Lonergan v Woolworths Group Limited

DECISION OF PRESIDENT’S DELEGATE
CITATION:	Lonergan v Woolworths Group Limited [2022] NSWPIC 316
APPLICANT:	Craig Lonergan
RESPONDENT:	Woolworths Group Limited
PRESIDENT’S DELEGATE:	Parnel McAdam
DATE OF DECISION:	22 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; worker agreed to suffer 27% WPI; multiple failed surgeries; functional assessment of capacity conducted; workers treating doctors disagreed with assessed functional capacity; no approval from GP; consideration of all of the medical evidence; Held– that worker had no capacity, order made for weekly payments under section 38.
ORDERS MADE:	*1. The respondent is to pay the applicant weekly compensation at the rate of $657.60 per week pursuant to section 38 of the Workers Compensation Act 1987 on an ongoing basis.*

STATEMENT OF REASONS

BACKGROUND

Mr Lonergan was injured on 7 August 2013, and the results of that injury have had lasting effects on his employability to date.
The initial injury occurred when he was picking up cartons of water and felt pain in his right knee. Since that time, he has had treatment, both conservative and surgical, and has ultimately had five separate surgical procedures conducted on his knee, resulting in a total knee replacement in March 2020. This was said to lead to a “poor” result (by definition in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th edition).
As a result of his knee injury he suffered psychological symptoms, involving treatment with a psychiatrist and psychologist. For a number of years he suffered from an alcohol use disorder. The parties have agreed that Mr Lonergan suffers from 27% whole person impairment due to the knee injury.
The injury has undoubtedly led to catastrophic effects for Mr Lonergan’s health, mental state, employment prospects and prognosis.
On 29 March 2022, the respondent (Woolworths Group Limited) made a work capacity decision, reducing Mr Lonergan’s payments to $357.60 per week, on the basis of a capacity to earn of $300 per week. Mr Lonergan disputes that assessment and accordingly commenced the present proceedings in the Personal Injury Commission (the Commission).

Issues in dispute

The sole issue in dispute is Mr Lonergan’s capacity to work in suitable employment, as defined in section 32A of the Workers Compensation Act 1987 (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 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

Woolworths issued a dispute notice on 29 March 2022. That notice determined that
Mr Lonergan had capacity to work in suitable employment as a car park attendant, bus driver, and concierge driver. The role of concierge driver was relied on as the basis for the calculation of $300 per week.

The functional capacity evaluation reports

Two functional capacity assessments were conducted on Mr Lonergan – one of his physical capacity and one of his psychological capacity.
In terms of physical capacity, Mr Lonergan was said to have capacity for 5 hours per day, 4 hours per week. The capacity limitations are not particularly specific as they would be in a certificate of capacity, with reference to “reduced tolerance” for standing and walking, “limited tolerance” for stair climbing and knelling/squatting as “not recommended”. It is noted that
Mr Lonergan was reported to mobilise without mobility aids, but when shopping would use a trolley for support.
Pain in the right knee was said to be aggravated by walking, standing and bending knees. Prognosis was guarded on the basis of a risk for future injury.
Two important points I would note about the completion of the report: the assessment was conducted by an occupational therapist, rather than a doctor, and IPAR was apparently only provided with medical reports from 2014, predating the series of surgeries leading to Mr Lonergan’s knee replacement.
In terms of psychological capacity, Mr Lonergan was noted to have a flat effect and low mood during the assessment. At the time of the report Mr Lonergan was attending monthly sessions with his psychiatrist and psychologist. Mr Lonergan reported to be “going ok lately”, although he believed he was not “right” to return to employment at this time. The assessor’s opinion was that Mr Lonergan could return to work for 5 hours per day, 2 days per week, upgrading over time.
Detailed comments about areas of functioning were provided. Testing was performed and
Mr Lonergan’s scores for depression and anxiety fell in the extremely severe range, whilst stress fell in the severe range, although it was noted that these findings were not consistent with self-reported symptoms at the time of assessment.

