Leuzzi v Primo Concrete Pty Ltd
[2025] NSWPIC 9
•10 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Leuzzi v Primo Concrete Pty Ltd [2025] NSWPIC 9 |
| APPLICANT: | Giuseppe Leuzzi |
| RESPONDENT: | Primo Concrete Pty Ltd |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 10 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits compensation pursuant to sections 33 and 37; claim for permanent impairment compensation pursuant to section 66; accepted right shoulder frank injury and left wrist carpal tunnel syndrome; whether applicant sustained injury to the cervical spine in the nature of a disease pursuant to section 4(b)(i) and (ii); whether the left upper extremity (wrist) can be included in a referral to a Medical Assessor (MA) in relation to a claim pursuant to section 66 because there is no evidence of assessment of whole person impairment (WPI); quantification of the applicant’s entitlement to weekly compensation pursuant to sections 33 and 37(3); what is the “current weekly earnings” that should be applied for calculation of the entitlement to weekly benefits compensation pursuant to section 37(3); Held – award for the respondent in relation to the claimed injury to the cervical spine pursuant to section 4(b)(i) and (ii); in the circumstances, no basis to remit to the President for referral to an MA for determination of WPI; the applicant had current work capacity and returned to work for less than fifteen hours per week; “current weekly earnings” pursuant to section 37(3) are (a) for the periods from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2024 is $1,960 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on a full-time basis, and (b) for the period from 2 November 2023 to 30 November 2023 is $222.65 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on the basis of six hours work per week. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent in relation to the claimed injury to the cervical spine pursuant to ss 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); 2. There is no basis to remit any part of the matter to the President for referral to a Medical Assessor for determination of whole person impairment; 3. During the claim period, the applicant had current work capacity and returned to work for less than 15 hours per week, and 4. The “current weekly earnings” that should be applied in this case for calculation of the applicant’s entitlement to weekly benefits compensation pursuant to s 37(3) of the 1987 Act: (a) for the periods from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2024, is $1,960 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on a full-time basis, and (b) for the period from 2 November 2023 to 30 November 2023, is $222.65 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on the basis of six hours work per week. The Commission orders: 5. The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the 1987 Act as follows: (a) $961.35 per week from 2 November 2023 to 30 November 2023. 6. Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts. |
STATEMENT OF REASONS
BACKGROUND
Giuseppe Leuzzi (the applicant), currently aged 59 years old, has been a director and employee of Primo Concrete Pty Ltd (the respondent) for about 35 years. The applicant worked for the respondent as a concreter.
The applicant seeks weekly benefits compensation pursuant to ss 33 and 37 of the Workers Compensation Act 1987 (the 1987 Act) and lump sum permanent impairment compensation pursuant to s 66 of the 1987 Act in relation to:
(a) right shoulder frank injury on 18 November 2022 which resulted in an aggravation of pre-existing degenerative pathology within the right shoulder;
(b) left wrist carpal tunnel syndrome, with a deemed date of injury of 18 November 2022, and
(c) injury to the cervical spine in the nature of a disease pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act, with a deemed date of injury of 18 November 2022.
By notice dated 21 June 2023 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer (the insurer) disputed the applicant’s entitlement to weekly benefits compensation on the basis that the applicant had current work capacity for suitable employment.
By letter dated 11 March 2024, the applicant made a claim for permanent impairment compensation in the amount of $32,660 in respect of 13% WPI, relying on a medical report of Dr James Bodel dated 20 February 2024.
By notice dated 25 January 2024 issued pursuant to s 78 of the 1998 Act, the insurer disputed the applicant’s entitlement to weekly benefits compensation on the basis that the applicant had current work capacity for suitable employment.
By notice dated 26 June 2024 issued pursuant to s 78 of the 1998 Act, the insurer disputed the applicant’s entitlement to permanent impairment compensation on the basis that it was unable to agree that the applicant had sustained permanent impairment greater than 10% as required by s 66(1) of the 1987 Act.
By notice dated 23 August 2024 issued pursuant to s 78 of the 1998 Act, the insurer accepted that the applicant sustained the right shoulder injury. However, the insurer disputed the applicant’s entitlement to permanent impairment compensation on the basis that it disputed that the applicant sustained a cervical spine injury in accordance with ss 4 and 9A of the 1987 Act, it disputed that the applicant sustained a consequential condition of the cervical spine and it also disputed that the applicant had sustained permanent impairment greater than 10% as required by s 66(1) of the 1987 Act. The insurer also disputed the applicant’s entitlement to weekly compensation on the basis that the applicant had no rateable impairment of the left wrist and it disputed that the applicant had total or partial incapacity to work resulting from the injury as required by s 33 of the 1987 Act.
The applicant sought a review of the insurer’s decision dated 21 June 2023 on the basis that it alleged that the applicant was unfit for employment from October 2023 to January 2024, relying on a medical report of Dr Jay Davé dated 26 October 2023, a Certificate of Capacity of Dr Amir dated 30 November 2023 and a Functional and Vocational Assessment Report of High Performance Health dated 9 January 2024.
By notice dated 16 September 2024 issued pursuant to s 287A of the 1998 Act, the insurer maintained its decisions dated 21 June 2023 and 25 January 2024.
There is no dispute that the applicant sustained:
(a) right shoulder frank injury on 18 November 2022 which resulted in an aggravation of pre-existing degenerative pathology within the right shoulder, and
(b) left wrist carpal tunnel syndrome with a deemed date of injury of 18 November 2022.
The matters in dispute are:
(a) whether the applicant sustained injury to the cervical spine in the nature of a disease pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act, with a deemed date of injury of 18 November 2022;
(b) whether the left upper extremity (wrist) can be included in a referral to a Medical Assessor in relation to a claim pursuant to s 66 of the 1987 Act because there is no evidence of assessment of Whole Person Impairment (WPI) in that regard, and
(c) the extent and quantification of the applicant’s entitlement to:
(i)weekly compensation pursuant to ss 33 and 37 of the 1987 Act, noting that the applicant seeks weekly compensation for a closed period from
4 October 2023 to 25 January 2024, and(ii)permanent impairment compensation pursuant to s 66 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
At a conciliation/arbitration hearing, conducted by MS Teams on 10 December 2014, Mr Edward McMahon, counsel, appeared for the applicant, instructed by Turner Freeman Lawyers. Mr Daniel Stiles, counsel, appeared for the respondent, instructed by Hicksons Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply to ARD (Reply) and attached documents;
(c) Application to Admit Late Documents (AALD) filed by the applicant dated
4 April 2024 (admitted into evidence by consent), and(d) AALD filed by the respondent dated 4 April 2024 (admitted into evidence by consent).
