Hanna v Sargents Pty Ltd

DECISION OF PRESIDENT’S DELEGATE
CITATION:	Hanna v Sargents Pty Ltd [2021] NSWPIC 243
APPLICANT:	Magda Hanna
RESPONDENT:	Sargents Pty Ltd
PRESIDENT’S DELEGATE:	Parnel McAdam
DATE OF DECISION:	14 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Work capacity dispute; whether worker had capacity for suitable employment; consideration of factors in section 32A of the 1987 Act; employer identified sales assistant role as suitable; worker had limited English capacity, had only been employed in process work in Australia, had very low functional capacity, and her age restricted her; worker had been assessed at 29% whole person impairment, meaning she was a worker with high needs; Held – worker had no capacity for suitable employment, award made for weekly payments on an ongoing basis.
DIRECTIONS MADE:	*1. The respondent pay the applicant $424 per week pursuant to section 38 of the Workers Compensation Act 1987 from 30 September 2020 to date and continuing.*

Statement of Reasons

Background

Ms Magda Hanna (the applicant) was born in Egypt in 1956, completed high school there, obtained her first job there, and had children there. She came to Australia at the age of nearly 40, and a few years later commenced working her first (and only) job in Australia, with Sargents Pty Ltd (the respondent).
Ms Hanna was employed as a process worker, and after around 14 years of employment with the respondent, she suffered an injury which developed in both arms, to her shoulders, wrists and thumbs.
The first date of incapacity for this injury was 11 July 2011 and Ms Hanna has not worked since that time. She appears to have only worked two roles in her working career in both Egypt and Australia, neither of which were high skilled roles. She has been assisted to return to work through a rehabilitation provider but has been unable to secure any employment since her injury.
In 2017, a claim was made for permanent impairment, which was finalised by the issue of a Medical Assessment Certificate on 8 September 2018. An Approved Medical Specialist in the former Workers Compensation Commission assessed Ms Hanna as suffering from 29% whole person impairment, which classifies her as a “worker with high needs” as per the definition in section 32A of the Workers Compensation Act 1987 (the 1987 Act).
On 18 June 2020, the respondent issued a section 78 notice determining that Ms Hanna had capacity for suitable employment as a sales assistant. A review of that decision was sought on 17 September 2020, with the decision being confirmed on 29 September 2020. A further review was sought 20 May 2021, with the decision again being confirmed on 2 June 2021.
Ms Hanna commenced proceedings in the Personal Injury Commission on 23 June 2021. A teleconference was held on 7 July 2021, where the parties were unable to come to an agreed resolution of the dispute. The applicant seeks that the work capacity decision be set aside, and that an award be made for weekly payments from 30 September 2020 (the last date of weekly payments) until Ms Hanna reaches retirement age. The respondent asserts that the work capacity decision is correct and should be maintained.

Issue in dispute

The issue in dispute in this matter is whether and to what extent the applicant has capacity for suitable employment. There is no dispute as to the applicant’s pre-injury average weekly earnings (PIAWE), which is calculated by the insurer to be $530 per week.

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.”
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

