Husnain Pty Ltd v Workers Compensation Nominal Insurer

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Husnain Pty Ltd v Workers Compensation Nominal Insurer & others [2022] NSWPIC 627
APPLICANT:	Husnain Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Xi Yuan Weng
senior Member:	Elizabeth Beilby
DATE OF DECISION:	10 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Consideration of the correct date of injury, injury and capacity; Held – the applicant is liable to reimburse the first respondent (Workers Compensation Nominal Insurer) in the sum of $37.965.62; being the sum specified in the notice to reimburse issued pursuant to section 145(1) of the Workers Compensation Act 1987 dated 9 February 2022.
determinations made:	1. The applicant is liable to reimburse the first respondent (Workers Compensation Nominal Insurer) in the sum of $37.965.62, being the sum specified in the notice to reimburse issued pursuant to s 145(1) of the Workers Compensation Act 1987 dated 9 February 2022.

STATEMENT OF REASONS

BACKGROUND

The Workers Compensation Nominal Insurer (iCare), the first respondent in these proceedings, seeks reimbursement of $37,965.62, being compensation benefits paid under the Workers Compensation Act 1987 (the 1987 Act) in respect of payments made to the second respondent Ms Xi Weng (the claimant). The applicant seeks review of the Notice to Reimburse issued under s 145(1) of the 1987 Act dated 9 February 2022.
Ms Weng, the second respondent, was employed by the applicant at the Cococabana Restaurant as a barista. She was employed to work 20 hours per week, her normal working hours were 9am to 2pm, 5 days per week.
Ms Weng describes in her statement,[1] that she initially experienced pain in her right wrist and forearm approximately three or four years ago. She was able to cope and did not seek medical attention for it.
[1] Statement dated 23 February 2021.
After the COVID lockdown finished in May or July 2020, Ms Weng observed a larger volume of customers frequenting the restaurant. She also felt that the restaurant was short-staffed because many of the casual employees had left and found other jobs during the lockdown.
Ms Weng explains that as the restaurant was short-staffed, she often had to help with bringing food and drinks to customers in addition to her work as a barista. It was only a short time after reopening in late May or early June 2020 that she started to experience pain in her right arm, wrist and forearm.
The claimant opines that the increase in pain was due to having to make coffee constantly every day in particular having to turn the group head of the coffee machine every time she made a cup of coffee which was strenuous and caused pain. When her wrist became painful she had to use two hands to turn the group head and would also have to tap the coffee grounds with her right hand and then tap the group head with her right hand twice. This all caused strain on her wrist.
Ms Weng’s pain increased and by September-October 2020 she bought a wrist brace to wear at work and commenced acupuncture.
From November 2020 on, there are some work issues in relation to both her attendance at work and her entitlements for payment. There is no doubt, and it is accepted by all parties that there was some disagreement and discord between herself and the owner of the business.
On 5 February 2021 the claimant was formally terminated from her employment.
In relation to the payments made by the first respondent to Ms Weng, of the sum of $37,965.62, $12,978.93 relates to medical expenses with the residual amount of $24,995.69 relating to weekly compensation being paid.[2] The weekly payments were made with a range from 22/1/21 to 1/2/22.
[2] First respondent’s Reply page 74.
The applicant admits that if an injurious event occurred on 27 November 2020 it was uninsured as at that date.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the applicant is liable to reimburse the first respondent (Workers Compensation Nominal Insurer) in the sum of $37.965.62, being the sum specified in the notice to reimburse issued pursuant to s 145(1) of the 1987 Act dated 9 February 2022.

PROCEDURE BEFORE THE 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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute dated 2 March 2022;
(b)    Reply from the first respondent dated 22 March 2022, and
(c)    Late documents dated 24 March 2022, 24 May 2022, 31 May 2022 and
1 June 2022.
In addition, submissions were received from both the first respondent dated 19 August 2022 and from the applicant dated 23 August 2022 relating to the discrete issue of the correct date of injury.