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Applicant’s evidence
In a statement dated 15 July 2024, the applicant stated that:
(a) he has been a director and employee of the respondent and worked for the respondent as a concreter for about 35 years;
(b) throughout the latter half of 2022, he began to feel the sensation of pins and needles in his left hand. He was diagnosed with carpal tunnel and received treatment which has improved the symptoms;
(c) in about December 2022, the applicant felt left shoulder pain in the course of his work when he was lifting a piece of timber which weighed about 30kg;
(d) he experienced worsening right shoulder pain which also radiates to the right side of his neck;
(e) the applicant attended Dr Mazin Amir, general practitioner. An ultrasound showed a tear of the right rotator cuff. The applicant underwent physiotherapy and although the applicant’s right shoulder symptoms have improved, he continues to experience pain and restrictions;
(f) on 19 August 2023, the applicant underwent an MRI of the right shoulder, which showed a partial thickness tear in his right shoulder;
(g) on 26 October 2023, the applicant attended Dr Jay Davé who advised the applicant to hold off returning to physical work, referred the applicant for a cortisone injection and advised him to continue with conservative treatment;
(h) the applicant undertook light work duties between November 2022 and January 2023, did not work at all between January 2023 and October 2023, worked about one day per week in a managerial capacity for the respondent from October 2023 to January 2024. The applicant then returned to full-time work as a manager of the respondent performing light physical duties from about January 2024. The applicant no longer performs any heavy manual work, and
(i) because of the injury, the applicant continues to experience right shoulder pain, the trapezius muscle at the base of his neck on the right side is often stiff and he has difficulty lifting weights with his right arm above shoulder height and using his right arm.
In a supplementary statement dated 4 December 2024, the applicant stated that:
(a) he worked as a concreter for the respondent since 1999 and his duties included: pouring, spreading and leveling concrete; operating a trowelling machine, cutting lines in concrete with power cutters; lifting materials weighing up to 40kg; and administrative tasks as a director of the respondent;
(b) concreting is physically very hard work and he often had muscle aches, strains and discomfort after work, which he thought of as part of the job;
(c) he does not recall any neck injuries nor neck pain prior to the work injury;
(d) the applicant experienced left wrist pain and discomfort which worsened by mid-November 2022. He was subsequently diagnosed with bilateral carpal tunnel syndrome;
(e) the applicant injured his right shoulder at work lifting a heavy timber board with his right arm to protect his left hand. The applicant reported both his left wrist and right shoulder injuries on 18 November 2022. When the applicant injured his right shoulder, he felt pain that spread to the back of his neck and head, but his main focus was the pain in his right shoulder. The applicant did not report any neck pain or discomfort because he thought it came from his right shoulder injury;
(f) The applicant attended Dr Masin Amir, general practitioner, and was referred to Dr Jay Davé, orthopaedic surgeon. The applicant underwent conservative treatment;
(g) the applicant ceased working on around 22 December 2022;
(h) the insurer ceased to pay the applicant weekly compensation from October 2023;
(i) the applicant would struggle to work as a building associate, residential site supervisor and delivery driver because of his shoulder pain and physical restrictions at that time, which prevent him from handling heavy equipment or materials required for such roles;
(j) the applicant’s shoulder injury stopped him from lifting heavy boxes or suitcases, which are tasks that delivery drivers or Uber drivers often do. In addition, the applicant does not own a personal car and has no experience with delivery driving;
(k) the applicant does not have good computer skills and mainly uses paper for administration. The applicant’s daughter does most computer work that is required;
(l) the applicant has been a concreter for 35 years or more. He does not know anything else and all his training and experience is in that industry. His only formal qualification is a concreting license;
(m) from October 2023 to January 2024, the applicant worked approximately one day per week in a managerial capacity for the respondent. In that capacity, the applicant’s work was limited to handling paperwork and responding to important client phone calls, for about six hours per day;
(n) on 25 January 2024, the applicant returned to full-time work as a manager, focusing on lighter tasks like making estimations, providing quotations, supervising on-site work and giving instructions. The applicant no longer does heavy labour;
(o) although his left wrist pain has improved, the applicant still experiences occasional flare-ups of left wrist pain, especially with frequent use, and
(p) the applicant’s right shoulder has improved but has not fully healed to its condition before the injury and the applicant still experiences occasional pain and stiffness in his right shoulder as well as soreness in his neck muscles which can limit his range of motion. Sometimes, the pain spreads from the applicant’s shoulder to his neck and the back of his head. The pain is worsened if the applicant uses his right arm too much and he avoids lifting weights above shoulder height with his right arm.
Treating medical evidence
The treating medical evidence is not in contention and includes reports and clinical records of numerous treating practitioners and investigations.
On 29 December 2022, an ultrasound right wrist was reported to show enlargement of the median nerve, suggestive of carpal tunnel syndrome.
In a report dated 18 January 2023, Dr Chris Scott, hand surgeon, reported that ultrasound examinations of both wrists showed swelling of the median nerves consistent with a diagnosis of bilateral carpal tunnel syndrome, however the applicant is presently essentially asymptomatic. Dr Scott stated that the applicant could return to normal work duties. Dr Scott said that activities which involve repetitive or prolonged gripping, particularly when combined with wrist flexion or with holding vibrating power tools could aggravate the applicant’s symptoms.
In a report dated 7 March 2023, Dr Chris Scott, hand surgeon, diagnosed bilateral carpal tunnel syndrome. Dr Scott stated that any work related exacerbation or aggravation of his symptoms had resolved completely and ceased by 18 January 2023. Dr Scott cleared the applicant to return to all pre-injury duties on 18 January 2023.
On 19 August 2023, an MRI Right Shoulder was reported to show partial thickness articular sided tear of the supraspinatus tendon with an area suggestive of a full-thickness tear in certain spots, and also tendonitis, bursitis and tendinopathy of the long head of the biceps, along with a possible subscapularis tear.
In a report dated 26 October 2023, Dr Jay Davé and Dr Richard Allom, orthopaedic surgeons, stated a diagnosis of rotator cuff tear involving the supraspinatus and subscapularis at the most proximal margin and significant degenerative changes in the acromioclavicular joint. The doctors recommended that the applicant hold off returning to any form of physical work at this stage. The doctors stated that it was reasonable that the applicant continued in a managerial role at this stage and not undertake any lifting, carrying or overloading his shoulder.
In a report dated 6 November 2023, Dr Jay Davé, orthopaedic surgeon, stated a diagnosis of partial tear of the supraspinatus and of the subscapularis with subluxation of the biceps tendon, along with tendonitis and bursitis. Dr Davé stated that the applicant could continue in his managerial role as well as office-based duties until he completed physiotherapy, a cortisone injection and was reviewed again on 16 January 2024.
On 10 November 2023, the applicant underwent a steroid injection into the right AC joint.
