Lyons v A & G Engineering Pty Ltd
[2024] NSWPIC 18
•12 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Lyons v A & G Engineering Pty Ltd [2024] NSWPIC 18 |
| APPLICANT: | Bradley Lyons |
| RESPONDENT: | A & G Engineering Pty Ltd |
MEMBER: | Diana Benk |
| DATE OF DECISION: | 12 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; consideration of section 44B; consideration of ‘current work capacity’ under clause 9 of schedule 3 and ‘suitable employment’ under section; Wollongong Nursing Home Pty Limited v Dewar considered; Held – applicant sustained an injury arising out of or in the course of employment with the respondent; applicant has no current work capacity; award for the applicant pursuant to section 36 & 37. |
| DETERMINATIONS MADE: | The Commission determines: 1. That the applicant had no current work capacity since 12 May 2022 to 27 February 2023. 2. That the pre-injury average weekly earnings figure is $1,276.50 3. That the respondent is to pay weekly compensation to the applicant pursuant to ss 36 and 37 of the Workers Compensation Act 1987 as indexed from 12 May 2022. |
STATEMENT OF REASONS
BACKGROUND
Bradley Lyons (the applicant) sustained injuries to his lumbar spine following a fall at work with A & G Engineering Pty Ltd (the respondent) on 25 November 2015. Liability was accepted on the basis that the applicant was totally unfit for work. Payments appear to have been suspended on 23 December 2015 when the applicant was gaoled.
Following release from gaol on 18 March 2022 the applicant sought treatment and obtained a medical certificate on 12 May 2022 which certified him as having no capacity for work. The applicant then approached the respondent requesting that he be paid weekly compensation.
On 1 June 2022, in response to the claim and following assessment, the respondent denied liability. Internal review was unsuccessful prompting application to the Personal Injury Commission (the Commission) wherein the applicant now seeks an award of weekly payments from 24 December 2015 until 24 December 2020 (referred to as the primary period) based on pre-injury average weekly earnings (PIAWE) of $1,276.50 as adjusted with reference to ss 36, 37 and 38 of the Workers Compensation Act 1987 (the Act). Alternatively, if a finding is made that compensation is not payable whilst in gaol, the applicant claims weekly payments of compensation from 12 May 2022 to 27 February 2023 based on an adjusted PIAWE of $1,463.27 per week and nil capacity for work (referred to as the alternate period).
The matter underwent the usual case management pathway within the Commission. With impasse at conciliation reached, I was requested to determine the matter at arbitration when the applicant was represented by Mr Adhikary instructed by Mr Lehmann and the respondent was represented by Mr Stockley instructed by Mr Michael. Ms Wadick was the insurer representative.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the applicant has entitlement to weekly compensation in either the primary or alternate period.
The law relevant to this application is found in the Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD), and
(b) Reply and attached documents (Reply).
Oral evidence
There was no oral evidence.
Applicant’s evidence
The statement dated 5 September 2023[1] confirms the injury (fall from a ladder approximately 1.5 meters in height, landing on the lumbar region on a concrete surface) (undisputed by the respondent) and incarceration. The statement confirms symptoms continued during his five and a half year prison sentence and no treatment or medical certification was available during incarceration. Whilst in gaol, activity was largely limited to participation in a library program followed by work in a farm program commencing in 2019 where the applicant worked six hour days planting and picking vegetables.
[1] Folio 47 of the ARD.
On release from gaol the applicant records he had fortnightly physiotherapy/hydrotherapy, medical review and medications. He was in receipt of jobseeker benefits until 28 February 2023 when he secured work as a foreman supervising the welding of aluminium trailers which has a ‘hands on component’ of about one hour a day, the balance being management duties.
Medical evidence – pre incarceration
A certificate of capacity was issued by Griffith Base Hospital on 26 November 2015 certifying the applicant unfit for work between 25 November 2015 to 25 January 2016[2] due to fracture of the L2.
[2] Folio 67 of the ARD.
CT scan of the lumbar spine dated 25 November 2015 confirmed a compression fracture of the superior endplate of L2 with approximately 25% loss of anterior vertebral height.[3] It appears that the scan was reviewed by a neurosurgeon in Sydney, Dr Rao (as there were no appropriate specialists at Griffith Base Hospital at the time of presentation who advised) no heavy lifting, pulling or pushing, a standing X-ray and neurosurgeon follow up in six weeks, and “may not be unable to do any work for at least 3/12” with a follow up to a “neuro surg consultant in Sydney in 6/12 for work cover purposes”.
