Jafary v Direct Freight (Aust) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jafary v Direct Freight (Aust) Pty Ltd [2021] NSWPIC 529
APPLICANT:	Samad Jafary
RESPONDENT:	Direct Freight (Aust) Pty Ltd
MEMBER:	Kerry Haddock
DATE OF DECISION:	17 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Applicant’s weekly benefits terminated pursuant to sections 48 and 48A of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), for non-compliance with obligation to return to work; applicant disputed validity of notices issued by the respondent before termination of weekly benefits; respondent maintained that notices were valid, and the applicant had not made reasonable efforts to return to work in suitable employment; respondent accepted that it bears the onus of establishing the validity of the termination of weekly benefits; consideration of Cross v Secretary, Department of Education, McDonald v North Coast Area Health Service, Joseph Marmara v K Mart Australia Ltd, O’Carroll Constructions Pty Ltd v Burgess and Hines v WorkCover/HIH (Transfer Maintenance Pty Ltd) Corporation; Held - the respondent’s defence pursuant to section 48 and section 48A of the 1998 Act fails.
DETERMINATIONS MADE:	1. That the respondent’s defence pursuant to section 48 and section 48A of the Workplace Injury Management and Workers Compensation Act 1998 fails. 2. That the Commission makes no order.

STATEMENT OF REASONS

BACKGROUND

The applicant, Samad Jafary (Mr Jafary) is employed by the respondent, Direct Freight (Aust) Pty Ltd (Direct Freight) as a trailer driver.
Mr Jafary sustained injury on 3 May 2021 when a gate at the back of a trailer fell and struck his neck and left shoulder.
By letter dated 24 May 2021, the respondent’s workers’ compensation insurer, GIO, wrote to the applicant, advising him that his weekly payments would be suspended on 4 June 2021, as he had unreasonably failed to comply with his return to work (RTW) obligations under section 48 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The details provided of his failure were “not attending suitable duties at work”. He was advised that to avoid the suspension of his weekly payments, he had to attend suitable duties available to him by 4 June 2021.
By letter dated 3 June 2021, GIO advised the applicant that it had accepted liability for his injury, and it could “help” him with treatment expenses and weekly payments. His pre-injury average weekly earnings (PIAWE) were assessed at $1,647.95 per week.
The applicant’s solicitors wrote to GIO on 24 June 2021, 1 July 2021 (when they also sent an email) and 5 July 2021, regarding what he alleged to be an underpayment of his weekly payments.
On 7 July 2021, “Emma” (Jackson) of GIO sent an email to the applicant’s solicitors, advising that she was awaiting a response from the respondent, in order to determine what Mr Jafary had been paid over the period when he was fit for suitable duties but did not attend work. In relation to the period when the applicant returned to work but there was a “clock in/out issue”, Ms Jackson advised that this would need to be addressed with the respondent, as it was out of GIO’s control.
Ms Jackson was unaware of a missing wage payment from 21 June 2021 to 2 July 2021, so had requested information from Direct Freight as to why it was unpaid and when it would be paid. She stated that the applicant left work and did not provide an explanation until an unfit certificate was provided by another general practitioner.
By letter dated 26 July 2021, GIO again wrote to the applicant, advising him that his weekly payments would be suspended on 9 August 2021, as he had unreasonably failed to comply with his RTW obligations under section 48 of the 1998 Act. The details of his failure were “Attend suitable duties made available to you by your employer”. He was advised that to avoid the suspension of his weekly payments, he had to attend suitable duties at work by 9 August 2021.
On 31 July 2021, the applicant emailed Isabella Snaidero, described as a Consultant, Workforce Strategies, of Mercer Marsh Benefits. He advised that there was a positive case [of Covid 19] at Warwick Farm, and therefore he “got told too [sic] stay home and safe.”

10.On 4 August 2021, Ms Jackson emailed Ms Snaidero to advise that the applicant had emailed her to advise he had not been attending work due to Covid cases there and having been told to stay home. She would clarify who had advised him of this, but “just confirming with you that this is not the case?”
11.Ms Snaidero responded on 4 August 2021 that no one at the respondent had contacted the applicant to notify him that he was a close contact. They had moved his suitable duties to Kemps Creek to maintain them. Ms Snaidero attached a RTW plan that had been provided to the applicant. She stated that the applicant had contacted her “to state the same”. He was not at the depot on the dates of exposure, which were 22 July 2021 and 23 July 2021, having last attended on 18 June 2021. She had asked him to return to work at Kemps Creek, where suitable duties were available, but he had declined, stating he was not an essential worker. She asked “Where are we with the non-compliance? Can we terminate wages?”
12.Ms Snaidero emailed the applicant on 4 August 2021, advising that he was not at the site during the exposure times, and therefore the message (assumed to be that about staying home and safe) did not apply to him. His suitable duties plan “has you at Kemps Creek. As per your obligations under Workcover [sic], you need to make a reasonable effort to return to work.”
13.The applicant responded to Ms Snaidero on 4 August 2021 that he was not an essential worker due to the outbreak of Covid 19 “and also positive case in Direct Freight as a health order you need comply with health order”.
14.On 6 August 2021, Ms Jackson emailed the applicant. She advised that she had confirmed with the respondent that he was not a close contact, of which she believed he had already been notified. Direct Freight had advised that he was considered an essential worker and it had suitable duties for him at Kemps Creek. It had provided him with the attached RTW plan.
15.Ms Jackson advised the applicant that as he had not attended suitable duties, he was in breach of his injury management plan (IMP). Should he not attend before the review date of 9 August 2021, his wages would be suspended until he attended. If he was unable to attend work due to a separate medical condition, or was concerned, Ms Jackson encouraged him to seek treatment and obtain a non-WorkCover certificate for his absence.
16.By letter to GIO dated 9 August 2021, the applicant’s solicitors advised that the respondent considered him to be an essential worker and had required him to attend Kemps Creek to undertake administrative duties.
17.The applicant’s solicitors advised that Mr Jafary was seeking clarification from the GP as to why he was signed off as being suitable for light office duties, noting that his training and experience “seem to suggest that it would be unreasonable for him to be suited for office duties, he was a driver”. They requested GIO to clarify how travel arrangements would be facilitated, as the applicant did not own or have access to a car. They again raised the issue that he claimed to have been underpaid.
18.On 10 August 2021, the applicant’s solicitors sent an email to GIO regarding arrangements for an independent medical examination (IME). They also referred to a telephone discussion, noting that GIO had a wage schedule up to 4 July 2021 that corresponded with payslips provided by the applicant. It sought confirmation by the end of the week as to whether GIO was able to compel the respondent to reimburse the applicant for underpayments, given that GIO had provided it with the funds, with the intent that appropriate payments, pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act), be made to the applicant.
19.On 10 August 2021, Ms Jackson emailed the applicant’s solicitors to advise that the applicant had not attended suitable duties provided by Direct Freight at another site (Kemps Creek). “As per the warning letter”, his wages had been suspended effective 9 August 2021; and as there was no driving restriction on his certificate of capacity (COC), GIO or Direct Freight were not responsible for paying the costs of him getting to and from work. He had previously reported not being able to drive to work as the reason for his non-attendance. His current COC stated that he was OK to drive a car. Any wages issues were between him and the respondent, and “we have been advised not related to his workers’ compensation claim.”
20.On 14 September 2021, GIO issued the applicant with a notice pursuant to section 78 of the 1998 Act. It advised that GIO was applying section 48A(1)(c) of the 1998 Act, because he had not made reasonable efforts to return to suitable employment or pre-injury employment.
21.The notice stated that GIO had determined that “failure to make reasonable efforts to return to work in suitable employment, which are the requirements of your return to work obligations as set out in section 48” (of the 1998 Act) [sic]. It went on to state that the applicant had been issued with an initial compliance letter on 26 July 2021, for failure to return to suitable duties made available by Direct Freight. The RTW plan had been supported by his treating doctor, Dr Victor Wei, on 24 June 2021.
22.GIO advised the applicant that it did not consider he had complied with his RTW obligations under section 48 of the 1998 Act. It had therefore terminated his entitlement to weekly payments for non-compliance with his obligation, under section 48A of the 1998 Act.
23.The applicant lodged an Application to Resolve a Dispute (the Application) on 14 September 2021. He claimed that on 3 May 2021 he was dropping off pallets at Bankstown Airport. He went to the back of the trailer to remove a gate, which was not secured by a chain. The metal gate, the weight of which he estimated as approximately 25 kg, fell onto his neck and left shoulder. He picked up the gate, placed it on the trailer, and called his supervisor to report the incident.
24.The applicant claimed weekly benefits compensation from 3 May 2021 to date and continuing, pursuant to sections 36 and 37 of the 1987 Act.
25.The respondent lodged its Reply on 6 October 2021.