A large amount of evidence has been filed by the parties in these proceedings. There are two major areas for consideration in section 32A when considering suitable employment – (a)(i), the nature of the incapacity etc (the medical issues), and (ii), the worker’s age, education, skills and work experience (the vocational issues). There other factors listed in the definition are still relevant, but less commonly contribute to determining whether a worker has capacity for suitable employment.
The dispute notices
The initial dispute notice was issued on 18 June 2020 and has been confirmed following internal reviews on two separate occasions. The insurer’s decision on each occasion is that Ms Hanna has capacity to work as a sales assistant in the Australian open labour market, for 24 hours per week. The insurer has calculated Ms Hanna’s capacity to earn in such a role as $24.99 per hour, or $599.76 per week, in excess of Ms Hanna’s calculated PIAWE.
The vocational review report (including labour market analysis)
The respondent relies on a vocational review report issued by Kairros. Ms Joanne Boggian conducted a vocational assessment of Ms Hanna on 25 August 2016, with a vocational review on 29 November 2018. A vocational review assessment was conducted on 12 February 2020, which apparently resulted in the report attached to the application.
The report discusses Ms Hanna’s current medical status, consistent with her certificate of capacity that was current at that time (although I note that certificate has not changed since that report). An assessment of Ms Hanna’s functional and psycho-social status was conducted, which analysed a series of activities (such as activities of daily living) and recorded reported tolerances. There a number of relevant restrictions noted in this report, including:
“Ms Hanna has limited lifting and sustained manipulation with both hands, and experiences increased pain and discomfort when lifting objects above 1 kilogram with either hand, and 2 kilograms with both hands”.
Ms Hanna’s computer skills are recorded to hover between basic and average on a range of skills, with a typing test result of 12 to 14 words per minute. Ms Hanna’s English language skills in speaking, writing, reading and listening were reported to be average, whilst her Arabic skills were said to be above average.
Vocational options were identified based on Ms Hanna’s past employment history and transferrable skills, being information officer, greeting officer and sales assistant. I note the respondent chose to rely on the last role in its section 78 notice.
The report concludes by recommending assistance in sourcing “volunteering opportunities and social events” be included in Ms Hanna’s fortnightly job seeking support sessions.
Attached to the report is a labour market analysis. The author contacted two industry contacts for each of the roles identified. For the role of sales assistant, the first contact was Specsavers. The work duties were reported to include:
(a)    face to face customer service;
(b)    counter sales;
(c)    answering questions about products and services;
(d)    making recommendations based on customer needs, and
(e)    following up on customer services in a variety of ways.
It was said that the successful candidate would have a focus on customer service, an ability to perform or quickly learn counter sales and admin duties, and a willingness to engage with customers to build rapport and ensure future business. The contact confirmed that “dependent on a standard application and interview process, Ms Hanna would be considered a suitable applicant for the role”.
Physically, occasional lifting would be required not exceeding 2 kilograms.
The second contact was Michael Hill Jewellers. The duties included counter sales, customer service face-to-face and over the phone, and answering questions and providing information about products.
The successful candidate would have a “Mature and positive attitude with life experience”, an ability to negotiate and build relationships, good personal presentation and “no jewellery knowledge or experience required”. The representative reported that Ms Hanna would be considered a suitable applicant “based on her extensive process-based experience, ability to conform to timeframes, attention to detail, and ability to complete tasks autonomously while working as part of a larger team”.
Physically, it was reported that Ms Hanna’s restrictions would not hinder her ability to perform the role.
Report of Dr Michael Ryan
Dr Ryan assessed the worker as an independent medical expert for the applicant. In his report dated 12 July 2017, prepared primarily for the purpose of a lump sum compensation claim, he assessed Ms Hanna as suffering from 38% whole person impairment. Of relevance to the current dispute, in answering a question about pain and suffering and ongoing disabilities, Dr Ryan answers:
“Ms Hanna can no longer work. She spends most of her time at home. Her capacities within the house are very limited. Fortunately, she is independent in self-care thus far. She cannot put a bra on in the usual way, sometimes she needs assistance dressing.”

