exercise physiology progress summary
A progress report dated 22 November 2021 is provided.
It notes that Mr Hakimi’s pain has been fluctuating and inconsistent during sessions.
Mr Hakimi had not been particularly compliant with recommendations such as going on walks and home exercises.In terms of functioning, it was recorded:
“Yama still reports that he is able to conduct sitting/driving/standing without further issues. He is able to bend/lift/move items but at lighter weights and not requiring him to bend over too much. He is also able to perform most house chores (cooking, washing, cleaning – dust/mop/vacuum) but with pain.”
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
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.
The applicant referred to the labour market analysis and the employer contacts outlined therein. It was submitted that it is incumbent on the respondent to provide a work trial opportunity to ensure the applicant is physically capable of doing the role.
The applicant submits that the decision to reduce weekly payments was premature and incorrect in that it failed to note what the rehabilitation provider had said and common sense requirements of what is involved in delivery driving.
The applicant referred to the case of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) and questioned whether there was a realistic prognosis of the worker finding a real job, or whether, based on the applicant’s restrictions it would be illusory. Although the test is what the worker could do, there is necessary consideration of the issues in section 32A. The scope of his transferrable skills is limited by pain because he will be required to load and unload a vehicle.
The applicant submits his pre-injury work experience and skills were limited, and there had been no attempt to put him in a work trial. The indicators are against Mr Hakimi being able to do delivery driver work.
The applicant made reference to Carter v Parcel Post Logistics Pty Ltd [2020] NSWWCCR 11 (Carter). The applicant submitted that he did not have the same restrictions as Mr Carter, but the same illusory considerations come into play when one looks at a real rather than theoretical employer.
The applicant submits that it should be taken that he did not know about the rehabilitation appointments. The decision should be set aside and the worker continue to receive payments under section 37 of the 1987 Act.
The applicant took issue with the pre-injury average weekly earnings (PIAWE) figure and proposed a correct figure of $923.02, which, with indication, was an applicable PIAWE of $980.
Respondent’s submissions
The respondent submits that there is an absence of any medical evidence relied on by the applicant.
In terms of the liability for the back, the respondent submits that the impact of the back condition has clearly been considered as part of the work capacity decision.
The respondent submits that there is no dispute that the worker is fit to work 32 hours per week, and there is no dispute that the worker has some lifting capacity. There is no medical evidence to suggest otherwise. There is no evidence from the treating specialist to suggest that there is any significant restriction over and above what has been allowed for.
The applicant is a young man who has received significant support from the scheme, in fact an over reliance for support. This includes many attempts to provide rehabilitation assistance.
The respondent referred to the exercise physiologist report and noted that Mr Hakimi has continued to receive that support. There is no dispute as capacity, and in fact a capacity to increase that with ongoing assistance.
In terms of the rehabilitation support provided, the respondent submits there has been a general lack of motivation to return to work, supported by the comments in the exercise physiologist’s report regarding Mr Hakimi’s compliance. The evidence regarding rehabilitation needs to be taken in context with the attempts to engage Mr Hakimi in the rehabilitation process since last year. The respondent submits that they have provided enough support.
In terms of the issues raised in the applicant’s statement concerning his lack of knowledge, the respondent submits that the use of a GPS system eliminates any concern with that. The nominated treating doctor has approved the role of delivery driver – it is not an issue of what is preferred. The doctor is clear on his views regarding Mr Hakimi’s capacity.
Discussion
The definition of suitable employment in section 32A of the 1987 Act contains a list of relevant considerations when determining suitable employment.
The nature of the incapacity
I note that the title here is shorthand for the full scope of the definition is “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)”.
The evidence on this point is limited. Mr Hakimi’s certificate of capacity records that he has capacity for some type of work for 32 hours per week. He has a 13kg lifting/carrying capacity, a 15kg pushing/pulling ability, and for other activities, “as tolerated”. It is noted that he is “ok to drive”. Dr Hamid has also approved the role of delivery driver as being suitable, although he states he is “unsure of load weight”. As the respondent submits, a worker’s preference for a type of work or otherwise is not something that I can take into account for the purposes of section 32A.
The applicant has provided limited medical evidence, which I am unable to explain. There is no report from Dr Hamid, for example, explaining Mr Hakimi’s capacity in more detail. There are no treating specialist reports. I find this particularly curious given Mr Hakimi has recently undergone an MRI, attended a specialist, and has an upcoming appointment with that specialist.
The only other evidence for consideration under this heading of the definition is the progress report of Future Fit and the exercise physiology report. The progress report notes that
Mr Hakimi continues to experience low back pain and reports on the findings of an MRI (which I note it is not before me). The exercise physiology report notes improvement in lifting capacity and an ability to conduct sitting/driving/standing “without further issues”. Mr Hakimi is able to move items at “lighter weights” and can perform most house chores with pain.
In contrast, Mr Hakimi’s statement paints a picture of much greater capacity problems, including difficulties with sitting, and an increase in pain when driving, and struggling to sit down for extended periods. These restrictions are not supported in the medical evidence before me.
It is clear that Mr Hakimi has ongoing issues with his back, in particular, but also some ongoing complications from the initial hernia injury that led to surgery. The question is whether those issues prevent him from working in suitable employment as a delivery driver, and whether that assertion can be made out on the evidence before me.
The worker’s age, education, skills and work experience
Mr Hakimi is at the lower end of the skills spectrum. He has worked in one role in his time in Australia, and that role is no longer medically suitable. Mr Hakimi is a relatively recent migrant to this country, and has expressed concerns about travelling outside of his immediate local area.