Preliminary issue - date of injury

In order for the first respondent to rely upon its statutory notice, it is essential that the correct date of injury has been identified. The statutory notice identifies 27 November 2020 as the date of injury.
Section 15(1) of the 1987 Act provides:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
In the present case, the claim is mounted as a disease of a gradual process and therefore the provisions of s 15 are enlivened.
The claimant attended upon her general practitioner Dr Kwan who has provided medical certificates of incapacity in support of her claim. Indeed, on 27 November 2020, after a consultation, Dr Kwan opined that the claimant was unfit for work from 27 November 2020 to 1 December 2020 inclusive.[3]
[3] Late documents dated 24 March 2022 page 67.
The incapacity is clearly work-related. This is consistent with the notes recorded by Dr Kwan in that consultation on 27 November 2022 where Dr Kwan records “Multiple issues…..mostly related to work as a barista”. Dr Kwan diagnoses the claimant as having “lateral epicondylitis”.
Dr Kwan then issues a medical certificate couched in the following terms:
“I assessed Mrs Xi Yuan Weng on 27/11/2000.
Who in my opinion is suffering from a noninfective medical condition. And therefore is/was unfit for work/school/university from 27/11/2020 to 1/12/2000 inclusive.”
What this means is that as at 27 November 2020 Dr Kwan has certified Ms Weng as having an incapacity resulting from the injury with the respondent. It is an obvious inference on the basis of the treating notes together with the medical certificate that she was assessed as being unfit for work as a result of her work as a barista.
Dr Kwan in his following consultations and medical certificates continues to maintain his diagnoses of epicondylitis and the associated incapacity for work arising from her employment.[4]
[4] See SIRA Certificate of Capacity dated 23 December 2020, first respondent’s Reply page 82.
It appears on the bare facts that the claimant does indeed have an incapacity as certified by Dr Kwan from 27 November 2020.
The applicant’s solicitor relied on a decision of Thoroughgood [5] which was concerned with a claim for lump sum compensation.
[5] Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29.
The applicant referred to the decision as authority that a deemed date of injury, based upon the incapacity of a worker in a case of injury contemplated by s 15 of the 1987 Act, is not the actual date on which the worker became incapacitated but the date on which the claimant claimed compensation in respect of that incapacity.
The applicant’s solicitor, in its submissions, refers to paragraph 41 of Thoroughgood where it is said that Deputy President Roche placed specific emphasis on the relevant test being that of an injury being a disease or process:
“41. In rejecting this argument, Sheller JA held at 196G that ‘for the purpose of the widow’s claim, the worker’s injury is deemed to have happened at the time of his death’. His Honour said at 196B:
“In the case of the worker’s claim, the injury, being a disease of such a nature as to be contracted by a gradual process, is deemed to have happened at the time of incapacity. I have no doubt that is a reference to the incapacity for which compensation is claimed. Section 15(1)(b) provides that ‘compensation is payable by the employer in whose employment the worker is or who last employed the worker’. That means the employer in whose employment the worker is at the time the injury is deemed to have happened, or who last employed the worker before the injury is deemed to have happened; Fisher v Hebburn[1961] HCA 16; (1961) 105 CLR 177 at 196 and 199.” (emphasis added)
Deputy President then further said at paragraph 44:
“44. Mr Edwards added that Mr Thoroughgood’s claim for lump sum compensation is a claim that results from the injury that caused the incapacity. Accepting that to be so does not assist Mr Thoroughgood. The question is: what is the meaning of “incapacity” in the context of the disease provisions? If Sheller JA’s statement was the only comment on the subject, it may well be open to distinguish the facts of GIO, a death claim, from the present claim for lump sum compensation. However, his Honour’s statement that the reference to incapacity in s 15 is a reference to the incapacity for which compensation has been claimed has been considered and applied in subsequent authorities (discussed below) that are binding on the Commission.”
The applicant submits that as no claim has been made for weekly compensation in respect of the period from 27 November 2020, it is for this reason the date cannot be the deemed date of injury in the present dispute.
The applicant also submits that no workers compensation certificate of capacity has been issued in respect of the period from 27 November 2020 and the doctor’s notes refer to other co-morbid conditions the claimant may have experienced. That is the reference to incapacity for work may refer to other diagnoses that do not form the basis for the incapacity claimed.
After considering this submission on date of injury, I do not accept that the incapacity is not grounded in the workplace injury, I have outlined Dr Kwan’s opinion and there is the obvious inference that it clearly relates to the workplace injury.
The applicant asks me to rely on the authority of Thoroughgood to essentially find that the actual date of incapacity is not relevant to determination of the deemed date of injury pursuant to s 15.
I have considered the arguments raised by both the applicant and second respondent in respect of this argument. I am persuaded by the argument of the second respondent particularly in their submissions paragraphs 23 to 32. I agree that the provisions of s 15 provide an objective and readily ascertainable basis for deeming a date of injury. That is, the relevant date will be, in the case of a claim for weekly compensation, the date of incapacity or in respect of a claim for lump sum compensation, the date of the claim for lump sum compensation.
Whilst Thoroughgood is authority in relation to some circumstances in determining the date of injury, in that case there was no claim for weekly compensation and there was no basis for such a claim given there was no economic incapacity in the wake of injury.
I therefore find that the statutory notice is not defective on the basis of an incorrect date of injury.