Medical Assessment Certificate of Dr Wong

Dr SK Cyril Wong assessed Ms Hanna in his capacity as an Approved Medical Specialist in the former Workers Compensation Commission. He provides a Medical Assessment Certificate (MAC) dated 7 September 2018.
At the time of the assessment (which it is noted was close to three years ago, although Ms Hanna’s symptoms appear to have been very static for a long period of time), he records the following symptoms:
“Ms Hanna complains of intermittent moderate pain on movement of the right shoulder. She has restrictions on moving her right arm above shoulder height. She complains of no symptoms at the left shoulder. Ms Hanna complains of pain. The intensity is severe when aggravated in usage. She has no stiffness at the right wrist. The left wrist also has pain on usage but it is only mild. Ms Hanna complains of severe pain at the right thumb. The pain is aggravated on usage and at night. There is no stiffness at the right thumb. The left thumb has mild pain on usage but it has more stiffness.”
He does not comment on her capacity for employment. Dr Wong provides an assessment of 29% whole person impairment, which, as previously indicated, places her within the definition of a worker with high needs in section 32A of the 1987 Act.
Reports and certificates of Dr Sanaa Barich
Dr Barich has been Ms Hanna’s treating general practitioner for the period of her injury. She has provided certificates of capacity, which have not changed significantly for an extensive period. The most recent of these, attached to the Reply and dated 7 April 2021, provides that Ms Hanna has capacity for some type of work from 7 April 2021 to 6 May 2021, for 8 hours per day 3 days per week, with a lifting/carrying capacity of 1kg each hand, 2kgs both hands, a pushing/pulling ability of 30kg, and a driving ability of 30 minutes.
She comments “light duties job only, See the Vocational assessment options from KAIRROS. They are trying to get her light duty job”.
Dr Barich provides a report addressed to the applicant’s solicitor dated 27 April 2017. This appears to be answering a series of questions, although I do not have the questions before me. She records the history of Ms Hanna’s injury and the treatment undertaken since 2011. She records continuing pain and disability:
“Magda continues to have pain on and off, both wrists. She has pain holding dishes, holding a phone or writing. Her pain is worse bilaterally in her right wrist than her left. She has numbness in her right MCP which radiates to her right elbow.”
Dr Barich describes loss of amenities of life and pain when completing simple tasks. In terms of work, she records:
“Magda is keen to return to work but is restricted on types of employment that she would be able to do. She is certified for suitable duties 8 hours/day 3 days/week with lifting restrictions of 1kg each hand, 2kgs both hands, 25kg pushing/pulling and 30 minutes driving.”
This commentary is largely consistent with the doctor’s certifications provided in various certificates of capacity. Dr Barich opines that Ms Hanna has some capacity for some type of employment:
“Injuries will impact of Magda's capacity to return to work due to the abovementioned restrictions. She would be able to be employed in Retail abiding to lifting restrictions, Concierge or similar role. She has only worked in processing so retraining would be required.”
Dr Barich was faxed a questionnaire as part of the vocational assessment completed by Kairros. In each case, and for the present dispute, in the role of sales assistant, Dr Barich approved the role as suitable. This approval was provided on 2 March 2020.
Dr Barich was also contacted as part of the work capacity assessment completed by Craig Martin at the request of the applicant. I will come to the report of Mr Martin shortly. In the questionnaire, Mr Martin states “it appears the duties and functional demands of this position were not provided at that time of request for approval”. Mr Martin provides the ANZSCO description of tasks for sales assistants, which describes “light work”. It is noted that this description differs to that in the questionnaire provided by Kairros.