On the other hand, Mr Hakimi is young and has obtained some transferrable skills in his employment. The role under discussion, delivery driver, does not require a high level of education or knowledge. Mr Hakimi possesses the most fundamental requirement for that role, being a driver’s licence. Whilst I accept that he may not be particularly familiar with metropolitan Sydney, that can easily be overcome through the use of technology. There is no evidence Mr Hakimi is unable to use or unfamiliar with a GPS system.
The employers contacted as part of the vocational assessment report all considered
Mr Hakimi to be a realistic candidate for the roles advertised.
Rehabilitation services provided for the worker
Due to the late evidence lodge by the respondent in this matter this aspect of the relevant considerations took on some additional importance that is common to work capacity disputes. There is some suggestion throughout the rehabilitation and vocational evidence that Mr Hakimi needs some vocational support or a work trial to be a realistic candidate for a role. The respondent’s evidence suggests that there have been numerous attempts to engage Mr Hakimi in the rehabilitation process, and that he has been avoidant or non-compliant. In oral evidence, Mr Hakimi suggested that he had not received those phone calls and the applicant submitted that the respondent had not complied with its rehabilitation obligations.
It does appear clear that Mr Hakimi would struggle to independently job seek, or at least be competitive when independently job seeking. On the other hand, there is other evidence (per the exercise physiologist’s report) that Mr Hakimi has not been particularly compliant with his rehabilitation program for his physical fitness. Mr Hakimi did not strike me as a deceitful person during his oral evidence, but other records indicate he may be forgetful or not particularly mindful of the appointments booked for vocational purposes. There is evidence attached to the reply that he did not attend a booked career program session and was unresponsive to attempts to contact. This is consistent with the evidence lodged in the late evidence filed by the respondent.
I am satisfied that the respondent has made reasonable attempts to engage Mr Hakimi in vocational support and rehabilitation.
Decision
In determining this dispute I am required to consider the definition of suitable employment in section 32A of the 1987 Act. Consideration of that definition must come in the context of the materials provided by the parties.
Mr Hakimi is a young man who suffered an injury which still causes him some ongoing issues. The question before me is whether those medical issues, in conjunction with his background work experience and skills, prevent him from working in suitable employment as identified in the respondent’s section 78 notice. As the respondent points out, Mr Hakimi has been strongly supported by the workers compensation scheme.
The applicant suggests that the role of delivery driver is not suitable. The difficulty facing the applicant in succeeding (noting that it is the applicant that bears the onus here) is that the medical evidence does not support that assertion. Dr Hamid has certified Mr Hakimi as fit for the role although he is “unsure of load weight”. He also notes that Mr Hakimi does not prefer delivery driver roles, although as noted above the worker’s preference is not a relevant consideration for me.
Whilst it could be said that Dr Hamid’s approval of the role is qualified, the respondent has identified real jobs that fit within the physical restrictions placed or Mr Hakimi in terms of his lifting capacity. The employer contacts have all confirmed that he would physically be able to perform the role of delivery driver.
The applicant’s submissions suggest that the requirements of a delivery driver may be outside of his functional capacity based on the requirement to load/unload delivery vehicles and the kinds of actions required in those circumstances. This submission is drawn from Dr Hamid’s rejection of the other proposed employment options on the basis that the applicant struggles with frequent bending, squatting, twisting, and lifting heavy loads. The applicant submits that those comments must be looked at on a common sense basis of what one might be expected to do as a delivery driver.
The difficulty I have in accepting that submission is twofold. Firstly, it contradicts Dr Hamid’s approval of the role of delivery driver as suitable (noting the issue concerning load weight, which I have dealt with above). Secondly, the description of the physical demands of delivery driver includes “assisting with loading” and “performing unloading operations”. It cannot be said that Dr Hamid was not aware that this would be a requirement of the role. Common sense dictates that Dr Hamid would know what would be required to load and unload a delivery vehicle. He has also not placed a specific restriction on bending/twisting/squatting, but rather “as tolerated”.
Mr Hakimi’s statement outlines some ongoing issues in his back when sitting for long periods of time or aspects of driving. Undoubtedly a role as a delivery driver would be problematic in that regard. However, once again, those statements are not supported in the medical evidence. Whilst the definition of suitable employment requires consideration of the medical evidence “not limited to” the certificate of capacity, there is a lack of medical evidence supporting the assertion made in Mr Hakimi’s statement.
The applicant referred to the case of Dewar and in particular Roche DP’s finding that the job must be real rather than theoretical:
“Therefore, the determination of whether a worker is “able to return to work in suitable employment” is not a totally theoretical or academic exercise and Mason P’s reference to the “eye of the needle” test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.” (at [60])
The role of delivery driver is not a theoretical role that involves work tasks that are totally artificial. There are identified delivery driver jobs that do not involve heavy lifting. It has not been suggested, for example, that Mr Hakimi could work as a driver whilst someone else assisted with loading and unloading the vehicle (which would be unrealistic). Not all deliveries require the lifting and manoeuvring of significant weight, as can be seen in the vocational assessment report and labour market analysis.
The applicant referred to my decision of Carter, suggesting it was on a similar basis. Firstly
I would point out (and was acknowledged by the applicant) that each case turns on its own facts and the facts in Carter are not identical to those before me. Most relevantly is the distinction between the restrictions placed on Mr Carter, which involved constant changing of position, resting every 30 minutes, and no pushing pulling or twisting. These are significantly higher than the functional capacity limitation placed on Mr Hakimi.
I do not accept that the role of delivery driver is “illusory”, as I did with the roles identified in Carter.
Ultimately Mr Hakimi has not satisfied the onus he bears. The decision of the respondent in their section 78 notice was soundly made and based on appropriate consideration of the medical and other evidence available.
Accordingly, there will be an award for the respondent.
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