General consideration

I will now consider the evidence filed in this matter and relied upon in submissions made by each party.

Medical evidence

Dr David Shahzad

The first respondent had the claimant examined by Dr Shahzad on 29 March 2021.[6] Dr Shahzad took a history that the claimant commenced work with the applicant in approximately 2013 as a barista. She would work between 20 to 25 hours per week and her duties included serving customers, cleaning tables and handing out cutlery and making coffee. Her hours later increased to 30 hours per week and she felt she had been overworked. Her employment had been terminated in January 2021 after receiving three warnings. She last worked in mid-December 2020.
[6] First respondent’s Reply page 123.
Dr Shahzad was provided with the compensation claim form dated 27 January 2021. The nature of the injury in that claim form was noted as carpal tunnel syndrome, RSI in the right wrist, hand and arm as well as de quervain's tenosynovitis.
Dr Shahzad also understood that there was a medical certificate dated 27 November 2020 which certified her unfit from 27 November to 1 December 2020 due to “non-infective medical condition”. Ms Weng returned to work on either 2 or 3 December 2020 and requested her employer to record her injury in the injury book.
From that time on the claimant only worked 15 hours per week.
On 17 December 2020, the claimant provided her employer with a medical certificate which noted that she was unfit for work from 24 December 2020 to 2 January 2021 which was unrelated to her alleged workplace injury. The claimant ceased work on 18 December 2020 following a disciplinary meeting. She was subsequently issued with formal warnings on
22 December 2020, 30 December 2020 and 7 January 2021. Her employment was subsequently terminated on 15 February 2021.
The claimant reported to Dr Shahzad that she had normal capacity for activities involving sitting, standing, walking, bending, twisting, lifting, squatting and kneeling however she avoided activities involving heavy lifting.
Dr Shahzad reports that he had a discussion with Dr Gia in relation to increasing the claimant’s WorkCover certificates in her next review in April. The plan was to gradually increase her working capacity to a sedentary nature and then reinstate her pre-injury duties with an aim for a return to her pre-injury working capacity.
Dr Shahzad also discussed the matter with Dr Richard Do who reported that the claimant’s carpal tunnel syndrome and de quervain's tenosynovitis had resolved and that she presented with residual right elbow pain that “will subside with self-managed exercises over the next 4 weeks”.
Dr Shahzad observed that the claimant had been certified unfit for work for a long period of time and would now benefit from vocational rehabilitation and a return to work. He concluded after discussions with her nominated treating doctor and physiotherapist that there had been a significant improvement and that she would be able to return to work. He also recommended that the claimant attend an independent medical examination with an orthopaedic surgeon who specialised in upper limbs. It was Dr Shahzad’s opinion that the claimant should be able to return to her pre-injury work capacity with only residual right-sided epicondylitis which should resolve after physiotherapy. He also suggested the claimant be offered vocational rehabilitation support.