In response to the questionnaire provided by Mr Martin, Dr Barich said that the role was not suitable with the commentary, “please see cert of capacity dated 7.12.20 showing lifting restrictions + progress note of same date”.
Injury management consultation with Dr Derek Lee
Dr Lee was engaged by the respondent to provide an opinion due to:
“-      Confused RTW goals
-       Unexplained changes in work capacity
-       Worker not upgrading duties at work
-       Other.? Current treatment”
Dr Lee records that Ms Hanna was terminated in 2014 and has been job seeking without success, although was given an interview for a role as a carer/companion in aged care. He describes her condition as “difficulty with open jars. She finds it difficult to carry items and would usually use both hands to carry light items”, and “she is not able to lift heavy things”.
Dr Lee discussed Ms Hanna with her treating GP, Dr Barich. Dr Barich agreed that Ms Hanna was fit to work full time hours, but due to personal reasons, had chosen to work 8 hours a day, 3 days a week. Dr Lee opines that “Ms Hanna is capable of full time work with restrictions of use of left and right thumbs as tolerated”.
Report of Mr Craig Martin
Mr Martin was briefed by the applicant to provide a work capacity assessment. He provides a report dated 19 March 2021. He records that Ms Hanna has chronic pain associated with her injuries, but she is motivated to work for financial reasons.
On questioning, Ms Hanna reported a broad range of symptoms, mainly involving the use of her hands. She also reported significant functional ability restrictions. Ms Hanna has no qualifications other than a St John’s Ambulance course and internet computing skills course.
Ms Hanna’s duties as a process worker were listed, relating to the production of pies for the respondent. Mr Martin reviewed the material provided, much of which is discussed above, and commented on the other evidence concerning Ms Hanna’s capacity. Mr Martin is particularly critical of the labour market research report attached to the vocation report. He describes it as “most probably inadequate and unreliable”.
Mr Martin assessed Ms Hanna’s English language and literacy skills. Ms Hanna’s skills in reading and writing were described as basic, whilst her speaking and listening skills were basic to average – lower range. He went on to consider Ms Hanna’s functional restrictions and opined:
“In my opinion, there are no current restrictions that could be put in place which would allow Ms Hanna to return to gainful employment on the open labour market. Chronic pain, discomfort and restriction of movement associated with her bilateral hand and bilateral shoulder injuries are likely to preclude gainful employment.”
Mr Martin also considered the physical demands of a sales assistant, in accords with “Job Markets Australia”, which reported the demands to be “light”, that is lifting up to 9.1kgs. In that regard, Mr Martin opined that Ms Hanna would be unlikely to be able to meet the functional requirements to perform the duties of a sales assistant. He was also of the view that her English language skills would be considered deficient for the role of sales assistant.
In terms of her knowledge, work experience, and technological skills, Mr Martin opines that in each case she is deficient to perform the role as a sales assistant. He concludes by stating:
“Ms Hanna is not suited to working as a Sales Assistant because of her bilateral hand and bilateral shoulder injuries and disabilities.
Ms Hanna is unable to work as a Sales Assistant in a safe, productive manner, competitive manner, or at all, on the open labour market because of her bilateral hand and bilateral shoulder injuries.
Ms Hanna has no realistic prospect of gaining employment as a Sales Assistant on the open labour market.”