The vocational assessment report

This report is dated 2 March 2022. Per the section 78 notice, the roles of car park attendant, bus driver, and concierge driver were said to be suitable, for 10 hours per week. At the time of the report, Mr Lonergan was certified with no capacity for any work.
Mr Lonergan’s education and qualifications were listed, which were limited, with a year 10 certificate and a welder trade certificate. Mr Lonergan’s employment history was outlined, roles which generally involved labouring and manual work. Transferrable skills were identified.
A labour market analysis of each role was conducted as part of the report.
For car park attendant, the general duties, consistent with what would be expected, included standard ticketing and money exchange types of activities. In addition, activities included checking on vehicles, collecting rubbish, and parking warden duties. Three employers were contacted and in each case advised that Mr Lonergan would be suitable, or at least considered, for the role. Each role required walking to monitor the car park or ensuring vehicles were parked correctly.
For bus driver, the main duties are obviously the driving of a bus, with additional requirements to assist passengers and the like. The physical demands were said to be sedentary to medium, and requires the climbing of steps to enter and exit the vehicle cab. Squatting and kneeling may be required for loading baggage and maintenance work and repetitive leg movements are required. According to the sourced labour market information, however, these demands would not be present. In each case, the employers contacted indicated that Mr Lonergan would be suitable or considered for the role.
For concierge driver, this role generally involves assisting people at a parking facility, or an entertainment venue, or a shopping centre. It is said to be sedentary to light physical demand, involving sitting at a counter with occasional walking. The three employer contacts were of the valet parking variety, and physically mainly involved the parking of vehicles. Again, each employer indicated that Mr Lonergan would be considered for the role.
It is noted that the functional assessments and employer contacts focussed largely on Mr Lonergan’s physical capacity rather than his psychological capacity. The discussion of Mr Lonergan’s psychological capacity focussed on his ability to organise himself and make decisions, rather than on Mr Lonergan’s symptomatology due to his recognised severe psychological condition.

Report of Dr Saboor

Dr Saboor is a psychiatrist who provided an independent medical report for the respondent, dated 30 June 2021. On examination, his mood was noted to be depressed and anxious.
Dr Saboor was of the view that the psychological injury started from the knee injury and was secondary to that injury. A diagnosis of major depressive illness with an alcohol use disorder was provided. The prognosis was said to be guarded. Several factors were said to impact recovery and a successful return to work, including ongoing pain, the lack of medication for his psychological problems, and excessive drinking.
Dr Saboor opined that he could work for 4 hours a day, 3 days a week, from a psychological perspective.

Report of Dr Breit

Dr Breit provides a report dated 26 November 2020. This report considers Mr Lonergan’s physical injury. Dr Breit had previously seen the worker in June 2018. Since that assessment, Mr Lonergan had undergone a total knee replacement and a revision total knee replacement. He records that Mr Lonergan “describes the current situation as terrible”.
In terms of present complaints, there was noted to be constant significant pain, and
Mr Lonergan could walk about 500 m before the knee is “thickened and hot”. The prognosis was said to be extremely poor. In terms of his capacity for employment, Dr Breit opined that he could only undertake a sedentary occupation, normal hours, without prolonged standing, walking or negotiating stairs, and no squatting or kneeling. Dr Breit assessed 27% whole person impairment.

Mr Lonergan’s statement

Mr Lonergan provides a statement dated 25 May 2022. He states that since the whole person impairment agreement he has continued to deteriorate, he is in pain every day, and is depressed, anxious and in despair.
He refers to the opinion in the functional capacity assessment and notes that the assessor did not have any updated reports. He notes that the psychological assessment opined that he could work 10 hours per week despite scores for depression and anxiety being in the extremely poor range.
Mr Lonergan sets out his ongoing physical and psychological issues, in comparison with the requirements of the roles identified in the statement, and concludes that he does not believe that he has any work capacity.