In a report dated 18 January 2024, Dr Jay Davé stated that the applicant has a full thickness tear of the supraspinatus. It stated that the applicant feels ready to return to a managerial position and light work lifting less than 7kg.
In a report dated 29 February 2024, Dr Jay Davé expressed the opinion that the applicant had current capacity to work as a manager on a full-time basis, but avoiding lifting greater than 7kg and avoid lifting above shoulder height level. Dr Jay noted that the applicant had already returned back to work as a manager with the respondent and he was ideally suited to do that.
Other medical evidence
Dr Ron Muratore, sport and exercise physician, qualified by the respondent
In a report dated 14 February 2023, Dr Muratore stated a diagnosis of right rotator cuff tendonitis and right bicipital tendonitis with a possible SLAP tear. Dr Muratore expressed the opinion that the applicant sustained an injury to his right shoulder as a consequence of the nature and conditions of his work, and to a lesser extent, the aging process. Dr Murotore did not consider that the applicant had sustained an aggravation of any pre-existing condition. Dr Muratore recorded that the applicant stated that the work incident in November 2022 involved his left wrist which was diagnosed as carpal tunnel syndrome and which resolved almost completely with conservative treatment. On examination, Dr Muratore found no abnormality of the applicant’s neck.
In a supplementary report dated 31 March 2023, Dr Muratore stated that the applicant was currently fit to work full-time hours being eight hours per day, five days per week, working modified duties, with restrictions that he should not lift more than 10kg above waist height and should do no work above shoulder height. Dr Muratore stated that the applicant’s right shoulder pathology is separate to the carpal tunnel. Dr Muratore expressed the opinion that the applicant’s work as a concreter over many years had led to the pathology in his wrists and his shoulder.
Dr Alan Skapinker, injury management consultant
In a report dated 13 December 2023, Dr Alan Skapinker, injury management consultant (musculoskeletal and psychological), expressed the opinion that the applicant was currently, until review in January 2024, fit for managerial as well as office-based work, working eight hours per day, five days per week, subject to restrictions from lifting weights heavier than 5kg to chest height and no above shoulder work using the applicant’s right arm. Dr Skapinker agreed that the vocational role of Building Associate/Site Supervisor would be suitable employment. Dr Skapinker did not agree that the other two identified roles would be suitable employment because they required lifting.
In a report dated 23 January 2024, Dr Skapinker stated that the applicant reported a considerable improvement of his right shoulder symptoms. Dr Skapinker expressed the opinion that the applicant is fit to work eight hours per day, five days per week, working managing the respondent and the three jobs identified to be suitable for him in the Vocational Assessment, being Building Associate/ Site Supervisor, Personal Transport Service Delivery Driver, subject to restrictions from lifting weights heavier than 10kg to waist level, lifting above shoulder level using the right arm above 5kg, pushing and pulling above 15kg. Dr Skapinker did not agree with the current work Certificate of Capacity as written by Dr Amir because Dr Davé stated in his report dated 26 October 2023 that the applicant was fit for managerial and office work and, further, the applicant told Dr Skapinker that he had been performing managerial and supervisory work in his business. Dr Skapinker stated that the applicant reported that he wished to continue running his business with the aid of contractors and was not interested in finding another job.
Assessment Reports
In an Initial and Workplace Assessment Report dated 14 February 2023, Pinnacle Rehab stated that it assessed that there were no identifiable suitable duties which the applicant could complete until he was cleared to lift up to 15kg repetitively for a full working day, due to the heavy and repetitive nature of his pre-injury role. The applicant reported that he would need to be very close to his pre-injury capacity to resume work.
In a Vocational Assessment Report dated 6 June 2023, Pinnacle Rehab set out a return-to-work goal that the applicant was to return to safe and durable suitable employment with a different employer in one of the following identified vocational options:
(a) Building Associate (specifically: Residential Site Supervisor);
(b) Personal Transport Service, and
(c) Delivery Driver (Van or Car).
In a Return to Work and Recovery Plan dated 3 August 2023, Pinnacle Rehab stated that the applicant did not want to commence job-seeking sessions until he obtained recovery timeframes to pre-injury duties or maximum medical improvement from his Nominated Treating Doctor (NTD). The plan maintained the same return-to-work goal and the identified vocational options set out in the Vocational Assessment report dated 6 June 2023.
In a Comprehensive Progress Reports dated 14 August 2023 and 19 September 2023, Pinnacle Rehab noted that the applicant had not progressed in accordance with the Return to Work plan dated 3 August 2023. The report stated that the applicant had not formally job-detached from his pre-injury role as he was a self-employed concrete worker. It stated that the applicant did not want to commence job-seeking sessions until he obtained recovery timeframes to pre-injury duties or maximum medical improvement from his NTD. The report maintained the same return-to-work goal and the identified vocational options set out in the Vocational Assessment report dated 6 June 2023.
In a Return to Work & Recovery Plan dated 4 October 2023, Pinnacle Rehab set out a plan for the applicant’s recovery and return to work based on an assessment on 24 May 2023. The plan noted that the applicant was currently certified with capacity for some form of employment by Nominated Treating Doctor (NTD), Dr Mazin Amir, for the period from
15 September 2023 to 13 October 2023, with restrictions that the applicant could work eight hours per day, five days per week, with a lifting/carrying capacity up to 7.5kg, a pushing/pulling capacity up to 7.5kg and must avoid repetitive and hand tools work. The plan noted that the applicant did not want to commence job-seeking sessions until he obtained recovery timeframes to pre-injury duties or maximum medical improvement from his NTD.In a Comprehensive Progress Report dated 24 October 2023, Pinnacle Rehab noted that the applicant maintained that he was not planning on obtaining a new job, reporting that he wanted to work in his company and requested to close rehabilitation services.
In a Functional and Vocational Assessment Report dated 9 January 2024, High Performance Health noted the recommendation of the applicant’s orthopaedic surgeon Dr Jay Davé and Dr Richard Allom dated 26 October 2023 that the applicant should hold off returning to any physical work and should work only in a managerial role and not undertake any lifting, carrying or overloading of his shoulder. The report stated that the applicant could not return to pre-injury duties. The report stated that the applicant was assessed to be able to return to only director and supervision roles only at this stage. The report stated that suitable employment for the applicant was as general manager of the respondent.