Statements of Ms Hanna

Ms Hanna provides two statements. The first, dated 14 June 2018, appears to have been prepared in anticipation of the lump sum compensation dispute that proceeded through the Commission and ultimately resulted in an assessment of 29% whole person impairment.
She provides an updated statement dated 17 September 2020. She describes her limited education, having completed basic English and business courses many years ago. She describes suffering from “intermitted (sic) pain and restriction of movement” in her left hand, as well as ongoing significant pain and restriction of movement in the right hand.
Ms Hanna describes her role with the respondent as production oriented, manual in nature, and very repetitive. It did not require skills expected of the roles identified. Process work is the only work she has done in Australia. In terms of the role of Sales Assistant, she states:
“My English skills are basic. English is and remains my second language. I can read and write and have general communication skills. I would not be able to describe products in a Sales Assistant role and would not be comfortable in doing this. If I had to, I would require significant amounts of training to be given to me. I would not be able to confidently answer any customer’s questions regarding products on the spot. I feel as though native English speakers would have more confidence for the role than me.”
She also describes being refused a role with Myer as a sales assistant due to lifting restrictions, and concludes by noting that she has been trying for years to find suitable employment and has not been able to.

Submissions

The parties were unable to resolve the dispute and accordingly made submissions during the teleconference, which were recorded. A summary of the submissions will be provided below.
Applicant’s submissions
The applicant commenced by noting some of the factual issues that are central to this dispute:
(a)    Ms Hanna’s age, at over 64 years old;
(b)    her upbringing in Egypt, and coming to Australia later in life;
(c)    her work history in process work, with no exposure to computers or customer service, and
(d)    the whole person impairment assessment of 29%.
The applicant submits that none of the roles identified are suitable. The applicant relied on the report of Mr Martin, which the applicant submits is detailed and considered. The applicant submits that based on this report, Ms Hanna has limited functional capacity and a lack of transferrable skills. The respondent has conjured a set of capacities that she might be able to do but this is far from the reality of the roles.
The applicant submits that the likelihood of anyone ever being able to find a job within Ms Hanna’s restrictions is non-existent. Aside from the age of the applicant, she has never worked face to face, with members of the public, or with point of sale equipment.
The applicant asserts that the work capacity decision is deficient and the insurer should reinstate payments.
Respondent’s submissions
The respondent submits that the applicant has capacity to earn in suitable employment that would reduce her weekly benefits to nil.
The insurer referred to section 43(1) of the 1987 Act and the relevant steps there in:
(a)    43(1)(a) – the applicant is medically certified to work eight hours per day, three days per week with restrictions. Her capacity has remained the same for a prolonged period of time since, 30 June 2014;
(b) 43(1)(b) – the role of sales assistant has been identified as being suitable employment in accordance with section 32A. The vocational report of Kairros and the labour market report support this, and Dr Barich approved the role of sales assistant;
(c)    43(1)(c) – the applicant has the ability to earn $599.76 per week, and
(d)    43(1)(d) – the applicant is currently being paid $424 per week, and accordingly her ability to earn is greater than her weekly payments.
The respondent referred to the vocational assessment report, noting the detailed analysis taken of the applicant’s lifting abilities, her computer skills, and her communication and language skills.
With reference to the labour market analysis, the respondent referred to the two industry contacts. It was submitted that the second, Michael Hill Jewellers, was within the applicant’s physical capacity, her English language skills were deemed appropriate, and her computer skills were found to be sufficient. Her age was not a barrier to securing employment and the role would be suitable given her process-based experience.
The respondent referred to the report of Mr Martin, on which the applicant relies, and submits that it was not made in consultation with the applicant’s treating doctor, unlike the reports of Dr Lee and Kairros.
With reference to the IMC report of Dr Lee, the respondent submits that he spoke to Dr Barich, and largely nothing has changed since that report. The respondent referred to page 2 of the report and notes that the applicant’s condition has largely unchanged for many years, and her certified capacity has remained consistent.
The sales assistant role is entirely appropriate, has been approved by Dr Barich, and falls within the physical restrictions placed on the applicant. Both the vocational report and the labour market analysis considered her functional capacity, and the work capacity decision should be maintained.
Applicant in response
In response, the applicant reiterated that the work capacity decision had been made in a bubble – it has some superficial or theoretical approval, but the reality of the situation is that Ms Hanna has no experience in the area. The theory and the reality are poles apart, and it is simply not going to happen that Ms Hanna gets a role.