Reports of Dr Coolican

Dr Coolican is Mr Lonergan’s treating specialist, although he did not conduct the knee replacement or revision surgeries. He provides a report addressed to Dr Mo dated 11 May 2022.
Dr Coolican conducts an examination of Mr Lonergan noting a restricted range of movement and ongoing medical issues. He advised against revising the right knee replacement. In terms of his functional capacity, he opines that “I doubt very much if her could work for 20 hours per week as a bus driver, concierge or driveway attendant”.
Earlier, in response to correspondence from Woolworths, Dr Coolican provides a report dated 9 April 2021. He opines that it is “unlikely that he will ever be able to work again”, but notes that if he were vocationally trainable, he would be able to perform some form of administrative duties. Dr Coolican supported referral to a functional assessment to “assess Mr Lonergan’s ability to perform administrative work” (this is as opposed to the general functional assessment performed by the respondent).

Report of Dr Calvache-R

Dr Calvache-R provides a report dated 10 May 2022. The doctor provides current symptoms of:
“R) knee pain, stiffnes, restricted flexion, limping with antalgic gait, intermittent swelling, intermittent locking. Lower back disonfort. L) knee pain, restricted movement, clicking, restricted movement. Low mood, irritable, poor concentration, and attention, sleeping difficulties. day time fatigue, overthinking.” [sic]
Dr Calvache-R opines that Mr Lonergan is unfit for work. He considers the vocational assessment report performed by IPAR, and states that he disagrees with the vocational options and the opinion regarding work capacity provided in the report. He states that
Mr Lonergan is psychologically and physically unfit to comply with the inherent requirements of the roles identified, and is at risk of aggravating his injuries.

Report of Carl Nielsen

Mr Neilsen is Mr Lonergan’s treating psychologist and provides a report dated 16 May 2022. He refers to the physical condition of Mr Lonergan as a result of his injury, and notes that as a result of these functional incapacities, he experienced a deterioration in his mental state. Mr Neilsen opines that Mr Lonergan has no work capacity from a psychological perspective, and that he does not agree with the conclusions drawn from the functional capacity assessment.

Email of Rebecca Cartwright

Rebecca Cartwright is an employee of IPAR, who completed the psychological vocational assessment on Mr Lonergan. Ms Cartwright sent an email to the respondent’s legal representatives (Hayley Pepper) on 2 February 2022, noting that during the assessment she conducted a risk assessment on Mr Lonergan.
She reports that “I have a duty of care to report he presented with suicidal ideation”. She noted that Mr Lonergan’s treaters will need to regularly monitor this, and that whilst he did not intend to act on the plan, he had the means, which constitutes more than just a low risk.

Report of Dr Ryan

Dr Ryan provides a medicolegal report dated 12 October 2020 focussing on whole person impairment. He records an extensive history of the circumstances of injury and the treatment from that date. Of relevance to the current dispute is the record of “an average day” for
Mr Lonergan, in which Dr Ryan notes that he has difficulty sleeping because of pain.
Mr Lonergan was able to drive for about 1.5 hours and that he could walk comfortably on a flat surface for about 400 m.
He provides an assessment of whole person impairment of 30%. The major difference between this and that of Dr Breit is that Dr Breit made a deduction of 1/10^th for pre-existing condition.

Report of Dr Bodel

Dr Bodel provides a report dated 14 August 2014. Generally, a report of this age would not be particularly relevant to a dispute about work capacity eight years later. However, the vocational assessment report refers to this opinion and appears to have made some assumptions based on it. This report was provided long before the series of surgeries undertaken that led to Mr Lonergan’s present condition.
Dr Bodel does not provide extensive comment on Mr Lonergan’s capacity, but does note that he has a limited capacity for work and in particular has difficulty with kneeling and squatting. He states that his ability to find work on the open labour market has been compromised by injury.

Submissions

Submissions were provided at the teleconference and recorded. The below is a summary of the parties’ submissions.