Certificates of Capacity
The evidence includes numerous Certificates of Capacity. Relevantly:
(a) in respect of the period from 5 October 2023 to 5 November 2023, the applicant was certified to have capacity for some type of employment for eight hours per day, five days per week, subject to restrictions of: lifting/carrying up to 7.5kg; pushing/pulling up to 7.5kg; and avoiding repetitive and hand tools work;
(b) in respect of the period from 2 November 2023 to 30 November 2023, by Certificate of Capacity dated 30 November 2023, the applicant was certified to have no current work capacity for any employment;
(c) in respect of the period from 23 December 2023 to 2 May 2024, by Certificate of Capacity dated 18 April 2024, the applicant was certified to have capacity for some type of employment for eight hours per day, five days per week, subject to restrictions of: lifting/carrying up to 7kg both hands to the waist level; no lifting above the shoulders; standing as tolerated; pushing/pulling up to 7kg; bending/twisting/squatting as tolerated; avoiding repetitive and hand tools work; and “management role and office base duties till orthpaedic [sic] review on 16/1/24, restriction of lefting [sic] >5kg using both hand to the waist level, no lefting [sic] above the shoulders.
Other evidence
Other evidence includes payroll summaries, list of payments and wage schedules.
Independent medical evidence
Dr Richard Powell, orthopaedic surgeon, qualified by the respondent
In a report dated 18 July 2023, Dr Powell stated a diagnosis of rotator cuff pathology, mild impingement and some bicipital tendinopathy. Dr Powell considered that the right shoulder injury was the result of the applicant’s employment but the carpal tunnel syndrome was likely to be idiopathic. Dr Powell did not consider that the applicant could return to his full pre-injury duties. Dr Powell recommended suitable duties with restrictions avoiding repetitive use of the right upper limb, particularly away from the body or above shoulder height and a lifting restriction of 2-3kg with the right arm.
In a report dated 26 September 2023, Dr Powell expressed the opinion that there was a component of pre-existing degenerative pathology within the shoulder and that the nature and conditions of the applicant’s employment had aggravated an underlying degenerative disease process. Dr Powell maintained his opinion that the applicant could work suitable duties subject to restrictions contained in his original report.
In a report dated 24 July 2024, Dr Powell set out a history of the applicant’s right shoulder and left wrist injuries. In relation to the applicant’s cervical spine symptoms, Dr Powell stated that there was no history of any specific injury involving the cervical spine and the applicant indicated that his neck symptoms developed in a gradual fashion. Dr Powell stated that the applicant complained of some intermittent symptoms of right sided neck pain accompanied by headaches and stiffness. On examination, Dr Powell found some mild generalised neck stiffness although there was no other localising signs or features of radiculopathy. Dr Powell stated that the applicant has undergone no investigation, specialist opinion or treatment in relation to the cervical spine.
Dr Powell concluded that the applicant did sustain a right shoulder injury in his employment which was a frank injury that in turn resulted in aggravation of some pre-existing although previously asymptomatic degenerative pathology within the right shoulder. Dr Powell considered that the applicant’s employment represented the main contributing factor in the permanent aggravation of the underlying degenerative disease process involving the right shoulder.
Dr Powell diagnosed cervical spondylosis which is essentially constitutional in nature, right shoulder rotator cuff pathology, bicipital tendinitis and AC joint degeneration which remained mildly symptomatic and functionally restricted. Dr Powell stated that the applicant has also been diagnosed with left-sided carpal tunnel syndrome and remains mildly symptomatic although clinical examination was then unremarkable.
Dr Powell stated that he could find no evidence that the applicant had sustained a specific injury to cervical spine in the course of his employment. Dr Powell stated that the applicant claims non-specific neck symptoms which developed in a gradual fashion without any specific precipitating incident. Dr Powell stated that the clinical examination revealed mild generalised restriction in range of motion though no other localising signs. Dr Powell stated that, as far as he was aware, the applicant had undergone no investigation, treatment or specialist review in relation to the cervical spine. Dr Powell stated that, therefore, on the basis of the available information, he does not believe that there is sufficient evidence to conclude that the applicant sustained an injury to the cervical spine as a result of his employment.
Dr Powell expressly disagreed with Dr Bodel’s assessment of the cervical spine which was set out in his report dated 20 February 2024. Dr Powell stated that he did not believe that a definitive causal link has been identified between the accepted workplace incident and any defined cervical spine condition. Dr Powell noted that the applicant has undergone no investigation, treatment or specialist review in relation to the cervical spine. Dr Powell noted that the clinical examination that day was characterised by only a mild generalised restriction in range of motion without any other localising signs or features of radiculopathy.
Dr Powell assessed 2% total WPI, calculated on the basis of 2% WPI for the right shoulder. Dr Powell stated that there was no assessable impairment of the applicant’s right wrist and hand (which appears should have stated the left wrist) on the basis that on clinical examination that day, Dr Powell could find no ongoing clinical features of carpal tunnel syndrome though he acknowledged the applicant’s persisting symptoms. Dr Powell stated that there was no evidence of assessable impairment of the applicant’s cervical spine on the basis of his clinical examination of the applicant that day.
Dr James Bodel, orthopaedic surgeon, qualified by the applicant
In a report dated 20 February 2024, Dr Bodel stated a diagnosis of full thickness tear of the supraspinatus tendon in the region of the right shoulder which was still troublesome and the aggravation of carpal tunnel syndrome which had settled. Dr Bodel considered that the applicant’s employment had been the substantial contributing factor to the injury.
On examination, Dr Bodel noted that the applicant has: tenderness in the trapezius muscle at the base of the neck on the right side and guarding in that area; restricted range of neck flexion, extension and rotation in all directions, which is most restricted on rotation to the left; asymmetry of neck movement; tenderness over the rotator cuff anteriorly; and a restricted range of shoulder movement.
Dr Bodel considered that the applicant is totally and permanently incapacitated for work for which he has appropriate levels of education, physical fitness, training and experience. Dr Bodel stated that the occupations listed by the rehabilitation facility are appropriate and could be considered but they would require the applicant to be retrained and were not entirely suitable because they risked further aggravation to the applicant’s shoulder. Dr Bodel stated that the applicant would need a graduated return to work starting at four hours a day, three days a week, and in any event it was unlikely that the applicant would ever be able to work more than 20 to 25 hours a week.
In a separate report dated 20 February 2024, Dr Bodel stated that he assessed 13% total WPI, calculated on the basis of 7% WPI for the cervical spine and 6% for the right upper extremity. Dr Bodel stated that he did not see any objective sign of persisting median nerve pathology in either wrist.
In relation to the applicant’s cervical spine, Dr Bodel stated:
“He has a rateable restriction of right shoulder movement and he also has neck pain. The injury that caused his right shoulder injury was also a traction injury which has caused some asymmetry of neck movement.
He has a DRE Cervical Category II level of assessable impairment in accordance with the description in Table 15-5 on Page 392 of AMA5. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and the base rating for this category is a 5% Whole Person Impairment.