Discussion

I find myself in general agreement with the applicant’s final submission in that the work capacity decision has been made in a bubble, and is theoretical, but does not reflect the reality of the situation. The respondent’s case finds little strong support in the medical evidence provided, and the support that exists has been contradicted or reconsidered in light of further evidence.
I will now discuss each of the relevant categories in section 32A in light of the evidence provided.
The nature of the incapacity
Section 32A of the 1987 Act provides that one must have regard to “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)”. There has been a significant volume of medical information provided by the parties which I have discussed above.
In general terms, Ms Hanna has suffered an injury that has resulted in severe consequences in terms of her general life, her employability, and to this day, her capacity. Her capacity as certified by Dr Barich has changed little in over seven years. She has resisted all but conservative treatment for her injuries, a decision she is entitled to make.
There is general agreement on Ms Hanna’s functional capacity. She cannot lift anything more than 1-2 kg, has real difficulty with some activities of daily living, but manages to function with adaptions in her home life. Aside from the recognised and agreed lifting restrictions, Mr Martin records factors such as “impaired ability to grip or pinch” with both hands, weakness/loss of strength mostly in the left hand, and impaired grip strength of both hands. These functional issues are directly relevant to the role of sales assistant.
Ms Hanna has been certified as suffering from 29% whole person impairment. Whilst whole person impairment is not an indicator of capacity, it tells a story of the extent of her injuries and the effect they have had on her life. That assessment recognises that she is a worker with high needs, and came very close to being a worker with highest needs (which would have made this process most likely redundant, based on section 44A(4) of the 1987 Act).
It is true that Dr Barich, the applicant’s treating doctor, approved of the roles identified in the vocational assessment report as being suitable. This initial approval was later varied, after Mr Martin clarified what “light duties” meant with further context from ANZSCO and Job Markets Australia.
Dr Lee comments that Ms Hanna is “capable of full time work with restrictions as indicated above”. This opinion is higher that certified by Dr Barich (although this appears to be more a difference of preference, noting that Ms Hanna was only working three days per week prior to her work injury). The respondent relied on the report of Dr Lee, comparing it to Mr Martin’s report on the basis that it was prepared in consultation with Dr Barich. However, the report does not particularly shed light on the situation other than in a general sense. Whilst Dr Lee comments that Ms Hanna is capable of work with restrictions, those restrictions are significant. Consistent with the applicant’s final submission, I find Dr Lee’s opinion largely theoretical.
The worker’s age, education, skills and work experience
This is the other major category for consideration in section 32A of the 1987 Act. Based on Ms Hanna’s history of seeking suitable employment and being unsuccessful for many years, it appears that this has been a significant barrier to her employment.
Ms Hanna is 64 years old. Age is a specified factor that I must consider. The vocational assessment report, and indeed all vocational assessment reports that I have read, tend to wash over this criterion. The report does not discuss Ms Hanna’s age.
In my view the question is not whether an employer would hire an individual of a certain age. There are separate and comprehensive anti-discrimination laws that prevent employers from openly discriminating against applicants on the basis of their age. The real question is how a person’s age affects their capacity to engage in suitable employment.
In Ms Hanna’s case, I think this is a genuine issue, and is tied closely to the other factors for consideration. She is towards the end of her working career and has extremely limited experience. To expect a person of Ms Hanna’s age to engage in an entirely new industry, with no experience or qualifications is a significant burden. To expect an employer to invest time and training into a person of Ms Hanna’s age, with little to no relevant experience, is a significant expectation.
In terms of Ms Hanna’s education, this is a relevant factor weighing against her capacity for suitable employment. She completed high school in Egypt and has had no relevant training or qualifications since that time. On the other hand, the role of sales assistant requires little or no relevant qualifications or education, but is based more on skills and work experience.
Regarding Ms Hanna’s skills, with no criticism intended of her, these are very limited. Her transferrable skills, which are relied on heavily in the vocational assessment report, are limited to general matters such as “working in a team”, “interpersonal skills” and “organisational skills”. These can hardly be described as attractive or high level skills required to obtain employment. They are general, low-level skills that most positions require and most employers deem generally desirable in applicants.
Relevant to the role of sales assistant, she has no relevant skills outside the general that would place her in a position to be competitive in applying for such a role. Her skills obtained as a process worker are quite specifically focussed, and whilst I have no doubt that Ms Hanna would have been good at her role, that does not necessarily translate to obtaining skills that are relevant to a broader labour market (or the specific labour market of sales assistant).
In terms of experience, I have touched on this above. Ms Hanna has only worked in two distinct roles in her employment career: as a secretary in Egypt before coming to Australia (which has no relevance now), and as a process worker with the respondent for 17 years. She has no experience as a sales assistant. Whilst the employee contacts indicate that no experience is required, I find these comments questionable, particularly given the lack of identifiable, specific transferrable skills, and Ms Hanna’s lack of relevant education in the area. Were she to have a certification in retail or hospitality, for example, then the lack of relevant work experience may be less of a factor. It has clearly impeded her efforts to obtain suitable employment in the past, as has her physical restrictions.
Occupational rehabilitation services that are being, or have been, provided to or for the worker
The parties made no specific submissions relevant to this point, so I will only briefly comment on it.
It appears that the respondent’s insurer has provided Ms Hanna with significant support over the years. She has been involved in rehab and job seeking activities with Kairros (or perhaps other providers). Ms Hanna comments on this in her statement:
“I advised the Vocational Assessor who completed the Vocational Report that I was interested in a Sales Assistant Role. However, I do not believe that I could work as a sales assistant. I always remined compliant with the my Rehab provider as I was concerned that if I didn’t than they would stop my payments. The reality is I was not confident with any of the roles that the Rehab provider was identifying for me as being suitable.”
I find this commentary telling. Ms Hanna feared that her payments would be cut off if she did not comply with the rehabilitation provider. She advised them that she was “interested” in a sales assistant role, not necessarily that she thought it suitable (in the context of Ms Hanna’s concerns about her payments being cut off, as well as the complexity of “suitable employment” as a definition, I would hesitate to rely on her own assessment that a role is suitable in any event).
This is not intended as a criticism of the rehabilitation provider who appear to have provided genuine support to Ms Hanna in an attempt to get her back to work.