ISSUES FOR DETERMINATION

26.The parties agree that the following issue remains in dispute:

(a) whether the notice given to the applicant under section 48 of the 1998 Act enlivens section 48A of the Act.

PROCEDURE BEFORE THE COMMISSION

27.The matter was listed for conciliation/arbitration hearing by telephone on 30 November 2021. Mr Grimes of counsel, instructed by Mr Gutierrez, appeared for the applicant, who was present. Mr Carney of counsel appeared for the respondent, instructed by Ms Blake. Ms Leneve of GIO was also present.
28.The parties agreed that, should I determine that the notice issued to the applicant is not valid, and the respondent has not discharged its onus, then no further determination is required or permitted, the respondent not having issued a notice disputing liability or made a work capacity decision.
29.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

30.The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application and attachments;
(b)    Reply and attachments;
(c)    Application to Admit Late Documents dated 24 November 2021 and attachments, filed by the respondent and admitted by consent, and
(d)    Application to Admit Late Documents dated 30 November 2021 and attachments, filed by the respondent and admitted by consent.

Oral evidence

31.There was no application by either party to cross-examine any witness or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Samad Jafary

32.On 7 September 2021, Mr Jafary stated that he was born in Afghanistan. He did not go to school there and in or about 1999 he immigrated to Australia.
33.In Australia, Mr Jafary underwent a course at TAFE, which took approximately one year, and obtained a Certificate IV in Computing and Communications.
34.Since 2008, the applicant has been a truck driver, obtaining his standard driver’s licence in 2002 and his heavy vehicle licence, which is still current, in 2008. For the past few years, he had worked through various job agencies and other organisations, but primarily had always been a truck driver.
35.Mr Jafary commenced work for the respondent, which was based in Warwick Farm, in October 2020, having made an online application. His supervisor was “Joe”. He has referred in his statement to his earnings and the availability of overtime. His hourly income was approximately $35.50.
36.The applicant’s usual working hours were from 9.00 am to 5.30 pm. The truck usually contained pallets of goods, and he drove around areas and suburbs around Eastern Creek and Warwick Farm, picking up goods from warehouse to warehouse.
37.The applicant provided a description of the injury that is consistent with the Application. When he reported the injury, he was told to return to Warwick Farm. He was sent to a doctor (Dr Wei) at 117 Elizabeth Drive, Liverpool, where he was examined and directed to rest and take the day off.
38.The doctor certified the applicant as unfit to drive a car or truck and certified him unfit to work. He did not work for two weeks, although his employer asked him to return to work and undertake light duties. He was not paid for the first two weeks he had off.
39.In the third week after the injury, the applicant returned to work. He was not paid, although he attended work and undertook light duties, but the respondent declined to pay him, as it complained there was an issue with him logging on or off. He was paid on 30 May 2021 and 6 June 2021, although he was underpaid on each occasion. He was also paid on 13 June 2021, having worked for 40 hours that week on light duties.

40.The applicant’s last day of work at Warwick Farm was on 18 June 2021. There was a confirmed case of Covid 19 at the warehouse and he did not feel comfortable attending work there. Subsequently, the respondent instructed him to attend work at the Kemps Creek warehouse, in an administrative role, while he was on workers’ compensation, because work was no longer available at Warwick Farm.
41.The applicant resides at Fairfield West, and the Kemps Creek warehouse is located at 29 Ottellia Road, Kemps Creek. “As discussed with the insurer”, it was not possible to work at Kemps Creek as he does not have a car and there is no accessible public transport to the warehouse, which is in an industrial area.
42.The applicant had not been reimbursed for missed payments and underpayments, despite his solicitors raising the issue with the insurer on multiple occasions. He had provided GIO with all his payslips from the respondent.

Medical Evidence

Dr Victor Wei – General Practitioner

43.Dr Wei began treating the applicant on 3 May 2021.
44.On 3 May 2021, Dr Wei sent an email to the respondent and several other recipients. He noted that the applicant had presented with a left shoulder and neck injury sustained at work that day. He was struck on the left neck and shoulder by a falling truck gate.
45.Dr Wei opined that the applicant had a left neck and shoulder soft tissue injury with muscle spasm. Typically, he would expect the injuries to resolve in one to two weeks. The applicant had some features of pain-focused behaviour, which may prolong the recovery time. Dr Wei did not say what these features were, and, given that he saw the applicant on the day of the injury, it is at least possible, and I would suggest likely, that Mr Jafary was pain-focused because he was in pain.
46.The applicant was to start physiotherapy immediately with Fitcare, transitioning to the onsite physiotherapist later in the week. He was able to perform light duties but should not drive, as he had reduced neck rotation.
47.Dr Wei’s first COC in evidence is dated 6 May 2021. It records that the applicant was first seen on 3 May 2021. He had been struck on the “(L)” (left) neck and shoulder by a falling truck gate. The diagnosis was recorded as left neck and shoulder soft tissue injury and muscle spasm.