Dr Gia and General Practitioners notes

Dr Gia is a general practitioner at the My Health Macarthur Square, at the same practice where Dr Kwan works. In a report dated 20 April 2022[7] Dr Gia writes to the claimant’s solicitors after they had requested treating notes on the applicant.
[7] Late documents from the applicant.
Instead of sending the notes, presumably by way of request after a direction for production was issued, Dr Gia wrote a report. The report states that the claimant attended upon the practice in respect of her right arm symptoms on 27 November 2020. The attending doctor on that day was Dr Kwan and her presentation was typical for lateral epicondylitis, de quervain’s tenosynovitis and carpal tunnel syndrome.
Dr Gia then assessed the claimant on 2 February 2021 and observed that she had significant dysfunction in her right arm through a combination of right lateral epicondylitis, de quervain’s tenosynovitis and carpal tunnel syndrome. Dr Gia had no doubt that the dysfunction was exacerbated by continued work while injured, due to pressures from her employer.
Dr Gia also observed that the claimant’s recovery was further impacted by a non WorkCover related issue as her mother was diagnosed with invasive bowel cancer.
Certificates of capacity have been issued from the general practitioners at My Health Macarthur Square commencing on 23 December 2020. It should be observed that the initial certificate of capacity[8] describes a date of injury as being 27 November 2020 and also indicates that that is the same date that the claimant saw that practice for the injury.
[8] Application page 83.
The initial certificates commence with no capacity to work.
The capacity to work is then changed from 12 April 2021 to 10 May 2021 to being three hours per day, two days per week.[9]
[9] See certificate dated 12 April 2021, Application page 96.
The capacity for work is then increased from 8 May 2021 to 2 June 2021 for four hours per day, five days per week.[10] It is increased for a period of some four weeks from 8 May 2021 to 2 June 2021. That certification continues until 7 June 2021 where it is increased for a full 40 hours per week.[11]
[10] Application page 98.
[11] Application page 101.
It should also be observed that in that certificate dated 7 July 2021 for a period 5 July 2021 to 26 July 2021 Dr Hasan, the certifying doctor, observes that the claimant has persistent right arm dysfunction due to delayed intervention which was slowly improving. The claimant now needed to find appropriate employment/work opportunity but was very motivated. She was considering a business course, floristry course or a potential to start her own business.
The capacity for work then decreases to some four hours per day for five days per week on 12 November 2021 for a period of four weeks.[12] It was observed that the claimant was only working some 20 to 25 hours per week over 5 days prior to the injury and could do some work but not too physically demanding or inappropriate. It was also observed that the claimant had persistent right arm dysfunction due to delayed intervention.[13]

Dr Ron Haig

[12] Application page 116.

[13] Application page 116.

Dr Haig was requested to examine the claimant and prepare a report at the request of the first respondent. He has prepared a report dated 26 May 2021.[14] Dr Haig took a history that the claimant’s pain in the right wrist commenced approximately five years before the examination when she had noticed a lump on the dorsal aspect of the wrist.
[14] Application page 128.
The claimant also said that she had been experiencing pain in the wrist on and off since that time and it was essentially activity-related, being worse when she was busy at work and improved on her days off.
On examination, there were no positive findings in respect of the elbows, and at the wrist there was no deformity and there was a full range of motion. It was observed when the wrist was in full flexion there was a lump on the dorsal aspect about the size of a pea which was clinically diagnosed as a ganglion.
Dr Haig diagnosed the claimant as having a ganglion of the right wrist, though work may have exacerbated her symptoms, the condition was constitutional in origin.
In respect of work, Dr Haig opined that the claimant did have a physical capacity for work and whilst it was true that her activities increased her symptoms, whether they must be avoided was a matter for her and her level of tolerance for her symptoms.

In respect of work capacity, Dr Haig thought no restrictions need apply although the claimant should try to avoid repetitive use of her right hand. This could mean it would probably be difficult to work as a barista in a restaurant however there should be limitations such that she works within the limits of her tolerance of her pain.
Dr Haig prepared a supplementary report dated 23 June 2021.[15] In that report Dr Haig observed that the claimant continued with intermittent wrist pain which had improved since her work was terminated in January. As such, her condition had resiled but not improved. He suggested that the claimant undergo an excision of the ganglion.

Vocational assessment report

[15] Application 135.