This claimant’s Activities of Daily Living have been moderately compromised in accordance with Item 4-34 and Item 4-35 on Page 28 of the Fourth Edition of the WorkCover Guidelines, giving a 2% loading and a 7% Whole Person Impairment overall.”
In a report dated 14 September 2024, Dr Bodel stated:
“I am satisfied that employment is the substantial contributing factor to the injury to the cervical spine. The nature of his work involves heavy lifting, pushing, pulling and other manual activities which can cause aggravation, acceleration, exacerbation or deterioration to an underlying disease process in the cervical spine which is the case at this time.”
In relation to the report of Dr Powell, Dr Bodel stated:
“Dr Powell has examined Mr Leuzzi on 26th April 2024. His clinical findings equate to the levels of impairment that he has given. I found different clinical findings at the time of my examination, which explains the difference in the outcome of the WPI assessments.”
Submissions
Counsel’s submissions were recorded and have been considered in full.
FINDINGS AND REASONS
Whether the applicant sustained injury to the cervical spine in the nature of a disease pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act
Submissions
On behalf of the applicant, Mr McMahon submitted that a commonsense evaluation of the causal chain is required in accordance with the legal test of causation set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[1] (Kooragang). Mr McMahon stated that the applicant does not rely on a frank injury, but rather injury in the nature of a disease nor aggravation, acceleration, exacerbation or deterioration of a disease caused by the applicant’s work. Mr McMahon noted that the respondent now accepts liability in relation to the right shoulder and left wrist. Mr McMahon noted the applicant’s evidence in relation to his strenuous work duties and the nature and conditions of his employment. Mr McMahon submitted that Dr Powell did not properly address the issue of whether the applicant had a cervical spine condition in the nature of a disease nor aggravation, acceleration, exacerbation or deterioration of a disease caused by the applicant’s work. Mr McMahon submitted that, having regard to various evidence that he referred to, the opinion of Dr Bodel should be preferred and accepted. Mr McMahon submitted that the Commission should accept, on the balance of probabilities, that the applicant’s employment was the substantial contributing factor to injury to the applicant’s cervical spine pursuant to s 4(b)(i) and/or
s 4(b)(ii) of the 1987 Act.[1] (1994) 35 NSWLR 452; 10 NSWCCR 796.
On behalf of the respondent, Mr Stiles submitted that: there is no objective medical evidence which justifies a finding that the applicant sustained any injury to his cervical spine; in particular, Mr Stiles submitted that there is no radiological investigation of the cervical spine nor any medical certificates nor Certificates of Capacity which make reference to the cervical spine. Further Mr Stiles noted that in February 2023, Dr Muratore found no abnormality of the applicant’s spine on examination; it was not until Dr Bodel’s report dated 20 February 2024 that there was any reference to a cervical spine condition nor injury to the applicant’s cervical spine; Dr Bodel did not provide any diagnosis in relation to the cervical spine; the applicant’s evidence does not establish injury to the cervical spine, there was no diagnosis of a cervical spine condition, no investigations of the cervical spine and no evidence of pathological change which justifies a finding of injury pursuant to s 4 of the 1987 Act in relation to the cervical spine.
The law
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Both s 4(b)(i) and s 4(b)(ii) of the 1987 Act require that the applicant’s employment was the “main contributing factor” to the injury.
In AV v AW,[2] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“The following may be taken from the above:
(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[2] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[3] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[4]
[3] [1964] HCA 34; 110 CLR 626.
[4] Semlitch, at [640].
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[5]
[5] Semlitch, at [635].
In Cook v Midpart Pty Ltd trading as McDonalds Forster & Anor,[6] the New South Wales Court of Appeal set out a useful analysis of the application of s 4(b)(ii) of the 1987 Act (albeit prior to more recent amendments to the 1987 Act) generally and also specifically in the context of the natural progression of an underlying degenerative condition.
[6] [2008] NSWCA 151 at [38] to [54].
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang.
Although the High Court in Comcare v Martin[7] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
[7] [2016] HCA 43, at [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[8] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[8] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
Credibility of the applicant’s evidence
The applicant’s credibility has not been challenged and no application was made for leave to cross-examine. There is no witness evidence which directly addresses and challenges the applicant’s evidence in relation to his work duties and generally.
Having regard to the evidence as a whole and for the reasons set out above, I do not consider that there is any compelling reason for me to not accept the credibility and reliability of the applicant’s evidence.
On that basis, I feel a sense of persuasion and I accept the applicant’s evidence as a truthful and honest account of the relevant factual events, particularly in relation to the nature of the applicant’s work duties and his subjective experience of his physical condition.
The nature and conditions of the applicant’s employment
For the reasons set out above, I accept the applicant’s evidence as to the nature and conditions of his employment with the respondent.
In particular, I accept that during the course of the applicant’s employment with the respondent over a period of some 35 years, he performed physically hard work which included: pouring, spreading and leveling concrete; operating a trowelling machine, cutting lines in concrete with power cutters; and lifting materials weighing up to 40kg.
Disease and aggravation, acceleration, exacerbation or deterioration of disease
I note that there is no dispute that the applicant sustained a right shoulder frank injury on
18 November 2022 which resulted in an aggravation of pre-existing degenerative pathology within the right shoulder and, also, left wrist carpal tunnel syndrome with a deemed date of injury of 18 November 2022.For the reasons that I have set out above, I accept the applicant’s evidence of his subjective experience in that regard.