The applicant was certified as fit for normal hours and days of work, from 6 May 2021 to 14 May 2021. Dr Wei restricted him to lifting no more than 2 kg with his left arm; no pushing or pulling with his left arm; and no driving. His treatment was to consist of analgesia and physiotherapy, of short term duration.

49.Dr Wei sent an email to Mr Austin Smith, the respondent’s National WHS Advisor, and others, on 6 May 2021. He advised that the applicant reported minimal improvement. He had not been back to work as he was not medically fit to drive. He stated he had not been offered any transport to get to work. Dr Wei opined that he may perform light office duties but was not medically safe to drive. He had explained to the applicant that he would need to negotiate alternative transport arrangements with the respondent.
50.Mr Smith responded to Dr Wei on 6 May 2021. He asked if the applicant was able to travel by public transport. He advised that the applicant lived only 600 metres from the nearest train station and there was a 10 minute walk from Warwick Farm station to work. The applicant had been instructed to do so in lieu of the “no driving” restriction but refused as he stated he could not walk due to pain in his shoulder. Mr Smith found this to be unreasonable. He asked Dr Wei to “elaborate on this”. Dr Wei answered that the applicant’s shoulder and neck injury did not render him unfit to take public transport to work. He was fit to walk those distances and catch public transport without restriction.
51.On 14 May 2021, Dr Kent Nguyen (of the same practice) certified the applicant as fit for the same hours and days from 14 May 2021 to 24 May 2021. His lifting capacity was a maximum of 5 kg with his left arm overhead, and 15 kg floor to chest. His pushing/pulling ability was 10 kg and he could bend/twist/squat and drive as tolerated.
52.On 18 June 2021, Dr Wei certified that the applicant may drive a car, but “no truck driving currently”. The other restrictions remained the same.
53.Dr Wei emailed the respondent and others on 18 June 2021. The applicant had reported worsening pain “since last week”. He had been struggling with his light duties and complained that the work was harder than his pre-injury work. He was “unfortunately quite resentful of his current situation and wants to be certified unfit”.
54.Dr Wei referred to the MRI of the applicant’s cervical spine, which I will discuss below. He believed there was no evidence of any significant or serious pathology. He had explained the findings to the applicant and discussed that there was no structural injury that would prevent him performing his light duties. Dr Wei explained that his pain was due to muscle spasm and was exacerbated by guarding and pain-avoidant behaviour. He needed to “push through the pain” and accept that there was no serious injury and it was safe for him to continue.

55.Dr Wei was concerned that the applicant was heading for a poor outcome, due to yellow flags. He would refer him to Dr van Gelder, extend his certificate, and see him in one week.
56.Dr Wei referred the applicant on 18 June 2021 to Dr James van Gelder, orthopaedic surgeon. The referral stated that Mr Jafary had worsening neck and shoulder pain. He had ongoing pain and stiffness of the neck and was “now” complaining of paraesthesia down the left arm. MRI had demonstrated no significant structural injury.

Dr Amin Mutasim and Dr Anwara Begum – General Practitioners

Although it is not entirely clear from the records, it appears that the applicant first consulted the practice on 25 June 2021, as Dr Mutasim has on that date recorded a history of the injury and implemented a treatment plan.

Dr Mutasim recorded that the applicant had pain in his left shoulder following the fall of a gate on the left side of his neck and shoulder on 3 May 2021. He spoke to “James”, the applicant’s physiotherapist, who said the applicant was improving, and “will do again next Wednesday”. He also spoke to “Miss Emma”, (Ms Jackson) the applicant’s case manager and discussed his treatment plan. He requested approval for x-ray and ultrasound of the left shoulder and referral to a neurosurgeon.

On 30 June 2021, Dr Mutasim recorded that the applicant’s left shoulder and neck pain were improving. He had been seen by the physiotherapist that day. He had not had the x-ray and ultrasound and was advised to do it as soon as possible. Dr Mutasim issued a COC that included a diagnosis of left side of the neck and left shoulder soft tissue injury, C7 – spinous process deformity. The applicant was certified with capacity to work four hours a day, five days a week, from 1 July 2021 to 7 July 2021. He was restricted to a light office job, with no cleaning, no repetitive bending of his neck (and in fact was to avoid repetitive bending) and no lifting with his left arm above shoulder level. His lifting/carrying capacity was up to 2 kg, with standing and sitting as tolerated. He had no pushing/pulling ability and could drive only a car.

The applicant underwent investigations, which were reviewed by Dr Mutasim on 6 July 2021. The x-ray showed a calcified density, of uncertain aetiology, lying just adjacent to the neck of the humerus. It might have been a calcified loose body, its appearance not being typical of a fractured fragment. A CT scan “might be of value”. The impression gained from the ultrasound was of a bursal surface partial tear of the supraspinatus tendon. Tendinopathy of the subscapularis tendon was noted.

Dr Mutasim recorded that the applicant did not want a CT of his left shoulder. As his pain was improving, he wanted to wait a couple of weeks. He was to see Dr van Gelder on 3 August 2021. Dr Mutasim issued him with a COC in similar terms to that issued on 30 June 2021. The applicant had capacity for work from 7 July 2021 to 16 July 2021, for 20 hours per week. That was repeated in a COC issued on 16 July 2021, covering the period from 17 July 2021 to 23 July 2021.

On 23 July 2021, Dr Begum recorded a telephone consultation. The applicant was “on work comp”. His usual doctor had not come in that day. Dr Begum issued a COC that recorded “situation has not changed or improved. Need to continue the same”. It covered the period from 24 July 2021 to 30 July 2021.

Dr Mutasim recorded on 30 July 2021 that the applicant was improving. He was not going to physiotherapy due to the Covid situation. He was avoiding lifting with his left hand. Dr Mutasim issued a COC with the same restrictions, certifying the applicant with capacity to work for 20 hours per week, for the period from 31 July 2021 to 19 August 2021.

On 19 August 2021, Dr Mutasim issued a COC that was consistent with those previously issued. It again noted that the applicant’s situation had not changed or improved. He had capacity to work for 20 hours per week from 20 August 2021 to 9 September 2021.

The last COC in evidence was issued by Dr Mutasim on 9 September 2021. The applicant was waiting to see a neurosurgeon, with the appointment at the end of September due to Covid. He was not attending physiotherapy, also due to Covid. His restrictions remained the same until 4 October 2021.

