Konza v Burkes Transport (Services) Pty Limited
[2022] NSWPIC 133
•28 March 2022
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Konza v Burkes Transport (Services) Pty Limited [2022] NSWPIC 133 |
| APPLICANT: | Michael Andrew Konza |
| RESPONDENT: | Burkes Transport (Services) Pty Limited |
| PRESIDENT’S DELEGATE: | Parnel McAdam |
| DATE OF DECISION: | 28 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; whether applicant could work as a school crossing supervisor; requirement for potential employees to pass a working with children and police check; no evidence provided that the applicant would not pass those checks; insufficient medical evidence to support allegations of lethargy and lack of concentration; Held- award for the respondent. |
DIRECTIONS MADE: | Award for the respondent. |
INTERIM PAYMENT DIRECTION
STATEMENT OF REASONS
BACKGROUND
Mr Michael Konza (the applicant) was employed by Burkes Transport (Services) Pty Limited (the respondent) as a truck driver. He suffered an injury to his left arm, due to heavy lifting largely associated with moving “gates” on the truck he was driving. His left shoulder is described as having “gross dysfunction”.
On 30 November 2021 the respondent’s insurer issued a work capacity decision, reducing weekly payments under section 37 of the Workers Compensation Act 1987 (the 1987 Act) to $681.40 per week. The work capacity decision was made on the basis that Mr Konza could work as a school crossing supervisor for 20 hours per week.
The applicant disputes that determination. Proceedings were commenced in the Personal Injury Commission (Commission) on 23 February 2022 and proceeded to teleconference on 14 March 2022. The parties were unable to resolve the dispute via conciliation and accordingly provided submissions at teleconference.
Issues in dispute
The issue in dispute in this matter is whether Mr Konza is capable of work in suitable employment, per the definition in section 32A of the 1987 Act. The claim made is for weekly benefits pursuant to section 37 of the 1987 Act.
The legislation
As this dispute concerns suitable employment, I must consider the definition in section 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Section 37 of the 1987 Act provides:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
I am determining this dispute exercising powers of the President delegated to me. Section 297(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction.”
The evidence
I have reviewed all of the evidenced lodged by the parties attached to the Application and Reply. The key documents relevant to the determination of the issues in dispute are discussed below.
The dispute notice
The respondent issued a work capacity decision on 30 November 2021. That decision was made on the basis that Mr Konza was capable of working in suitable employment as a school crossing supervisor for 20 hours per week. The decision relied on a certificate of capacity, a vocational assessment report by Recovre and an IMC file review by Dr Barbara Schiff.
Vocational assessment report
Recovre provides a vocational assessment report dated 23 June 2021. The report was completed in a “genuine attempt to generate alternative employment options for optimal success”. The report considers the history of injury, the current status and diagnosis, as well as current symptoms being fatigue at the end of the day, the use of pain medication, and restricted mobility and pain symptoms in the left shoulder.
At the time of preparation of the report, Mr Konza was certified fit for pre-injury hours in alternative/suitable duties, with a lifting/carrying capacity of 5kg unilateral, 10kg bilateral to waist only and for 5 metres only, with nil above shoulder. Pushing/pulling was for light loads only. There was a driving limit of local trips only with rest breaks between trips.
Mr Konza’s employment history was listed. Mr Konza has only ever worked in physical roles, as a truck driver or labourer/farm hand. A list of options were discussed with Mr Konza including the role in dispute of school crossing supervisor. He reported “limited interest in these work areas”. He was most interested in work in forklift driving. The roles of clerk and crossing supervisor were ultimately identified as suitable employment options.
Attached as an appendix is a labour market analysis of suitable employment options. The role of crossing supervisor was listed as having a sedentary to light physical demand, and that lifting, pulling and carrying are not significant components of the job.
Three employers were contacted as part of the analysis. Importantly for the applicant’s case, each identified that a working with children check, a police check, and a health assessment were required to commence the role. The three roles were split-shift roles, with one to two hours of work per shift over a five-day period. The maximum work week was 20 hours, which reflects the decision in the work capacity dispute. Each employer confirmed that Mr Konza’s functional capacity should not impact upon employment.
Recovre also provide an earlier vocational assessment report dated 10 November 2020. This report was considered by Dr Schiff. It identified clerk and school crossing supervisor as suitable employment options. At the time this report was prepared, Mr Konza was performing suitable duties with his pre-injury employer and his preference was to remain with his employer completing those duties.
In terms of the alternative employment options, a labour market analysis was conducted. As with the later report, discussed above, each employer identified the requirement to obtain a working with children, police, and health check, and each employer was of the view that the role would not be beyond Mr Konza’s functional capacity.