Decision

This dispute concerns suitable employment. The definition in section 32A provides relevant factors to consider when determining whether the employment identified is “work for which the worker is currently suited”. I have discussed those factors above.
The respondent issued a work capacity decision which resulted in Ms Hanna’s payments being ceased from 29 September 2020. The applicant’s case is that the role of sales assistant is not suitable employment, and in essence, there is no real role for which Ms Hanna is currently suited, having regard to the factors in section 32A.
The respondent relies on its work capacity decision and asserts that Ms Hanna is capable of working as a sales assistant.
The evidence before me suggests some support for the respondent’s position. The vocational review report identified the role of sales assistant as suitable. Dr Barich, responding to a fax questionnaire, approved that role as suitable based on Ms Hanna’s restrictions. Dr Lee, an injury management consultant, suggested that Ms Hanna was capable of working full time, with the restrictions imposed by Dr Barich.
However, I agree with the applicant’s submissions that the decision has been created in a bubble. The reality of the situation is that Ms Hanna is grossly restricted in the use of her hands and arms. She cannot lift more than 1-2 kg, and has impairment in the use of her hands in other ways, including gripping and strength.
It is understandable that Dr Barich would approve the role of sales assistant when provided with the duties description from Kairros. The description fits within the restrictions placed on Ms Hanna by Dr Barich, but are specific to an individual job, and not necessarily consistent with the role of sales assistant on the open labour market. The definition of suitable employment is not necessarily satisfied by identifying one specific job that might fit within a worker’s medical restrictions. Consideration of the factors in section 32A is not a theoretical exercise. This was discussed in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, where DP Roche stated:
“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])
Although neither party referred to that decision, I think the above is on all fours with the case before me. The applicant referred to the “theory and the reality” of the case being poles apart, which aligns with DP Roche’s assessment of section 32A as not being a “totally theoretical or academic exercise”.
Whilst two industry contacts suggested that Ms Hanna would be considered a suitable applicant for that role, I am mindful of, and largely agree with the criticism of that report from Mr Martin. He states:
“The labour market research conducted by Kairros Rehab to determine suitable employment options and earnings for each suitable employment option surveyed is questionable, and most probably inadequate and unreliable, for the purposes of producing a report to be relied upon for a Work Capacity Decision for the following reasons:
a) Only two employers were contacted for each employment option which is an insufficient sample size to produce valid or reliable conclusions regarding each employment option surveyed.
b) The names of the employee representatives surveyed were not given and cannot be verified.
c) Information on who contacted the employer representatives and when they were contacted is not given.
d) Information of how the employer representatives were selected is not given. Were they randomly selected?
e) It is not known if each employer representative surveyed was suitably qualified to answer questions on the functional demands of employment options occupations.
f) It is not known how many employer representatives were surveyed. Were two employer representatives surveyed or more than two?
g) Information is not provided on the standard questions asked of employer representative.”
I share the same reservations concerning what is now a common practice by insurers in work capacity cases. Were the rules of evidence to apply, that evidence would not be admissible. In the Commission, where the rules of evidence do not apply (section 43 of the Personal Injury Commission Act 2020), one must be cautious of the weight given to such evidence.
That being said, I do not consider the evidence itself to be worthless. However, I find the report of Mr Martin more persuasive when it comes to the realities of the type of work involved as a sales assistant. He relies on the classification of work as “light”, which can be up to 9.1kgs, to make his determination. A lifting restriction of 1-2 kg is so low as to be functionally zero. There are few, if any jobs that never involve lifting of more than that weight. Ms Hanna struggles to shop and lift milk.
Putting aside her specified lifting restrictions, Ms Hanna has other functional capacity issues which I have discussed above. These are numerous and would genuinely impact or her capacity to perform a role. For example, a role at Michael Hill Jewellers was identified and said to be suitable based on Ms Hanna’s lifting restrictions. However, Ms Hanna has grip and strength issues, which would make it difficult for her to grab and clasp the fine material sold by a jeweller.
In considering suitable employment, one is not limited by information contained in a certificate of capacity, but must consider “the details provided in medical information including, but not limited to, any certificate of capacity”. Mr Martin refers to an “employability assessment report” of Sonia Judd from Rehab Works. I could not find that report in the material before me. Mr Martin provides a quote from that report that I find particularly relevant:
“Labour market research supports the fact that many jobs investigated in the occupations listed may require physical capacity in excess of these restrictions. however, some jobs were identified which can accommodate these restrictions.”
Putting aside the “medical issues”, being the nature of Ms Hanna’s incapacity, there are genuine issues concerning Ms Hanna’s vocational capacity. She was educated in Egypt and came to Australia as a mature age person. She has no formal qualifications and has only ever worked in unskilled, process-based work. She has no relevant experience as a sales assistant, or even in the transferrable skills required of such a role, such as dealing with people or experience with point of sale systems.
Again I would treat aspects of the vocational review report with caution. The Michael Hill Jewellers employer contact reportedly indicated that Ms Hanna would be a “suitable applicant” for the role (I pause to highlight the distinction between a “suitable applicant” and a person that would be suitable for the role itself, or moreso in the present context, whether the role constitutes “suitable employment”), based on:
“her extensive process-based experience, ability to conform to timeframes, attention to detail and ability to complete tasks autonomously while working as part of a larger team.”