A vocational assessment report has been prepared by Rehabilitation Services by Altius and is dated 11 August 2021.[16]
[16] Application page 137.
In that report, an assessment was done to attempt to assess the vocational needs of the worker’s safe return to work through an analysis of transferable skills identified in the assessment.
At page 18 of that report the suitable employment is identified as being a check-out operator which is said to align with the claimant’s current certificate of capacity which was eight hours for five hours per week with bilateral combined weight of 5kg and non-repetitive pushing and pulling of 5kg. The average gross earnings are $900 for 38 hours, which is a gross hourly rate of $23.68.
The second option identified was as a customer service representative which was typically sedentary to light in terms of its physical demand levels. This would be a job which would be unlikely to manage more than 4.5kg of force constantly. It was thought that the role aligned with her current certificates of capacity and the earnings were $1,419 for 38 hours per week or $37.34 per hour.
The third role identified was that of a sales assistant which once again was observed in the report to be aligned to the current certificate of capacity and the earnings were $961 for 38 hours or $25.28 per hour.
The three potential roles or positions of employment were sent to Dr Gia by letter dated
26 October 2021.[17] In respect of a check-out operator, Dr Gai did not approve this as an option as she was concerned about the risk of the wrist and forearm action. In respect of being a customer service representative, Dr Gia approved this as an option for the claimant. In respect of being a kitchen hand, Dr Gia did not approve this option due to significant risk of injury. In respect of being a sales assistant in a position such as a pharmacy and health remedies, Dr Gia approved this as an option. In respect of being a sales assistant in a food, drinks or general groceries position, Dr Gia once again approved this as an option for the claimant however commented that the claimant would need to avoid heavy lifting or repetitive tasks.

SUBMISSIONS ND FINDINGS

[17] Application page 182.

Injury

The applicant submits that there is no evidence that anything injurious happened on 27 November 2020. It also disputes the claimant has sustained an injury by way of an aggravation of an underlying condition.
In respect of the question of injury, the first respondent asked me to refer to the claim form dated 27 January 2021.[18] The claim form makes reference to a date in respect of the claimant’s alleged condition in her upper limb. That condition is then diagnosed by the general practitioner who suggests she has carpal tunnel syndrome, lateral epicondylitis and de quervain’s tenosynovitis. The general practitioner accepts that these conditions are a result of her employment with the applicant. Dr Shahzad in his report of 21 April 2021 also suggests that the claimant has a work condition related to her employment with the applicant. This is obviously in contrast with the opinion of Dr Haig of 26 May 2021 who considers that the claimant’s condition has resolved and any ongoing symptoms are not a result of her employment with the applicant.
[18] Application page 6.
In making my determination I observe that until the opinion of Dr Shahzad on 21 April 2021 the claimant has certificates of being unfit for her work arising from her workplace injuries.
The correspondence from Dr Gia dated 20 April 2022 confirms that Dr Gia thought that
Ms Weng had sustained a work place injury as claimed. Both these general practitioners support the claimant’s claim and suggest she had a significant disability at the time.
It is quite evident that when you put all the evidence together, that is, the obvious gradual onset of pain, indicating a gradual process of injury which has resulted in the diagnosed condition of the claimant’s right upper extremity, that an injury has occurred pursuant to s 4B of the 1987 Act.
In terms of the employment being the main contributing factor to the injury, it appears to me that there is no significant evidence as to what other contributing cause there could be. As there are no competing sources of aggravation of the underlying condition, it appears to me that there should be a finding in favour of the claimant in respect of injury.
Consistent with the gradual onset of this injury or aggravation of disease process, there is a letter to the general practitioner, Dr Gia from the physiotherapist dated 20 January 2022.[19] Under “History” the report indicates that there had been a complaint of an insidious onset of right elbow pain approximately seven months ago. The initial consultation was on
[19] Reply page 121.
17 December 2020, so the onset is in mid 2020 (which is consistent with Ms Weng’s evidence).
The two respondents pointed out the opinion of Dr Haig is consistent with an aggravation of underlying condition. Dr Haig observes that the claimant’s pain increases upon use. He states that it is clearly activity-related and improves with rest. It is submitted that this is confirming that there is a mechanism of injury consistent with the activities the claimant performs.
What is quite clear is Dr Haig obviously thinks there is a constitutional problem but he also contemplates an exacerbation within the ambit of s 4B, that is an aggravation when the arm is used lifting and repetitive movements. This is not inconsistent with the case put forward by the claimant.
I am therefore satisfied that Ms Weng has sustained an injury.