Having carefully considered the evidence as a whole and counsel’s submissions, I do not feel a sense of persuasion and I am not satisfied on the balance of probabilities that the applicant sustained an injury to his cervical spine pursuant to s 4(b)(i) nor 4(b)(ii) of the 1987 Act, for the following reasons:
(a) Dr Powell did consider the issue of whether the applicant developed a spinal injury in the nature of a disease which developed in a gradual fashion over time without any specific precipitating incident. However, he rejected that proposition on the basis that, considering the evidence, he was not satisfied that the applicant had developed any defined cervical spine condition;
(b) there is no evidence of any neck injury or symptoms prior 18 November 2022;
(c) the applicant gave evidence about his strenuous work duties and the nature and conditions of his employment but he did not specifically relate that to his neck symptoms apart from the accepted injury on 18 November 2022;
(d) there is some inconsistency in the history of the applicant’s neck symptoms in the various evidence. The applicant gave evidence that he did not experience any neck symptoms prior to the accepted injury on 18 November 2022. The applicant gave evidence by way of statement that, when he injured his right shoulder on or about 18 November 2022, the applicant felt pain that spread to the back of his neck and head, but his main focus was the pain in his right shoulder. However, Dr Powell reported that the applicant claimed non-specific neck symptoms which developed in a gradual fashion without any specific precipitating incident;
(e) the applicant did not report any neck injury or symptoms when he reported the other injuries on 18 November 2022. Whilst the applicant explained that he did not report any specific neck injury or symptoms at that time because he thought it was part of the shoulder injury, there is also no evidence that the applicant subsequently reported neck symptoms at any time prior to reporting neck symptoms to Dr Bodel;
(f) there is no evidence that the applicant has undergone any investigation, treatment or specialist review in relation to the cervical spine;
(g) Dr Bodel reported on 20 February 2024 that on clinical examination, he found that the applicant had tenderness in the trapezius muscle at the base of the neck on the right side and guarding in that area, restricted range of neck flexion, extension and rotation in all directions, but mostly on the left, and asymmetry of neck movement. Dr Bodel stated that whilst there was asymmetry of movement and guarding, there was no clinical sign of radiculopathy of the cervical spine;
(h) Dr Powell reported on 24 July 2023 that on clinical examination, he found only a mild generalised restriction in range of motion without any other localising signs or features of radiculopathy. That is consistent with the evidence of Dr Muratore, sport and exercise physician, who reported on 14 February 2023 that he found no abnormality of the applicant’s neck on examination;
(i) both Dr Bodel and Dr Powell acknowledged that there was no clinical sign of cervical radiculopathy and that is consistent with the treating medical evidence;
(j) I accept and prefer the opinion of Dr Powell because, having regard to the evidence as a whole and the matters referred to above, I consider that his findings on examination are most consistent with the findings of Dr Muratore and the clinical evidence as a whole and, further, adopting a commonsense approach to the evidence, I consider that Dr Powell’s opinion provides a logical and likely explanation for the applicant’s cervical symptoms;
(k) in the circumstances, I do not feel an actual persuasion and I am not satisfied that on the balance of probabilities, there is a causal link between the applicant’s work and any cervical spine condition nor any aggravation, acceleration, exacerbation or deterioration of disease;
(l) I am not satisfied on the balance of probabilities that the applicant contracted a disease of the cervical spine in the course of his employment, nor that the applicant’s employment was the main contributing factor to the applicant contracting any disease, and
(m) I am not satisfied on the balance of probabilities that the applicant sustained an aggravation, acceleration, exacerbation or deterioration in the course of his employment of any disease of the cervical spine, nor that the applicant’s employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of disease.
Accordingly, I find for the respondent in relation to the claimed injury to the cervical spine pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act.
Whether the left upper extremity (wrist) can be included in a referral to a Medical Assessor in relation to a claim pursuant to s 66 of the 1987 Act because there is no evidence of assessment of WPI of the left wrist
Submissions
On behalf of the applicant, Mr McMahon submitted that the left wrist should be included in a referral to a Medical Assessor notwithstanding that neither Dr Powell nor Dr Bodel assessed WPI of the left wrist; the applicant relies on the decisions of Sharma v Woolworths Group Limited [ 2024] NSWPIC 35 (Sharma), particularly at [90], [102] and [112] and Shankar v Ceva Logistics (Australia) Pty Ltd [2021] NSWPICPD 18, particularly at [63] and [73].
On behalf of the respondent, Mr Stiles submitted that the law is not fully settled and there is presently some competing decisions in relation to whether an assessment of 0% WPI is a medical dispute; the respondent relies on the decision of Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53 at [49] – [52]; neither Dr Bodel nor Dr Powell gave an assessment of WPI of the left wrist; in the present circumstances where there is no assessment of the left wrist in either case, there is nothing to warrant a referral to a Medical Assessor; in the event that the applicant was not successful in his claim of injury to the cervical spine, there is no basis to refer the right shoulder and the left wrist to a Medical Assessor for assessment of WPI because, together, those claims for WPI do not meet the 10% threshold required by
s 66 of the 1987 Act.
The law
Section 66(1) of the 1987 Act states:
“66 Entitlement to compensation for permanent impairment
(1)A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”
Consideration
Dr Powell assessed 2% total WPI, calculated on the basis of 2% WPI for the right shoulder. Dr Powell expressed the opinion that there was no assessable impairment of the applicant’s right wrist and hand (which appears should have stated the left wrist) nor cervical spine.
Dr Bodel assessed 13% total WPI, calculated on the basis of 7% WPI for the cervical spine and 6% for the right upper extremity. Dr Bodel expressed the opinion that there was no rateable impairment in either wrist.
In Sharma, Principal Member John Harris stated at [111] – [112]:
“111. It is settled law that the injured worker must make a claim that is capable of being compensated, normally providing an assessment of a qualified medical practitioner, and claiming permanent impairment of at least 11%: Sukkar v Adonis Electrics Pty Ltd.[9]
112. If there is disagreement of the overall impairment, a medical dispute exists, and the injured worker is entitled to have the various body parts assessed. Accordingly, provided there is a valid claim of the overall impairment, the assessment of a particular body part does not have to meet the minimum threshold of at least 11% and can be assessed at 0%.”
[9] [2014] NSWCA 459 at [91] and [93]
In this case, there is no basis to remit any part of the matter to the President for referral to a Medical Assessor for determination of WPI because:
(a) my finding above is that I am not satisfied that there is any injury of the cervical spine pursuant to s 4(b)(i) nor s 4(b)(ii) of the 1987 Act;
(b) the applicant claims 6% WPI in respect of the right shoulder based on the report of Dr Bodel;
(c) neither Dr Bodel nor Dr Powell found any assessable impairment of the left wrist;
(d) given that I have found for the respondent in relation to the claimed injury to the cervical spine pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act, there is no evidence that the applicant received an injury that results in a degree of permanent impairment greater than 10%, and
(e) on that basis, the 10% threshold required by s 66 of the 1987 Act is not satisfied.
In the circumstances, it is not necessary for me to determine whether the left upper extremity (wrist) can be specifically included in a referral to a Medical Assessor in relation to a claim pursuant to s 66 of the 1987 Act.
Accordingly, I do not make any such referral.
Does the applicant have total or partial incapacity for work resulting from an injury and, if so, what is the extent and quantification of any entitlement to weekly compensation, pursuant to s 33 of the 1987 Act?
Submissions
On behalf of the applicant, Mr McMahon submitted that the applicant seeks compensation pursuant to s 37(3) of the 1987 Act; the parties have agreed that the indexed Pre-Injury Average Weekly Earnings (PIAWE) is $1,480 for the entire of the claim period, being from 4 October 2023 to 21 January 2024; various evidence including the applicant’s evidence, treating medical evidence and the reports of Dr Bodel, supports a finding that during the claim period the applicant could not work in suitable employment on a full-time basis during the claim period; having regard to the evidence, the Commission should be satisfied that the applicant had could not work in suitable employment on a full-time basis during the claim period; having regard to the evidence, the Commission should order payment of the claimed weekly compensation pursuant to s 37(3) of the 1987 Act.