Applicant’s submissions

The applicant was represented by counsel who provided submissions at the teleconference. Counsel commenced submissions by referring to the applicant’s statement noting the operations undergone by the applicant and his inability to return to employment, as well as his severe depression and anxiety.
The medical evidence was discussed. It was noted that Dr Ryan’s report mainly commented on whole person impairment. In terms of the report of Dr Breit, reference was made to the prognosis that Mr Lonergan could only undertake sedentary duties, which would preclude the driving jobs that have been suggested and the parking attendant role.
The job description of parking attendant was discussed. The duties recorded would mean that Mr Lonergan would have to walk around and be active, not just sit in a booth and collect money, and there was no indication that the applicant was fit to do those tasks.
The functional assessments were submitted to not be based on medical evidence.
Dr Saboor’s report was referred to. The applicant submits that Dr Saboor states that he has a psychiatric condition that would stop him working. He may be able to work in the future, but not now.
The opinions of the three treating specialists were referred to who all noted that he has no capacity.
The applicant submits that the application to review the work capacity decision be accepted and the respondent ordered to pay the applicant $657 per week pursuant to section 38 of the 1987 Act.

Respondent’s submissions

The respondent’s solicitor provided submissions at the teleconference.
The respondent submits that Dr Saboor’s opinion was not, on their reading, talking about a future capacity. He says that Mr Lonergan could work for 12 hours per week.
The respondent notes that the severity of Mr Lonegan’s injury and his secondary psychological condition is not in dispute – that has remained stable for some time.
The respondent referred to the settlement of the claim for whole person impairment of 27%, and submits that this has no bearing on current capacity. It was based on a “poor” outcome from the knee replacement, and that does not prevent a transfer of skills to a new role.
The respondent relies on the functional and vocational assessment and submits that it took into account Mr Lonergan’s current functional capacity, his physical restrictions, and
Dr Saboor’s opinion, and was based on observations of the report author and the independent medical evidence. The applicant is said to be independent in some of his tasks, and there is no suggestion that the jobs are physically demanding. There is nothing in the tasks performed that would be outside of the applicant’s deemed restrictions provided in the functional capacity assessment.
In terms of the opinions of Mr Lonergan’s treating practitioners, the respondent submits that these opinions do not reflect anything new, his condition has generally remained stable since 2016, and the respondent’s decision was based on the functional capacity assessment.

Applicant in response

The applicant provided a brief submission in response, noting that the opinion of Dr Saboor states that Mr Lonergan “may” have a capacity, and that one could not base a decision on a “may”. In any event, Dr Saboor would only resolve Mr Lonergan’s psychiatric capacity.

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

It is agreed between the parties that Mr Lonergan has a high degree of impairment (27%, per their complying agreement). I accept the respondent’s submission that prima facie, that agreement does not determine capacity. It is largely relevant, in this matter, to Mr Lonergan’s ongoing entitlement to compensation under section 38 of the 1987 Act.