Dr James van Gelder – Neurosurgeon and Spine Surgeon

Dr van Gelder reported to Dr Wei on 8 October 2021. He noted that the applicant was suffering from left cervical radicular symptoms.

Dr van Gelder recorded a consistent history of the mechanism of the injury, although he has recorded the date as 5 May 2021. The applicant had ongoing neck and shoulder pain. He had tried physiotherapy and medication and had been off truck driving work.

The applicant complained of unmanageable ongoing left-sided neck pain. He had intermittent paraesthesia in the third, fourth and fifth fingers. Neck pain could radiate into his trapezius and suprascapular area and down his arm and into his hand. His left arm felt weaker.

Dr van Gelder recorded that the applicant was tender in the cervical spine. Extension and rotation provoked radicular symptoms. He was tender in the shoulder, with restricted range of motion. He had decreased strength in his left arm and decreased triceps jerk on the left.

Dr van Gelder noted the results of the MRI of the applicant’s cervical spine. This showed a disc herniation at C6/7 in the neural foramen. It was not large but was impacting the C7 nerve. The applicant had moderate foraminal stenosis caused by the disc herniation. He also had disc degenerative changes, consistent with his age, at C4/5, C5/6 and C6/7.

Dr van Gelder opined that the applicant had neck pain and left cervical radicular symptoms consistent with C6/7 disc herniation. He was not making progress after four months. Dr van Gelder recommended that he continue with first line rehabilitation approaches, including work modifications and restrictions, light activities and light exercise and symptomatic treatments. Based on the size of the herniation, there was a good chance that symptoms could settle with conservative treatment. The applicant would like to have a cervical injection, which was understandable, given the duration of his symptoms. There was a chance he would benefit from an injection directed at the left C7 nerve root.

Dr van Gelder recommended that the applicant have an MRI of his shoulder and his shoulder condition should be treated. It was common to have a combination of a shoulder injury and cervical radicular symptoms after a work-related injury. The applicant should also have a CT scan of his cervical spine to better demonstrate anatomy and osteophytes around his C6/7 neural foramen. He should return for review. There are no further reports from Dr van Gelder.

Dr Graeme Doig – Orthopaedic and Trauma Surgeon

Dr Doig was qualified by the respondent and reported on 27 October 2021.

Dr Doig recorded a consistent history of the injury. He noted that MRI scan revealed minor, multi-level unco-vertebral degeneration in the neck. X-ray of the left shoulder failed to reveal any abnormality, other than a small inferior bony ossicle, which looked pre-existing. An ultrasound suggested a partial tear of the supra-spinatus tendon with impingement.

The applicant maintained that he had tried to return to work on light duties. He described being provided with packing duties that resulted in a flare-up of his condition. Dr Doig opined that this would require clarification. The applicant had at no stage been able to upgrade to his pre-injury status and was not employed.

The applicant told Dr Doig that his condition was no better, and if anything had recently deteriorated. He complained primarily of trapezius-muscle pain on the left, with difficulty sleeping.

On examination, Dr Doig noted that the applicant appeared to manifest a degree of functional overlay, with significantly limited movement, which appeared secondary to pain. He remained generally tender around the left side of the neck over the trapezius muscle, and down onto the shoulder, with markedly limited lateral flexion and rotation through the cervical spine, particularly to the left, with only 10 degrees of extension and 50% loss of forward flexion. Dr Doig ruled out a frozen component in the left shoulder.

Dr Doig diagnosed a soft tissue injury to the trapezius muscle in the region of the non-dominant left shoulder and cervical spine, as a result of a direct blow. There may have been an associated aggravation of the pre-existing degeneration in the cervical spine, as outlined in the MRI. The applicant was presenting with a chronic pain type of picture with secondary functional overlay.

The applicant did not appear to have recovered from the effects of the work injury, although Dr Doig opined that he was manifesting a degree of abnormal illness behaviour. His apparent physical restrictions far exceeded any underlying pathology identified on his imaging.

Dr Doig opined that the applicant was fit for alternative employment, with restrictions. He should avoid lifting, pushing or pulling more than 5 kg at or below waist height with his non-dominant left arm. He should be able to lift up to 15 kg with both arms. He should avoid using his left arm overhead and “certainly not lift any weight overhead”. He would have limited bending and twisting through the neck and require breaks from prolonged sitting and driving. His incapacity, unless there was evidence to the contrary, appeared to be related to the incident at work.

The applicant’s treatment was appropriate, as he was using analgesics and anti-inflammatories “as required” and carrying out a self-managed exercise program. He appeared to be presenting with a degree of functional overlay, and therefore the prognosis must be guarded, and treatment options were limited.

Return to Work and Injury Management Plans

The first RTW plan, Plan Number 1, was to cover the period from 3 May 2021 to 6 May 2021. The applicant’s restrictions included lifting/carrying and pushing/pulling, with no driving. His duties were described as repack line – repairing boxes, with no lifting greater than 2 kg. It does not appear to have been signed by the applicant but was signed by Ms Snaidero and Dr Wei.
A similar RTW plan, Plan Number 2, was issued for the period from 6 May 2021 to 14 May 2021. Once again, it does not appear to have been signed by the applicant.
Plan Number 3, for the period from 14 May 2021 to 24 May 2021 reduced the applicant’s restrictions and included “driving ability as tolerated”. His duties were altered to add general housekeeping – wiping down of surfaces and rubbish collection. It was signed by Ms Snaidero, but not by either the applicant or Dr Wei.
GIO’s IMP dated 3 June 2021 informed all parties of their obligations under section 48 of the 1998 Act. The action required of the respondent was to provide suitable work, based on the recommendations in the current COC to ensure a safe and durable return to work. The applicant’s required actions included participation in suitable work, as directed by his nominated treating doctor (NTD) and the respondent.
For the period from 18 June 2021 to 25 June 2021 (RTW Plan 6) the applicant’s restrictions included “may drive car, no truck driving”. His duties were to include general housekeeping, including sweeping. It was signed by Ms Snaidero and Dr Wei, but not by the applicant.
The RTW plan for the period from 24 July 2021 to 30 July 2021 (RTW Plan 8) included restrictions on lifting to 2 kg; that the applicant was only able to drive a car; no repetitive bending with his neck; no lifting with his left arm above shoulder height; and light office job, with no cleaning. It may be seen that the restrictions and the limitation on his work activities were increasing. His duties were to be administrative and sedentary. They included pallet receipt checks, and it was noted that they were to be at Kemps Creek. Only Ms Snaidero signed the plan.
GIO issued a further IMP dated 4 August 2021. It differed little from the IMP dated 3 June 2021 but included approval of services including investigations of the cervical spine and left shoulder; physiotherapy; and consultation with Dr van Gelder.
The last IMP is dated 15 September 2021. It included a requirement that the applicant attend an IME with Dr Frank Machart on 30 September 2021. It appears that this examination did not take place, or at least there is no report in evidence. The requirement for the respondent to provide suitable work, and for the applicant to participate were not included. This was, of course, after GIO had suspended Mr Jafary’s weekly payments.