On behalf of the respondent, Mr Stiles submitted that the parties have agreed that the indexed PIAWE is $1,480 for the entire of the claim period; however, the applicant has not discharged its onus of proof to satisfy the Commission that the applicant could not work in suitable employment on a full-time basis during the claim period; the evidence shows that from 25 January 2024, immediately following the end of the claim period, the applicant returned to full-time work with the respondent in a managerial/supervisor role, not performing heavy manual labour; it is not clear from the evidence why the applicant could not have been performing that work for the respondent, or worked in suitable employment with another employer, during the claim period, and earned $1,960 per week in such suitable employment; the applicant was certified fit for full-time duties from 5 October 2023; having regard to the evidence, the Commission should find that during the claim period, the applicant had capacity for full-time managerial work with the respondent or another employer in suitable employment; applying the statutory formula on that basis, the applicant has no entitlement to weekly compensation.
The law
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
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.
….”
Section 37(3) of the 1987 Act states:
“37 Weekly payments during second entitlement period (weeks 14–130)
...
(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 32A defines “current work capacity”, “no current work capacity” and “suitable employment” as follows:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”
“no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment”
“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.”
Item 8 of Schedule 3 to the 1987 Act defines “current weekly earnings” as follows:
“’Current weekly earnings’, of an injured worker in relation to a week, means whichever of the following is the greater amount--
(a) the worker's actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
Consideration
The applicant’s Wages Schedule and the insurer’s list of payments show that the insurer paid the applicant weekly compensation:
(a) pursuant to s 36 of the 1987 Act from 22 December 2022 to 22 March 2023 (13 weeks), and
(b) pursuant to s 37 of the 1987 Act from 23 March 2023 to 4 October 2023 (27.9 weeks).
The applicant now seeks weekly compensation for a closed period from 4 October 2023 to 25 January 2024 (16 weeks) pursuant to s 37(3) of the 1987 Act.
The respondent did not raise any issue in relation to the applicability of s 37(3) of the 1987 Act in the present case.
It does not appear to be in dispute and, having regard to the various Certificates of Capacity and the undisputed evidence that, during the claim period, the applicant worked six hours per week in a management role for the respondent, I find that during the claim period the applicant had current work capacity and returned to work for less than 15 hours per week.
Section 37(3) of the 1987 Act requires that weekly compensation is the lesser of:
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings, and
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
Both parties have now agreed that the applicant’s adjusted PIAWE for the purposes of calculation of weekly compensation is $1,480 for the entire of the claim period, being from 4 October 2023 to 25 January 2024. I note that 80% of $1,480 is $1,184.
The applicant asserts that his “current weekly earnings” for the purposes of calculating weekly compensation pursuant to s 37(3) of the 1987 Act is $222.65 per week, being the weekly amount that he actually earned working six hours per week in a managerial role for the respondent during the whole of the claim period.
The respondent has not disputed that, during the claim period, the applicant earned $222.65 per week working six hours per week in a managerial role for the respondent.
However, the respondent submits that the “current weekly earnings” that should be applied in this case is $1,960 per week, being the weekly amount that the applicant was able to earn in “suitable employment”, specifically full-time managerial work with the respondent or suitable employment with another employer.
I am required to determine the applicant’s “current weekly earnings”, which requires me to determine what, if any, weekly amount the applicant was able to earn in suitable employment during the claim period.
Having carefully considered the evidence as a whole and counsel’s submissions, I feel a sense of persuasion and I am satisfied on the balance of probabilities that the applicant was not able to earn income in suitable employment during the claim period, performing full-time work of Personal Transport Service and Delivery Driver because:
(a) the applicant’s evidence that his shoulder pain and physical restrictions at the time would have prevented him from performing repetitive arm and shoulder movements, handling heavy equipment or materials and lifting heavy boxes or suitcases has not been challenged; such evidence is consistent with the physical limitations recorded on the various Certificates of Capacity during the claim period; the applicant’s evidence that those roles would have likely required the handling of heavy equipment or materials or lifting heavy boxes of suitcases has not been challenged; I consider that it is consistent with common sense that such driving roles would have likely required repetitive arm and shoulder movements to steer the vehicle and physical handling or lifting of materials; I accept the applicant’s evidence which is not in contention that he does not own a personal car, he has no commercial driving experience, his only formal qualification is a concreting license, he has been a concreter for 35 years or more, all his training and experience is in that industry and he does not know anything else; Dr Skapinker did not agree that the role Personal Transport Service nor Delivery Driver (Van or Car) would be suitable employment because they required lifting and Dr Skapinker noted that the applicant was subject to restrictions from lifting weights heavier than 10kg to waist level, lifting above shoulder level using the right arm above 5kg, pushing and pulling above 15kg; on 20 February 2024, Dr Bodel reported that the applicant is totally and permanently incapacitated for work for which he has appropriate levels of education, physical fitness, training and experience; on 20 February 2024, Dr Bodel stated that the occupations listed by the rehabilitation facility are appropriate and could be considered but they would require the applicant to be retrained and were not entirely suitable because they risked further aggravation to the applicant’s shoulder; on 18 July 2023, Dr Powell recommended suitable duties with restrictions avoiding repetitive use of the right upper limb, particularly away from the body or above shoulder height and a lifting restriction of 2-3kg with the right arm;
(b) on the basis of the above matters, I accept on the balance of probabilities that the applicant would have had difficulty performing the work of Personal Transport Service and Delivery Driver.
Having carefully considered the evidence as a whole and counsel’s submissions, I feel a sense of persuasion and I am satisfied on the balance of probabilities that the applicant was not able to earn income in suitable employment during the claim period, performing full-time work of Building Supervisor because:
(a) I consider that it is consistent with common sense that such a role would require some computer skills; I accept the applicant’s evidence which is not in contention that his only formal qualification is a concreting license, he has been a concreter for 35 years or more, all his training and experience is in that industry and he does not know anything else; Dr Skapinker’s evidence that the role of Building Associate/Site Supervisor would be suitable employment is somewhat inconsistent with the reservations expressed by Dr Bodel; on 20 February 2024, Dr Bodel reported that the applicant is totally and permanently incapacitated for work for which he has appropriate levels of education, physical fitness, training and experience; on 20 February 2024, Dr Bodel stated that the occupations listed by the rehabilitation facility are appropriate and could be considered but they would require the applicant to be retrained and were not entirely suitable because they risked further aggravation to the applicant’s shoulder; on 18 July 2023, Dr Powell recommended suitable duties with restrictions avoiding repetitive use of the right upper limb, particularly away from the body or above shoulder height and a lifting restriction of 2-3kg with the right arm;
(b) on the basis of the above matters, I accept on the balance of probabilities that the applicant would have had difficulty performing the work of Building Supervisor.