IMC file review
Dr Barbara Schiff provides an IMC file review dated 17 August 2021. The matter was referred for “assistance in identifying alternative duties”. In terms of claims history, it was noted that the nominated treating doctor was “refusing to sign off on suitable vocational options and some reasons provided are not related to his shoulder eg walking restrictions”. Dr Schiff reviewed the radiological and other medical evidence as well as a vocational assessment report from Recovre dated 10 November 2020.
The IMC opinion was that the worker’s certification of full-time hours on suitable duties was “on track”. The vocational options of clerk and school crossing supervisor were noted to be within the restrictions on the certificate of capacity. If there was a discrepancy regarding these work options, a functional capacity assessment was recommended, and if that matched the options, he should have the capability to do those tasks with a new employer for pre-injury hours.
Report of Dr Tim Anderson
Dr Anderson provides a report dated 7 February 2022 on behalf of the applicant. He records an injury of “severe tears and dysfunction of the left shoulder complex which unfortunately is not surgically operable”.
Mr Konza’s work history, mostly in truck driving, was noted. In terms of employment as a clerk or a crossing supervisor, a “word of caution” was urged. In terms of crossing supervisor, Mr Konza noted to Dr Anderson that “he has a very low tolerance of children, particularly if they are badly behaved and he fears that he might do something at a school crossing which could be very unfortunate”. Later, Dr Anderson records that Mr Konza had a “fairly short fuse” with children, particularly if there was bad behaviour.
In terms of present complaints, it is noted that the “major issue is pain in his left shoulder complex with gross restriction of movement”.
His conclusion on fitness for work indicates that “in theory he would probably be able to work as a clerk or at a school crossing, although I would draw attention to my concerns about these issues”. It was suggested that office work would be the most ideal type of work but may be untenable. It was suggested that it would be worthwhile looking at lightweight and simple delivery work.
Evidence of Dr Whitmill
Dr Whitmill is Mr Konza’s treating general practitioner. A number of certificates of capacity are provided, the latest of which is for the period 1 March 2022 to 31 March 2022, with a lifting capacity of “5kg unilateral 10kg bilateral waist only 5 metres only nil above shoulder”, pushing/pulling of “light loads only” and a somewhat limited driving ability.
He provides the following commentary:
“Having problems with tiredness and lethargy, not sleeping may require reduced work hours. Will not be able to perform work as a clerical officer due to Education and Prior Training. Will not be able to work as a Traffic controller as unable to move signs. Unable to stand in 1 spot for any length of time and unable to hold signs affecting shoulder”.
Dr Whitmill also provides approval of suitable employment options on 5 October 2020, in which he approves the role of school crossing supervisor with the commentary “as long as no heavy lifting above the shoulder required”.
Report of Dr Bosanquet
Dr Bosanquet provides a report on behalf of the respondent dated 27 October 2021. At the time of this report, Mr Konza had been terminated from his role with the respondent as he was unable to return to his pre-injury role. Dr Bosanquet provides an assessment of 5% whole person impairment, although I believe this involves an error, as it does not include the stated deduction of 1/3rd. A later report amends and explains this calculation.
In terms of work capacity, Dr Bosanquet states that from an orthopaedic view “a crossing supervisor would be appropriate as there is not any overhead use of either arm or lifting more than 2 kgs.”
Submissions
Submissions were provided at the teleconference and recorded. The below is a summary of the parties’ submissions.
Applicant’s submissions
The applicant provided lengthy submissions at the teleconference. Some of those submissions focussed on the content of the evidence, which I have discussed in detail above.
The applicant notes that the role of crossing supervisor is qualified by the requirement to obtain a working with children check, a police check, and health assessment. The applicant notes that the three roles identified in the labour market analysis were 10, 12.5 and 20 hours per week.
The applicant submits that I would not be satisfied that the role of crossing supervisor is suitable employment. It was noted that meter reader was rejected as suitable because it would involve too much walking. The applicant has other health factors that need to be considered, including obesity, a symptomatic neck condition, and a pre-existing right shoulder injury.
The applicant submits that in determining whether work is suitable, you must have regard to the worker’s general health, including his sleep difficulties and fatigue. The role of crossing supervisor involves safety and must be performed in all types of conditions.
Reference was made to the case of Wollongong Nursing Home Pty Ltd vDewar [2014] NSWWCCPD 55 (Dewar). Suitable employment must be a real job. In determining the substance of the real job, it is to be performed outside in all types of weather conditions and requires the worker to be alert and looking out for children. It was submitted that these matters have not been considered by the insurer.