SUBMISSIONS

The parties’ submissions have been recorded and a transcript is available. I will therefore summarise them only briefly.

Applicant

The applicant’s primary submission was that the notices issued to him were defective, and that his payments were not validly suspended and terminated.

The applicant submitted that the first notice, dated 24 May 2021, was defective because it did not give him 14 days’ notice of the respondent’s intention to suspend his payments. The period of notice was in fact 12 days. He conceded that the notice dated 26 July 2021 was not defective.
The applicant submitted that the notice dated 10 August 2021, which advised of the suspension of weekly payments, was defective because it referred to a suspension notice dated 9 August 2021, when there was no notice of that date. The notice also advised that his payments would be suspended for 28 days from 26 July 2021. It is dated 10 August 2021, but the suspension was to date from 26 July 2021. The applicant submitted that the notice therefore post-dated the period in respect of which his payments were suspended, and referred to a notice that didn’t exist, making it clearly defective.
The applicant submitted that the notice advising that his weekly compensation was to be terminated is defective, as there were not two valid notices about the possible suspension. He should therefore not be bound by this notice. He submitted that the respondent had not complied with the requirements under the section. Therefore, that should be the end of these proceedings.
The applicant submitted that there are three documents relied on by the respondent that are defective on their face, that terminate his weekly compensation forever, in a situation where the respondent’s medical evidence supports the injury and incapacity, with significant restrictions on suitable duties. The respondent should not be entitled to rely on such defective notices to extinguish the ongoing entitlement to weekly compensation. If that submission were accepted, there is no jurisdiction in the Commission. The respondent needs to issue a section 78 notice, with the appropriate notice periods, or a work capacity decision.
In the event that I am against the applicant on the issue of whether the notices were defective, he made submissions on the issue of reasonableness.
The applicant referred to the decision of Deputy President Snell in the matter of Cross vSecretary, Department of Education [2019] NSWWCCPD 20 (Cross) and the decisions discussed therein. He submitted firstly that the respondent bears the onus in reliance on sections 48 and 48A of the 1998 Act, and it could not establish on the balance of probabilities that he had failed to comply with an obligation to make reasonable efforts to return to work.
In the matter of Cross, the respondent had made a work capacity decision, so the matter was remitted to the arbitrator. That is not the case in this matter, so the applicant submitted that if I find that the section 78 notice should not be upheld, there is no jurisdiction to determine the entitlement to weekly compensation, which is consistent with the decision in Cross.

The applicant then made submissions on the issue of reasonableness, referring to section 48(1) of the 1998 Act, the wording of which he submitted is important, and in particular the words “in cooperation with the employer”. He submitted there is a dual obligation. The respondent had required the applicant to perform suitable duties at a different site, that is Kemps Creek.
The applicant’s primary submission as to why it was not reasonable to require him to work at Kemps Creek related to geography. He could not easily get to Kemps Creek. He did not have the use of a car and asked the insurer for transport assistance that was not provided. He would need to catch public transport. He instructed his counsel that this would involve catching a train from Fairfield to Parramatta, where he would change trains for Blacktown. He would then get a bus from Blacktown station to Eastern Creek, and most importantly, then walk three or four kilometres to the Kemps Creek site.

The applicant submitted that, given his ongoing neck and shoulder pain, and referred pain, and certifications of suitable duties, which required sitting and standing as required, it was unreasonable to place a burden on him to travel to a site that was so difficult to get to. He submitted that a Google search of the Kemps Creek site, seeking public transport recommendations, disclosed no such recommendations, which supported his position of the difficulty attending the site via public transport.
The applicant submitted that the matters referred to in the definition of “suitable employment” in subclause (b) in section 32A of the 1987 Act have no part to play in the assessment of whether the employer has provided suitable employment.
Referring to the decision of his Honour President Keating in McDonald v North Coast Area Health Service [2009] NSWWCCPD 50 (McDonald), the applicant submitted that the respondent did not take into account his personal circumstances, being the difficulty in geography, in travelling by public transport, the lack of availability of a car, and the likely aggravation of his symptoms with such an extensive requirement to use public transport and walk.
The applicant submitted that, in McDonald, Keating P had referred to the decision of Curtis CCJ in Joseph Marmara v K Mart Australia Ltd 13 November 2000 (unreported) (Marmara), where his Honour said “The applicant (worker) is not a serf or a peon…”. He submitted that the obligation to work, pursuant to section 48(1) of the 1998 Act, is to make reasonable efforts in cooperation with the employer or insurer. He submitted there were no attempts to accommodate him at another site or with ways to attend work.
The applicant then made submissions on the medical evidence. He submitted that Dr Wei’s opinions were internally inconsistent, and not supported by the treating surgeon, the pathology shown on MRI scans, or the aggravation he sustained when trying to perform suitable duties. He referred to the findings on examination described by Dr Wei in the email to the respondent dated 3 May 2021. The RTW plan dated 28 May 2021 certified fitness to work 40 hours per week. The applicant submitted that the important thing to note is what Dr Wei recorded on 18 June 2021. The next RTW plan contained the same certification, despite Dr Wei having noted the increase in symptoms. He submitted that one would question the validity of the RTW plan when he was clearly suffering further aggravation of symptoms when performing suitable duties.
The applicant submitted that Dr Wei’s assessment of the MRI scan is contrary to the specialist opinion of Drs Doig and van Gelder. His evidence is at odds with the other evidence in relation to the applicant’s pathology, ongoing symptomatology, and the cause of that symptomatology. The applicant referred to the downgrade in his capacity in the RTW plan dated 1 July 2021, which he submitted supported Dr Doig having recorded an aggravation while doing packing duties, and his consideration of doing suitable duties, and indicates the lack of suitability of extensive travel and walking to the Kemps Creek site.