Having carefully considered the evidence as a whole and counsel’s submissions, I do feel a sense of persuasion and I am satisfied on the balance of probabilities that the applicant was able to earn income, performing the work of manager of the respondent for the periods from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2024 on a full-time basis, and for the period from 2 November 2023 to 30 November 2023 on the basis of six hours per week because:
(a) during the entire of the claim period, the applicant was certified to have capacity to work full-time hours of eight hours per day, five days per week, subject to physical work restrictions, with the exception of the period from 2 November 2023 to 30 November 2023 when the applicant was certified to have no current work capacity for any employment;
(b) on 20 February 2024, Dr Bodel reported that the applicant would need a graduated return to work starting at four hours a day, three days a week, and in any event, it was unlikely that the applicant would ever be able to work more than 20 to 25 hours a week; Dr Bodel’s evidence in that regard is clearly inconsistent with the undisputed evidence that the applicant did return to full-time work in a managerial capacity the following day, on 25 January 2024; accordingly, I find Dr Bodel’s opinion in that regard not to be persuasive;
(c) it is not in contention that, during the entire of the claim period, the applicant actually did work for the respondent six hours per week in a managerial role not performing physical duties, and earnt $222.65 per week. That included the period from 2 November 2023 to 30 November 2023 when the applicant was certified to have no current work capacity for any employment;
(d) it is not in contention that immediately upon expiration of the claim period, on
25 January 2024, the applicant returned to full-time work for the respondent as a manager, focusing on lighter tasks like making estimations, providing quotations, supervising on-site work and giving instructions, not performing any heavy labour;(e) there is a considerable body of evidence which accepts that the applicant was able to perform managerial work (which did not involve physical work) for the respondent during the claim period: on 26 October 2023, Dr Jay Davé and Dr Richard Allom, orthopaedic surgeons, reported that the applicant could continue in a managerial role at that stage (avoiding physical work); on 6 November 2023, Dr Davé, recommended that the applicant continue in his managerial role as well as office-based duties until 16 January 2024; on 13 December 2023, Dr Alan Skapinker, injury management consultant, reported that the applicant was currently, until review in January 2024, fit for managerial and office-based work; on 9 January 2024, High Performance Health acknowledged that the applicant could perform director and supervision roles, such as the general manager of the respondent; on 18 January 2024, Dr Jay Davé reported that the applicant could return to a managerial position and light work lifting less than 7kg; in January 2024, Dr Skapinker, injury management consultant, reported that the applicant was fit to work eight hours per day, five days per week, managing the respondent; on 29 February 2024, Dr Davé reported that the applicant had current capacity to work as a manager on a full-time basis, but avoiding lifting greater than 7kg and avoid lifting above shoulder height level, and noted that the applicant had already returned back to work as a manager with the respondent and he was ideally suited to do that; Dr Davé’s report in that regard was given after the expiration of the claim period, nevertheless it is consistent with the applicant having similar capacity during the claim period; taken as a whole, I consider that evidence to be persuasive and strongly supportive of a finding that he applicant had capacity to perform managerial work for the respondent on a full-time basis during the claim period;
(f) I consider that the performance of such managerial work for the respondent on a full-time basis for the whole claim period, with the exception of the period from
2 November 2023 to 30 November 2023, is substantially consistent with the applicant’s incapacity as certified for those periods;(g) I consider that the performance of such managerial work for the respondent on the basis of six hours per week from 2 November 2023 to 30 November 2023 is substantially consistent with what actually occurred and the applicant’s actual capacity during that period notwithstanding that it is inconsistent with applicant’s incapacity as certified for that period;
(h) I consider that the performance of such managerial work for the respondent during the claim period is consistent with the applicant’s age in his late 50’s, his education, skills and work experience noting that he was a director and employee of the respondent for approximately 35 years, his only formal qualification is a concreting license, he has been a concreter for 35 years or more, all his training and experience is in that industry and he does not know anything else;
(i) I note that such role was not specifically identified as specific suitable employment in the return to work assessments, planning and occupational rehabilitation services that was provided to the applicant, however it is clear from the reports of those services that the applicant consistently maintained during the claim period his commitment to work only with the respondent and that he did not want to obtain any other employment; and
(j) the applicant has not given any evidence which denies, addresses or explains why he was not able to return to full-time work for the respondent in a managerial capacity during the claim period; in the absence of such denial or explanation by the applicant and having regard to the undisputed evidence that the applicant did return to full-time work in a managerial capacity on 25 January 2024, I consider that it is reasonable as matter of commonsense to draw an inference that the applicant did have capacity to work for the respondent in a managerial role not performing physical work during the claim period.
The applicant has not disputed the respondent’s assertion that the applicant’s earnings working full-time in a managerial role for the respondent during the claim period would have been $1,960 per week.
Having regard to the matters set out in s 32A of the 1987 Act and for the reasons set out above, I find that:
(a) the “current weekly earnings” that should be applied in this case for the period from 4 October 2023 to 1 November 2023 and from 1 December 2023 to
25 January 2024 is $1,960 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on a full-time basis, and(b) the “current weekly earnings” that should be applied in this case for the period from 2 November 2023 to 30 November 2023 is $222.65 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on the basis of six hours per week.
Applying the formula in s 37(3) of the 1987 Act, I calculate the applicant’s entitlement to weekly compensation during the claim period as follows:
Date from
Date to
PIAWE
Rate Claimed
Weekly Amount
Current Weekly Earnings
Entitlement
04.10.23
01.11.23
$1,480
80%
$1,184
$1,960
$nil
02.11.23
30.11.23
$1,480
80%
$1,184
$222.65
$961.35
01.12.23
25.01.24
$1,480
80%
$1,184
$1,960
$nil
In the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the weekly compensation amounts referred to above.
SUMMARY
On that basis, I determine that:
(a) award for the respondent in relation to the claimed injury to the cervical spine pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act;
(b) there is no basis to remit any part of the matter to the President for referral to a Medical Assessor for determination of WPI;
(c) during the claim period, the applicant had current work capacity and returned to work for less than 15 hours per week, and
(d) the “current weekly earnings” that should be applied in this case for calculation of the applicant’s entitlement to weekly benefits compensation pursuant to s 37(3) of the 1987 Act:
(i)for the periods from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2024, is $1,960 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on a full-time basis, and
(ii)for the period from 2 November 2023 to 30 November 2023, is $222.65 per week, being the weekly amount that the applicant would be able to earn during the claim period in “suitable employment”, specifically managerial work with the respondent on the basis of six hours work per week.
On that basis, it is appropriate to make the following orders:
(a) The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the 1987 Act as follows:
(i)$961.35 per week from 2 November 2023 to 30 November 2023.
(b) Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.
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