The nature of Mr Lonergan’s incapacity is complicated in this matter as it is multifactorial. It is accepted that he has reduced capacity as a result of both his physical injury and his secondary psychological condition arising as a result of that injury. Both factors must be considered, and in fact both have contributed to the respondent’s decision. In terms of physical capacity, Mr Lonergan has significant restrictions placed on him. In terms of psychological capacity, the respondent’s medical evidence suggests that he cannot work more than 10 or 12 hours per week. Both of these factors together contribute to the determination made.
Unusually there are no certificates of capacity attached to the Application or the Reply. The contextual evidence from other sources makes it clear that Mr Lonergan continues to be certified with no current work capacity. Section 32A of the 1987 Act makes it clear that my consideration of the nature of the incapacity is based on all of the medical evidence, not limited to the certificate of capacity. It is unusual, in these types of matters, to have no functional approval provided by the applicant’s treating general practitioner for the proposed roles.
I would also comment on the functional assessment conducted by the insurer which led to the determination of capacity and the dispute notice. I am reluctant to accept such evidence at face value without the approval of a treating doctor. Further, the evidence contained does not, as pointed out by Dr Calvache-R, test endurance of the injured person. Accepting the respondent’s functional assessment, in particular the assessment of his physical capacity, would involve rejecting all of the opinions of his treating team. Without questioning the qualifications of Ms Quito, the occupational therapist who conducted the physical functional assessment, the competing views in this matter have been provided by doctors, and in particular doctors who have treated Mr Lonergan over many years.
The functional assessment itself draws conclusions based on a series of tests. In my view there is a distinct lack of analysis between the testing results and the conclusion expressed Mr Lonergan could work for 20 hours per week. No explanation was provided as to why the results recorded equalled the assessed functional capacity.
For example, a walking test was performed for the duration of five minutes. The pre and post-pain scores were said to be the same (3 out of 10). It is not clear whether this equates to a functional walking capacity of five minutes, or something greater. The assessed functional capacity was “reduced tolerance”. Other evidence suggests that Mr Lonergan has a walking tolerance of 400-500m, which is not significant.
For standing, a reduced tolerance was demonstrated over the period of a three minute test, with Mr Lonergan seen to shift weight bearing to the left side after approximately two minutes. This functional capacity was recorded to be “reduced tolerance, with postural changes as required”, which suggests Mr Lonergan would be required to change positions every two minutes. I question whether that is reasonable or realistic.
The other competing evidence on which the respondent relies, for the purpose of considering physical capacity, is the report of Dr Breit. He opines that:
“He cannot return to his pre-injury duties and could only undertake a sedentary occupation, normal hours. There may not be any prolonged standing, walking or negotiating stairs, and it must be where he doesn’t have to squat or kneel.”
Dr Calvache-R considered the functional assessment report and disagreed with the vocational options provided. He states:
“It is clear to me from the functional assessment and my current review that Mr Craig is very limited in standing, squatting, climbing, bending activities. It was also mentioned that he tends to overcompensate shifting frequently his body load to his L) leg during his vocational assessment which has added additional pressures to his L) knee injury. He remains psychologically fragile and impaired. It was wrote on the report

‘Mr Lonergan's score for depression and anxiety fell in the Extremely severe range, and his score for stress fell in the severe range’. Which clearly impact his capacity for work.” [sic]
Dr Coolican provides that he doubts “very much if he is fit for any work at this stage despite a vocational assessment suggesting he could work for 20 hours per week”.
Mr Lonergan’s psychological functional capacity was also assessed at the same time. There are a number of salient points that can be made about the findings recorded in that assessment.
Firstly, Mr Lonergan’s scores for depression and anxiety fell into the extremely severe range, and stress in the severe range. These are immediate red flags that make me question his assessed functional capacity of 10 hours per week.
Secondly, Mr Lonergan was reported to have poor short-term memory and that he “may” be able to operate in an environment where tasks are structured and repetitive, with support provided. The reality of such a role existing, as opposed to being academic, with extreme flexibility and constant support, seems remote.
The assessor’s conclusion contains the following:
“While Mr Lonergan presented with low mood, anxiety symptoms, disrupted sleep, low motivation and reduced social interaction and short-term memory ability, it is the opinion of the assessor that Mr Lonergan has the psychological capacity for work, as he demonstrated the ability to organise himself, engage in household tasks, travel independently, make simple decisions, and concentrate and comprehend tasks with no reported issues.”
This conclusion places little weight on Mr Lonergan’s symptomatology due to his psychological injury and significant weight on relative minor tasks required for every-day survival, such as engaging in household tasks and making simple decisions. The opinions do not seem to be concordant at all. The above also ignores the “extremely severe” scores for depression and anxiety.
Finally, I am particularly concerned about the email sent by Ms Cartwright to the insurer following the assessment. Suicidal ideation reported during or following a simple functional assessment appears to be inconsistent with any capacity to work.
Dr Saboor opines that Mr Lonergan could work for 12 hours per week. He states:
“From a psychological perspective he may have some capacity to work, maybe four hours a day, three days a week in very light duties. I am not an expert to determine how much he can work from his physical perspective. It should be clarified from his GP or his orthopaedic surgeon how much he can work from a physical perspective. From a psychological perspective, he could work at least 4 hours a day, 3 days a week.”
There was some debate between the parties about the force of this opinion. The applicant suggested the use of the word “may” meant that the discussed capacity was at some point in the future. The respondent disagreed with that interpretation and said that it was an assessment of 12 hours per week. I agree with the respondent on this point. There is nothing within the words to suggest that Dr Saboor was talking about future capacity. He was asked on fitness/capacity for work, not on the basis of future potential. His opinion is expressed in an unusual and somewhat equivocal way, but it is clear, on the basis of the final sentence above, that he was talking about present capacity.
The opinion of Dr Saboor is contrasted with that of Mr Neilsen, the applicant’s treating psychologist. He opines that Mr Lonergan has no work capacity and does not agree with the conclusions drawn from the functional capacity assessment.