The applicant referred to the RTW plan dated 9 September 2021, which reduced his hours to four hours a day, five days a week, with other restrictions. He submitted this could not support extensive travel and walking to a site where suitable duties were only offered.
The applicant submitted that Dr van Gelder’s discussion of the MRI scan was totally contrary to Dr Wei’s opinion that there was no serious pathology. He submitted that a condition that was worsening, not improving, does not support extensive travel every day to Kemps Creek. He referred also to Dr Doig’s findings on examination and conclusion as to capacity for work.
The applicant finally submitted that in light of the diagnosis, examination findings and suitable duty recommendations, specifically requiring breaks from prolonged sitting or driving, the respondent’s own evidence would indicate that the request for extensive travel and walking to Kemps Creek would not be reasonable and I would find that the section 78 notice should not be upheld, both on the basis that the notices were defective and that the proposed suitable duties were not reasonable. He submitted that I would not find that he had failed to make reasonable attempts to return to suitable duties; and the respondent has not met the onus. The defence, pursuant to section 48A of the 1998 Act, fails and there is no jurisdiction in the Commission thereafter.
In reply to the respondent, the applicant submitted that Dr Wei agreed he could walk 600 metres to the nearest station and then take a 10 minute walk from Warwick Farm. That is a far less arduous trip than from Eastern Creek to Kemps Creek. There is no evidence from Dr Wei saying the applicant could take the extensive trip to Kemps Creek and the extensive walk at the end of it. Most of the time, he was certified fit for only four hours a day, so that he was effectively being asked to walk three to four kilometres and would need to do that twice.
The applicant submitted there is no evidence to dispute his evidence that there is no accessible public transport to the Kemps Creek warehouse. The evidence to which the respondent had taken me does not support the reasonableness of that location and the medical evidence doesn’t specifically state that Dr Wei considered he could travel to Kemps Creek, and certainly doesn’t indicate that he had considered the extensive nature of that trip.

Respondent

The respondent did not attempt to defend the notice dated 24 May 2021, conceding that it seemed to be defective. It submitted that the notice dated 26 July 2021 was a valid notice under section 48A of the 1998 Act, as it allowed the applicant until 9 August 2021 to remedy the breach, allowing for 14 days to elapse under section 48A(2)(b).
The respondent submitted that what flowed from that was that the applicant had not returned to duties as at 9 August 2021. That then gave rise to the notice that advised him his payments would be suspended for a period of 28 days from 26 July 2021. That was the date from which the initial notice was given, and the applicant was not working that day and hadn’t worked up to the time of the notice. The notice dated 10 August 2021 clearly stated that if he returned to work within 28 days, his payments would be reinstated. The respondent referred to section 48A(3), submitting that the written notice that satisfied that section, and which was issued under section 48A(2), was the notice dated 26 July 2021. The date referred to in the notice dated 10 August 2021 was 26 July 2021.
The respondent submitted that, clearly, the applicant never returned to work, which made any of the defects in the later notices of no consequence, given that the spirit or the timeframes in section 48A of the 1998 Act would have been complied with in any event. It submitted they were complied with in the notice dated 26 July 2021 and the subsequent cancellation notice dated 10 August 2021.
The respondent then turned to the section 78 notice, which it submitted “clearly does something a bit more than the suspension of the payments, it terminates the payments.” It was issued on 14 September 2021, pursuant to section 48A(6) of the 1998 Act. The respondent submitted that it clearly stated the reason for giving the notice, which is the same reason, that is the failure to engage in or make reasonable efforts to return to work in suitable employment, which are the requirements of the RTW obligations.
The respondent submitted that the letter that grounded the section 78 notice was the one dated 26 July 2021, and not the one dated 24 May 2021. It submitted that clearly the Act doesn’t require two letters. Given that the first was probably defective, it is entitled to rely on the second, to ground the section 78 notice, or the subsequent termination or suspension of payments, and then termination under the section 78 notice. The notice is a valid notice, and the dates are explained by the fact that they are based on the notice dated 26 July 2021, and not that dated 24 May 2021.

The respondent then made submissions on the reasonableness of the actions. It also referred to the decision in Cross. It accepted that it bears the onus of proving that the applicant acted unreasonably. It relied on the opinions of Dr Wei, which are in the form of an email trail.
While conceding that it is “controversial”, the respondent submitted that by this time there had been a problem with Covid 19 in the Eastern Creek warehouse; and as a result of the applicant’s anxieties, and despite it being engaged in essential work, it transferred him to Kemps Creek. It referred to the emails between Dr Wei and Mr Smith. It was on that background that Dr Wei, the NTD, found that the applicant could catch public transport and walk that distance. The respondent did not deny that it was a long trip on public transport, but submitted that nevertheless, the applicant could undertake it. He made no attempt to undertake it, to show that it was unreasonable or something he could not do within the restrictions that had been put upon him.
The respondent submitted that there is no evidence that the applicant couldn’t move around as needed on a bus or a train. It conceded that the jolting that would take place had to be taken into account. It submitted there is no evidence that the applicant couldn’t take some sort of public transport to Kemps Creek. It may have been inconvenient, but it did exist.
The respondent referred to Dr van Gelder’s evidence. It submitted that walking could be described as light exercise, and while 600 metres is not a short walk, neither is it a long one, but a middle to small distance walk. The applicant wanted to have a cervical injection, which is not what Dr van Gelder thought was appropriate.
The respondent submitted that Dr Wei’s findings on examination on 18 June 2021, when compared with those on 3 May 2021, appear to show that the clinical signs of restriction in the neck had abated. Dr Wei had explained that the MRI findings showed there was no structural injury to prevent the applicant performing light duties. It submitted that Dr van Gelder came to essentially the same opinion. All I am really left with is the evidence of Dr Wei, which says the applicant could have undertaken trips on public transport, which is the evidence on which the respondent based its various notices, the suspension of payments, and the eventual termination of payments.
The respondent finally submitted that the only matters in dispute are the sections 48 and 48A matters. If I find that they are either not valid notices or it hasn’t discharged its onus in relation to reasonableness, then the notices would be found to be invalid.

SUMMARY

Section 48 of the 1998 Act provides as follows:
“Return to work obligations of worker

(1) A worker who has current work capacity must, in co-operation with the employer or insurer, make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker's place of employment or at another place of employment.

(2) For the purposes of this section, a worker is to be treated as making a reasonable effort to return to work in suitable employment or pre-injury employment during any reasonable period in which--

(a) the worker is waiting for the commencement of a workplace rehabilitation service that is required to be provided under an injury management plan for the worker, or
(b) the worker is waiting for a response to a request for suitable employment or pre-injury employment made by the worker and received by the employer, or
(c) if the employer's response is that suitable employment or pre-injury employment will be provided at some time, the worker is waiting for suitable employment or pre-injury employment to commence.”

Section 48A of the 1998 Act provides as follows:

“Failure to comply with return to work obligations of worker

(1) If a worker does not comply with an obligation of the worker imposed under section 48, the insurer may in accordance with this section--

(a) suspend the payment of compensation in the form of weekly payments to the worker, or
(b) terminate the payment of compensation in the form of weekly payments to the worker, or
(c) cease and determine the entitlement of the worker to compensation in the form of weekly payments in respect of the injury under this Act.