The applicant submits that the respondent has not discharged their onus when determining suitable employment, as they have not asked whether he has any criminal record or any significant interactions with children or other persons. Primarily, it is the respondent’s obligation in determining suitable employment to ask those questions as it did of the medical questions.
The applicant referred to the comments in Dr Whitmill’s certificate of capacity noting Mr Konza’s problems with tiredness and lethargy. The applicant submits this may require reduced hours, and he will in any event not be capable of work as a traffic controller. He is unable to move signs and unable to stand in one spot for any length of time.
The report of Dr Anderson was discussed, including the doctor’s caution regarding the role of crossing supervisor, references to obesity and a short fuse with children.
The applicant submits that there is a contingent requirement to employment in the role of crossing supervisor and one does not know whether the worker is suitable for that role as one does not know whether he would pass the tests required. In addition, there’s the other issue of the worker being tired, overweight, and taking pain medication. The applicant submits that it would be risky to permit someone with such difficulties working on a job involving child safety, and the requirements of the role would not be able to be met by the worker.
If I were against the applicant on his primary submission, it was submitted that the physical restrictions placed on the worker are excessive and it would be too difficult to involve him in work for 20 hours per week. A better threshold would be 12.5 hours per week.
Respondent’s submissions
The respondent submits that the correct decision would be to uphold the work capacity dispute. The medical evidence supports the worker’s capacity as outlined in the certificate of capacity. Both Dr Anderson and Dr Bosanquet say the role of crossing supervisor is suitable. It was noted that the worker’s general practitioner had approved the role as suitable.
The respondent also referred to the decision of Dewar on the basis that each case must be looked at individually.
The respondent referred to the labour market research report, which it submitted was unchallenged evidence on capacity and the requirements of the job. All three employers identified indicated that they would consider hiring the worker.
In terms of the applicant’s primary submission concerning the checks required to complete the role of crossing supervisor, it was submitted that it was incumbent on the worker to challenge that issue and in the absence of probative evidence it should be put to one side. Little weight should be given to the worker’s statement given its age and failure to deal with the issues. The respondent also submitted that the commentary in Dr Anderson’s report is an unclear statement, is uncorroborated in the worker’s statement, and is not relevant for the purposes of section 32A.
It was submitted that the role of crossing supervisor fit within the definition of suitable employment in section 32A and that the work capacity decision should be upheld.
Discussion
The definition of suitable employment in section 32A of the 1987 Act contains a list of relevant matters for consideration.
The nature of the incapacity
The evidence concerning incapacity in this matter largely supports the work capacity decision. It must be remembered that the certificate of capacity remains important evidence, but the totality of the medical evidence must be considered when determining suitable employment.
As the respondent submits, the independent medical experts briefed by each party to this dispute support, at least to some extent, the applicant’s capacity for employment as a crossing supervisor. Dr Anderson says “technically, he probably could”. He notes concerns regarding Mr Konza’s tolerance of poorly behaved children, but I am not sure that this can be considered a medical issue or part of “the nature of the incapacity” per the statutory definition. Although in one sense it might be arguable that having a short temper is a medical condition relevant to the question of incapacity. Interestingly, Dr Anderson supports a return to light delivery work, although this was not approved by the treating general practitioner.
Dr Bosanquet likewise provides support for the role of crossing supervisor, at least “purely from an orthopaedic view” (which is probably the relevant view for this aspect of the definition of suitable employment). He does cage his approval of clerical work on the basis that Mr Konza probably doesn’t have the experience or training to work in a clerical position.
Dr Schiff’s IMC report notes that the role of crossing supervisor falls within the restrictions outlined in the certificate of capacity. The ultimate opinion in that report is something of an each-way bet, suggesting referral for a functional capacity assessment if there is a discrepancy about alternative work options.
Dr Whitmill approved the role “as long as no heavy lifting [is] required”. He does, however, provide some commentary around the role in his most recent certificate of capacity where he notes that he will not be able to work as a traffic controller as he is unable to move signs, and unable to stand in one spot for any length of time. Those restrictions were first noted in the certificate for the period 1 December 2021 to 31 December 2021. I find this somewhat concerning as it is not explained particularly, there is no report explaining the downgrade, and it comes one day after the section 78 notice was issued. The timing is circumspect, and without any explanation (or other change in restrictions listed) I will treat that downgrade with caution. It appears the change may have been in response to the work capacity decision and the effect of that decision.