The worker’s age, education, skills and work experience

Little focus was given to this consideration in submissions. The roles identified in the vocational assessment report appear to be within Mr Lonergan’s skills and qualifications, as they do not involve particularly skilled work.
Mr Lonergan has a list of relevant transferrable skills and has worked in a variety of different roles in his career, although those have largely been manual and involve heavy work. The exception to this is the role of bus driver, undertaken for a period of 18 months in 1988, which involved bus driving, interacting with customers, and cash handling. Those skills are obviously particularly relevant to the role of bus driver and less so to concierge driver. I note however that the experience is a long time ago, considering Mr Lonergan’s lengthy career in unrelated roles.
Given the extensive medical issues faced by Mr Lonergan, covered in detail in the discussion relating to incapacity above, this issue has no great relevance to the determination of this matter.

Decision

Mr Lonergan presents as a man with significant ongoing health issues having arisen as a result of his work injury many years ago. It is agreed that these issues affect his physical and psychological capacity for work. The issue in dispute is the extent of Mr Lonergan’s incapacity. The respondent’s section 78 notice opined that he had capacity for 10 hours per week. The applicant asserts that he has no capacity.
I find that I agree with the applicant in this case.
The vocational assessment report (which includes the functional assessment and labour market analysis) has a number of issues that reduce the weight that can be given to it. The conclusions reached regarding Mr Lonergan’s capacity are not consistent, or not appropriately connected, with his assessed functional capacity during the assessment.
I find the applicant’s medical evidence, based on opinions provided by Mr Lonergan’s treating doctors and psychologist, more persuasive than those provided on behalf of the respondent. In each case, the medical experts consider and explain why they disagree with the functional assessment and the opinion regarding capacity contained therein.
The functional assessment appears to have conducted a very superficial analysis of

Mr Lonergan’s capacity and put a significant gloss on his performance in very limited testing. I cannot accept that a capacity to stand for three minutes, shifting weight after two minutes, and a limited walking capacity, is consistent with the requirements of the roles identified. In particular, the duties of a car park attendant require cleaning and inspecting the facilities, requiring significant walking. The role appears to require directing traffic which would suggest extensive periods of standing.
Mr Lonergan has the additional complication of his psychological issues affecting his capacity for work. He has recorded extreme levels of depression and anxiety symptoms. He has difficulties with memory and concentration. Following the examination, the psychologist provided a mandatory report to the insurer that Mr Lonergan reported suicidal ideation. These issues on their own have a significant impact on Mr Lonergan’s capacity for work.
Considering the evidence provided, the submissions of the parties, and the requirements of section 32A, I am of the view that Mr Lonergan has no capacity for work in accordance with section 38 and the definition of suitable employment in section 32A of the 1987 Act.
Accordingly, there will be an award for the applicant of weekly payments.

[2022] NSWPIC 316

22 June 2022