(2) If the insurer seeks to suspend payments of compensation under subsection (1) (a), the insurer must give written notice to the worker stating--

(a) the reason for the giving of the notice, and
(b) that unless the worker complies with the obligation under section 48 specified in the notice, weekly payments to the worker will be suspended from the date specified in the notice which must be a date at least 14 days after notice is given but no more than 60 days after notice is given, and
(c) the consequences of failing to comply as specified in the notice.

(3)     If the worker fails to comply with a written notice under subsection (2), the insurer may suspend the payment of weekly payments to the worker for a period of 28 days after the date specified in the notice referred to in subsection (2) (b).

(4)     If the worker complies with the obligation specified in the notice under subsection (2) during the period that weekly payments are suspended under subsection (3), the insurer must, subject to and in accordance with this Act, resume the payment of weekly payments with effect from the date on which the worker complied with the obligation.

(5)     If subsection (4) applies, the worker forfeits any compensation in the form of weekly payments that would otherwise have been made during the period of suspension until the worker complied with the obligation and that period is included in determining the first or second entitlement period under Division 2 of Part 3 of the 1987 Act.

(6)     If the worker does not comply with the obligation specified in the notice under subsection (2) for the entire period that weekly payments are suspended under subsection (3), the insurer may terminate the payment of compensation in the form of weekly payments to the worker in respect of the injury by written notice stating the reasons for giving the notice.

(7) If the worker--

(a) does not comply with the obligation specified in the notice under subsection (2) for the entire period that weekly payments are suspended under subsection (3), and
(b) has within the last 12 months prior to the giving of the notice referred to in paragraph (a)--
(i) been issued 2 notices under subsection (2) without a subsequent suspension of weekly payments, or
(ii) had compensation in the form of weekly payments suspended once under subsection (3),
the insurer may cease and determine the entitlement to compensation in the form of weekly payments in respect of the injury to the worker under this Act by written notice stating the reasons for giving the notice.”

Validity of the Notices

In order to “cease and determine” the applicant’s weekly payments, pursuant to section 48A(1)(c) of the 1998 Act, on which the respondent relied in the notice dated 14 September 2021 (the section 78 notice), the respondent must establish that Mr Jafary did not comply with his obligations pursuant to section 48 of the 1998 Act. In doing so, it must act in accordance with the requirements of section 48A.
Section 48A of the 1998 Act sets out what the respondent must do to validly suspend weekly payments to the applicant, and to terminate those payments (provided for in subsection (6)), or to cease and determine those entitlements (provided for in subsection (7)).
The respondent has properly not attempted to defend the notice dated 24 May 2021. It was clearly defective, and it is troubling that an insurer would not take more care in issuing such a notice, given its potentially serious impact on the applicant.
The insurer appears to have recognised its error, as it issued a further notice dated 26 July 2021 (I will refer to this as the first notice). The applicant was advised that, if he did not complete the required actions by 9 August 2021, his weekly payments would be suspended from 9 August 2021 and would only resume when he complied with his RTW obligations. The applicant does not take issue with the validity of that notice.
The next notice issued by GIO (which I will refer to as the second notice) was issued on 10 August 2021. It referred to a “suspension notice” dated 9 August 2021 and advised the applicant that his weekly payments “will be suspended” from 26 July 2021 because he had failed to comply with his RTW obligations, detailed in the notice dated 9 August 2021, by the due date.
The first thing to note is that there is no suspension notice dated 9 August 2021. The date of 9 August 2021 is the date by which GIO advised the applicant he had to comply with his RTW obligations, and it is referred to in the notice dated 26 July 2021. The applicant could hardly be expected to comply with obligations that it was claimed were stipulated in a non-existent document.
The second thing to note is that the second notice advised the applicant that his payments would be suspended for a period of 28 days from 26 July 2021, referring to section 48A(1)(a) and section 48A(3) of the 1998 Act. It would therefore appear that he was being given retrospective notice of the suspension of payments. That is notwithstanding the fact that the first notice had advised him that, should he fail to comply with his obligations, his weekly payments would be suspended from 9 August 2021. That also accords with what Ms Jackson told the respondent on 10 August 2021, that is, that the applicant’s wages had been suspended effective 9 August 2021.
The applicant was given until 9 August 2021 to complete the “required actions”. He was not told in the first notice, nor could he have been, that his payments would be suspended from 26 July 2021, because section 48A(2)(b) requires that he be given at least 14 days to comply with his obligations. That is why the first notice stipulated the date of 9 August 2021 (14 days after 26 July 2021), and why the respondent conceded that the notice issued on 24 May 2021 was defective.
The respondent submitted that the applicant had never returned to work, so any defects in the later notices of are no consequence, as the spirit of the timeframes in section 48A would have been complied with in any event.

Section 48A(6) of the 1998 Act provides that the insurer may terminate the applicant’s weekly payments if he does not comply with the obligation specified in the notice (that is, the first notice) for the entire period that weekly payments were suspended. The respondent submitted that the applicant had failed to comply with the obligation for the entire period, so defects in the notices were of no consequence.
I do not agree with the respondent’s submission. The suspension or termination by an insurer of a worker’s weekly payments is not an action to be undertaken lightly. The consequences for a worker may be extremely serious. The timeframes mandated by section 48A require strict compliance, so that a worker may consider his or her options, and, for example, obtain medical or legal advice, or make efforts to find other employment that he or she may feel is more suitable. It is not sufficient that the “spirit” of the timeframes is complied with.
In this case, the applicant was advised in the first notice that he had until 9 August 2021 to complete the required actions. In fact, his weekly payments were later suspended from 26 July 2021, which was the date of the notice itself. He was still in time to comply with his obligations when GIO decided on 9 August 2021 to suspend his payments. His solicitors had been in contact with GIO. Ms Jackson told them on 10 August 2021 that his wages had been suspended effective on 9 August 2021, which is not what the notice stated.
Section 48A(7) of the 1998 Act provides that the insurer may cease and determine the applicant’s entitlement to weekly payments if he does not comply with the obligation specified in the notice foreshadowing suspension (which in this case was the first notice) for the entire period of the suspension, and had within the last 12 months before that notice was issued been issued either with two notices, without subsequent suspension of payments, or had compensation suspended once. Neither requirement is fulfilled in this case.
It follows from what I have said above that in my view the section 78 notice, purporting to terminate the applicant’s weekly payments, was not validly issued, because it relied for its validity on defective notices
That is, as the applicant submitted, sufficient to dispose of the matter. However, as the parties have made submissions on the issue of “reasonableness”, it is appropriate that I also address that issue.