Incapacity

The second respondent was critical of the opinion of Dr Haig in that he seems to suggest that if the claimant is willing to put up with symptomatology and pain then she could continue to do the job. I must say that the opinion does not assist me in assessing incapacity.
The first respondent says that the next reasonable step it could take after receiving Dr Haig’s report was to get a vocational assessment report. That vocational assessment report was obtained and is dated 11 August 2021. I agree with that submission.
After receiving the assessment I agree that Insurer was not in a position to cut the claimant’s payments off until three months after 26 October 2021 due to the operation of s 80(3) of the Workplace Injury Management and Workers Compensation Act 1998 which provides:
“3) The ‘required period of notice’ for a decision made on the basis of any reassessment by the insurer of the entitlement to weekly payments of compensation resulting from a work capacity decision of the insurer is 3 months.”
An additional seven days would then be allowed to communicate the decision to the claimant.
The claimant was paid until 22 February 2022. So far as a practical decision, if you follow the procedure through from the vocational assessment then to the NTD’s involvement and then the decision being made with a statutory requirement of three months, then the first respondent’s position has been entirely reasonable.
So far as capacity is concerned, the second respondent accepted in its submissions that the claimant’s capacity for work is certified at different levels at different times. Counsel for the second respondent reminded me of Deputy President Roche’s comments in Wollongong Nursing Home v Dewar[20], that one must bear in mind an actual role that the claimant could perform working. That is, are there are real jobs that the claimant is fit for.
[20] Wollongong Nursing Home Pty Ltd v Dewar [2014] NS CCPD 35.
The rehabilitation report provided three suggested roles the claimant could perform. The first one was that of a check-out operator. I agree with the submission made by the claimant, that someone who is right-hand dominant and experiences pain with repetitive use of the right wrist and hand, that this is an inappropriate suggestion for the claimant with her current diagnosis. Such a role would necessarily involve the repetitive use of the right hand in processing commodities at the point of sale.
In relation to the second option that is of a customer service representative, there is little evidence before me that the claimant would be able to perform that job. She had worked in the role as a barista for some 7.5 years and I am left with little knowledge as to any additional skills that she may experience. I also observe the observations made in the report as to the claimant’s level of skill so far as her written and oral skills.
The final option provided was that of a sales assistant and to some extent the same concerns would apply. Quite importantly, the same report makes comments on the claimant’s vocational skill set which to my mind when I read it does not bode well for her being able to obtain a job in those markets. This includes her verbal reasoning results which were below average and caution was given that she should not pursue jobs where there is written and verbal communication. This really does resound for obtaining real employment as a customer service operator or a sales assistant. It was also observed that the claimant has below average abstract reasoning and that she also has poor computer skills (including never having used programmes such as Microsoft Word[21]). All these factors together to my mind does not show that the claimant is employable as a sales assistant or customer service operator.
[21] Reply page 150.
It should be observed that the doctor in response to the report does respond that the claimant could perform the duties of a customer service representative. I observe that that is a response to the physical needs of the job as opposed to the claimant’s experience and training. The same observation is made regarding a sales assistant.
A submission was made by the applicant to the effect that there are some entries in the banking notes under the heading of “Taobao” which is an online selling platform that this may indicate some sort of capacity and/or employment. Having looked at the documents and the entries, I formed the view that the amounts are not consistent with any real remuneration. I therefore decline to make a finding that the claimant has employment as an online seller.
I was also reminded that the claimant was the main carer for her parents who are both very elderly. Her assistance is described as assisting with medical appointments, toileting and showering.
I understand the applicant’s submission that this could sound in capacity for employment. I decline to make any such finding as I am unaware of exactly what her duties were, how long they took and who else provided assistance to her parents. It is therefore unreliable evidence for me to ground any finding in respect of capacity and I decline to do so.

SUMMARY

For the reasons expressed in this determination, the applicant is liable to reimburse the first respondent (Workers Compensation Nominal Insurer) in the sum of $37.965.62, being the sum specified in the notice to reimburse issued pursuant to s 145(1) of the 1987 Act dated
9 February 2022.

[2022] NSWPIC 627

10 November 2022