One of the applicant’s contentions for challenging the work capacity decision, or having it amended to reflect a lower capacity for work, concerned those secondary restrictions that are not particularly related to the injury but rather appear to be congenital. In particular, the applicant made submissions concerning Mr Konza’s obesity and inability to stand for long periods.
I accept prima facie that those are matters that come within “the details provided in medical information”. The issue I have with accepting that submission is that they are not explained or supported in “medical information”. As indicated, Dr Whitmill opines that Mr Konza is unable to stand in one spot for any period of time. No explanation is provided for this. True, Mr Konza has suffered a number of documented previous injuries, including to his opposite shoulder and the cervical spine. However, it is not clear how either condition could place a restriction on standing, and certainly one that appeared out of the blue.
Further, I do not place great weight on Dr Whitmill’s concerns regarding concentration and do not find the applicant’s submissions around that point particularly persuasive. The role identified is a split shift role for a maximum of two-hour shifts. True, Mr Konza would need to concentrate and be safety conscious in the role. It is not, however, a skilled role. The evidence does not persuade me that he would be unable to do the role safely due to lethargy or an inability to concentrate.
The worker’s age, education, skills and work experience
Mr Konza has worked in heavy labouring type roles, as well as transport, for his working career. The applicant’s submissions did not place great emphasis on this consideration under the definition of suitable employment. The respondent acknowledged Mr Konza’s employment history but submitted that the skills obtained in his previous employment would be relevant and transferrable to the role of crossing supervisor.
The vocational assessment report supports the conclusion that Mr Konza has sufficient transferrable skills to allow him to work as a crossing supervisor. The skills required for the role, as identified by each of the employer contacts, are relevant to Mr Konza’s transferrable skills, including being reliable, good communication skills, safety awareness and ability to commute. There are no specific qualifications required. As a whole, the role of crossing supervisor would be on the lower end and would not be considered a skilled role.
The crux of the applicant’s case concerned the requirement that any potential employee successfully pass a police check and working with children check, as well as a health check. In particular, it was alluded to that Mr Konza may have had previous interactions with police that would mean he would not be able to pass those checks. The applicant submitted that it was incumbent upon the respondent to ensure that Mr Konza would pass those checks in order for the roles identified to be considered suitable.
During the hearing of this matter, the applicant sought leave to adduce brief oral evidence concerning this issue. This application was declined at the teleconference and oral reasons were provided to the parties at that time. In summary, I was of the view that the applicant had had ample opportunity to provide an evidentiary basis for the assertions made. The applicant was aware of the issue concerning the requirement of those checks being central to the role of crossing supervisor, as it was raised in the vocational assessment report. The applicant’s statement was near 18 months old and did not address the issue at all. It was open to the applicant to discontinue the proceedings and obtain further evidence concerning that issue, or to provide an updated statement addressing that issue. The applicant did not choose to take that route.
The applicant has failed to meet the fundamental evidentiary hurdle to accepting their case. The veiled concerns raised in the medical evidence, particularly the report of Dr Anderson who refers more to the applicant’s dislike of poorly behaved children, does not satisfy that requirement.
I do not think the other aspects for consideration in the definition of suitable employment have any particular relevance to this matter and the applicant did not make any submissions concerning those issues.
Decision
This case turns on the evidentiary basis for the assertions made by the applicant in their submissions. These assertions followed two paths: firstly, that the applicant would not satisfactorily pass the relevant checks required to be successfully employed in the role of crossing supervisor. I accept that if there were evidence to support those assertions, it may be that the role would be a theoretical one (as suggested in Dewar) rather than a real one which could be considered suitable for Mr Konza.
The second assertion concerned unrelated health issues preventing Mr Konza from properly performing the role. The applicant’s principal position on this point is that Mr Konza would be unable to perform the role at all, and it was therefore not suitable. Alternatively, the applicant submitted that he would be able to perform the role on a more limited basis than that asserted in the work capacity decision. Again, this assertion falls short on the basis of a lack of evidentiary support.
It is not apparent to me why Mr Konza would be unable to stand for any period. This is a restriction that appeared in some commentary from the applicant’s treating general practitioner and its significance is unexplained. A report from Dr Whitmill may have been of assistance in that regard.
Likewise, issues regarding lethargy and tiredness are touched on in the medical evidence. However, the work is of short duration (maximum two-hour shifts) which allows sufficient rest period between shifts to be alert and ready for work. In those circumstances I do not accept that Mr Konza’s issues with tiredness prevent the work from being suitable employment.
Considering all of the above factors, the evidence provided, and the submissions of the parties, I am satisfied that the work capacity decision was appropriately made and correct. Accordingly, there will be an award for the respondent.
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