Reasonable efforts to return to work

Section 48(1) of the 1998 Act provides that a worker such as Mr Jafary, who has current work capacity, must, in cooperation with the employer or insurer, make reasonable efforts to return to work in suitable employment or his pre-injury employment, at his place of employment or another place of employment (my emphasis). The respondent accepts that it bears the onus of proving that the applicant did not make the reasonable efforts required of him.
Both parties referred me to the decision of Snell DP in Cross. Snell DP referred in that matter to the decision of Roche DP in O’Carroll Constructions Pty Ltd v Burgess [2007] NSWWCCPD 224 (Burgess).
Burgess raised an issue under the former section 57(1) of the 1998 Act, regarding whether a worker unreasonably failed to comply with an IMP. Roche DP said the arbitrator was required to “consider all relevant circumstances” in considering whether the worker’s failure to comply with the IMP was “unreasonable”.
Roche DP said in Burgess that, in addition to the objects set out in section 41(1) of the 1998 Act (which provides that the object of Chapter 3 (Workplace Injury Management) is to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries), other relevant circumstances could include:
“…other matters, such as the worker’s attitude and approach to rehabilitation in general and whether he is serious about seeking a genuine and sustainable return to work, or whether he is deliberately avoiding his obligations so as to prolong time on compensation, are also relevant. In looking at these matters it is necessary to consider a worker’s overall circumstances, his injury and incapacity, his education and qualifications, his likely career prospects in general and whether his past attempts at rehabilitation and or retraining have been genuine.”
Snell DP also referred in Cross to the decision of Keating P in McDonald. His honour referred in that matter to the following passage from Hines v WorkCover/HIH (Transfer Maintenance Pty Ltd) Corporation [2000] SAWCT 171:
“In determining the reasonableness of a rehabilitation and return to work plan or its provisions, consideration must be given to the personal circumstances of the worker. They are not paramount, but they must be taken into account.”
His honour also said that

“an assessment of ‘reasonableness’ is a subjective assessment that will vary from case to case.”

In McDonald, Keating P also quoted with approval from the decision of Curtis J in Marmara, in which his Honour referred to the requirements of section 48(1).
Snell DP said in Cross “That reasonable efforts be made in cooperation between the worker, and the employer or insurer, is consistent with seeking to achieve a durable return to work, which is one of the objects of the Chapter” (that is, Chapter 3). It should be noted that the applicant’s RTW plans required that he was ensured a timely, safe and durable return to work.
An aspect of this matter that has struck me is that there appears to have been little real effort by the respondent and GIO to engage directly with Mr Jafary. There was a lot of communication between the respondent, GIO and Dr Wei, but the applicant appears to have been somewhat marginalised. In saying this, I concede the effects of the pandemic, which has curtailed in person contact to a significant extent. However, the applicant obviously had access to email and a telephone. It would have been possible to involve him in the process to a greater extent than was the case.
When Ms Snaidero responded to Ms Jackson’s email on 4 August 2021, she advised that the respondent had moved the applicant’s suitable duties to Kemps Creek. There is no evidence that this was discussed with him. His uncontradicted evidence is that he was instructed to attend work at Kemps Creek. RTW Plan 8 merely noted that his duties were to be at Kemps Creek.
At this stage, Ms Snaidero asked about “non-compliance” and whether the applicant’s wages could be terminated, but not about any assistance to comply that might be extended to him. She appeared to be focused on terminating his weekly payments, rather than attempting to address issues he may have had with compliance.
The email sent by Ms Snaidero to the applicant on 4 August 2021 said that his suitable duties plan “has you” at Kemps Creek, and he had to make a reasonable effort to return to work. There is again no evidence of any discussion with him about this relocation.
The applicant has given evidence about the difficulty he would have had in travelling to and from Kemps Creek, in circumstances where he does not have a car and would be reliant on public transport. While Mr Smith asked Dr Wei whether the applicant could travel by public transport, it is clear that he was referring to attending work at the Warwick Farm site. This must be the case because this occurred before the applicant’s RTW Plan “had him” at Kemps Creek, and because there is reference to walking to work from Warwick Farm station.
There is no evidence that Dr Wei was asked whether the applicant could take public transport to Kemps Creek, either before or after he was placed there. Once again, the applicant’s evidence that there is no accessible public transport to Kemps Creek is uncontradicted.
I note that, while the applicant’s counsel made submissions on his instructions as to the requirements for Mr Jafary’s travel to Kemps Creek, the applicant did not give evidence in those terms. The respondent conceded that it was a long trip on public transport and submitted that public transport may have been inconvenient, but nonetheless it existed.
I am satisfied that it would be a long and inconvenient process for the applicant to travel from his home at Fairfield West to Kemps Creek by public transport, which was the only means available to him. By the time he was to be placed at Kemps Creek, he was certified fit to work only four hours a day, so he would need to undertake a lengthy round trip to perform about half a day’s work.
As Keating P observed in McDonald, the applicant’s personal circumstances must be taken into account. I am not persuaded that that took place when the decision was made to require him to perform his duties at Kemps Creek.
On this background, the applicant’s diagnosis and symptoms must also be considered. The applicant did attempt suitable duties in June 2021, but Dr Wei recorded on 18 June 2021 that he had worsening pain and was struggling with his light duties, complaining that the work was harder than his pre-injury duties. Dr Wei believed there was no evidence of significant or serious pathology. His proposal was that the applicant should “push through” the pain.
Dr Wei did not believe the applicant had serious pathology, but Dr van Gelder recorded that, while the disc herniation at C6/7 was not large, it was impacting the C7 nerve. The applicant’s neck pain and radicular symptoms were consistent with the herniation. He was not making any progress. There is no suggestion in Dr van Gelder’s report that the applicant was pain focused or not prepared to “push through” the pain. Dr van Gelder found objective signs on examination.
Dr Doig, on the other hand, opined that the applicant manifested some abnormal illness behaviour, but at the same time accepted that he did not appear to have recovered. He placed significant restrictions on the applicant’s activities, including that he required breaks from prolonged sitting and driving. That would, in my view, include travelling long distances by public transport.
Taking into account both the manner in which the decision was taken to require the applicant to work at Kemps Creek and his symptoms, I do not accept that the respondent has met its onus of establishing that the applicant did not make the reasonable efforts to return to work that were required of him.
On either basis, that is, the validity of the notices themselves, or the contention that the applicant failed to make reasonable efforts to return to work, the respondent was not entitled to rely on section 48A of the 1998 Act to terminate his weekly payments. The notices were invalid.
I determine that the notices relied on by the respondent are invalid and its defence pursuant to sections 48 and 48A of the 1998 Act fails. In accordance with the parties’ submissions, I will make no order.

[2021] NSWPIC 529

17 December 2021