Putting aside that this response appears to be reading from the position description or job advertisement, rather than a genuine response that would be given in a phone conversation, it is not explained how “process-based experience” is relevant to a sales assistant role. The roles are vastly different. Ms Hanna was previously employed in a factory making pies. I can see no connection between that role and selling jewellery to the general public in a retail setting.
The other employer contact (Specsavers) confirmed that Ms Hanna would be considered a “suitable applicant” for the role, “dependent on a standard application and interview process”.
Those comments, and the general thrust of the vocational report, are really where I agree with the applicant’s submission that the work capacity decision is theoretical and does not match reality. At best there is hypothetical support for two roles based on questionable (to use the words of Mr Martin) employer feedback that does not take into account the realities of Ms Hanna’s situation.
The reality of the situation is that Ms Hanna presents a prospective employee with:
(a)    significant functional restrictions to the point of barely being able to lift;
(b)    no formal qualifications outside of high school, which completed in another country;
(c)    English language skills broadly described as basic to low-average;
(d)    basic computer skills, to the extent that Ms Hanna may be able to send an email;
(e)    barely two years left in her working career before retirement, and
(f)    transferrable skills, outside of the generic, that are limited only to process-based work.
In those circumstances, the role of sales assistant, or indeed any role identified in the section 78 notice, do not fit within the definition of suitable employment. I tend to agree with Mr Martin that there are no suitable employment occupations open to her.
Accordingly, I will make an award for weekly payments in accordance with section 38 of the 1987 Act. Ms Hanna is not subject to the five year limitation in section 39 as she has been assessed as suffering from more than 20% whole person impairment.

[2021] NSWPIC 243

14 July 2021