[3] Folio 109 of the ARD.
The applicant was then reviewed by his general practitioner and certified unfit on 27 November 2015 by Dr Win[4] between 25 November 2015 to 23 December 2015 with a diagnosis of “lumbar vertebra 2 fracture”, following “a fall from a ladder while working on a plant”. He was referred to a neurosurgeon at the Griffith Base Hospital.
[4] Folio 64 of the ARD.
Medical evidence post incarceration
On 3 May 2022[5] and 4 May 2022, Dr Truong, general practitioner referred the applicant to Dr Ow Yang and Dr Fairhall (unedited)”
“…back pain- constant dull pain in lumbar region, radiates to bilateral flank, worse when getting up in morning and wakes patient up at night, alleviates with lying down, currently 6/10 currently(sic), worse 10/10 has to stay in bed…. Unable to sit for prolonged period or standing still, difficulty carrying weights, pain causes difficulty concentrating and wakes patient up 3-4 times during the night.”[6]
[5] Folio 62 ARD.
[6] Folio 15 ARD.
Dr K Truong on 12 May 2022 certified the applicant totally unfit for work between 12 May 2022 to 9 June 2022[7] as a result of workplace injury on 25 November 2015 and prescribed medication, physiotherapy and neurologist review.
[7] Folio 20 ARD.
Dr Jacob Fairhall, neurosurgeon reported 10 October 2022.[8] Dr Fairhall found no significant neurological signs with no change in the morphology of the L2 fracture was seen on updated bone scan and MRI. He reports the applicant was proactive in engaging physiotherapy and hydrotherapy noting improvement stating:
“I have no doubt that his longstanding back pain is referable to his work related injury. I would suggest that there is no intervention that should be pursued. He does not need surgery nor CT guided steroid injections. Having said that I would support him having physiotherapy and hydrotherapy for a period of 3-6 months. His core strength needs to be improved in order to optimise his recovery from his remote injury.”
[8] Folio 60 ARD.
Dr Graeme Doig was qualified by the applicant and reported on 16 August 2022.[9] A consistent history is taken in relation to injury and lack of medical attention during incarceration. He reported the applicant was unfit to return to his pre-injury employment as a welder and boilermaker and due to ongoing pain and restrictions in the spine “would have a less than 10kg lifting, pushing and pulling limitation with restricted bending and twisting. He will require breaks from prolonged sitting and driving.” He continued by stating:
“he is fit for alternative duties with the above restrictions in place. If an appropriate position can be identified, he may be able to upgrade to normal hours. In view of his time out of the workforce, restricted hours initially would be beneficial, perhaps 4 hours per day, 3 days per week with alternate days off to recover and upgrading as tolerated”.
[9] Folio 49 ARD.
Respondent’s medical evidence
Dr Miniter was qualified by the respondent and reported on 15 July 2022, stating (unedited):[10]
“It is highly unlikely that the workplace incident is implicit in this man’s current presentation. It is possible that he had the fracture as identified on the CT scan at the time of the injury in 2015 but the effects of this should have passed long ago and I do not agree with the certification provided by his GP. For completeness, he should have an up-to-date MRI scan, but I doubt that it will change matters
I would suggest that his treatment concentrate on physical activities, marked levels of physical strengthening and that he consider returning to his trade. Ostensibly, there should be no reason for him not to return his trade as a boilermaker though he told me that he felt he could not do so.
Of relevance is the fact that he told me that when he was at school, he had great difficulty with reading and writing and whilst arithmetic was satisfactory, he nonetheless had difficulties with dyslexia. His mother supported this. I was therefore interested that he told me that he wished to be retrained and in particular the type of training that he would like to pursue was not entirely clear”.
[10] Folio 3 Reply.
As regards capacity and fitness for work, both past, present and future it was reported:
“In my opinion, he is fit to return to work. He needs to gain levels of physical fitness and manage his discomfort as best he can”.
SUBMISSIONS
Applicant’s submissions
When summarised these were:
i) There is uncontradicted evidence that the applicant remained incapacitated during his incarceration where he was unable to access treatment, medical certification or rehabilitation. Incarceration should not act as Novus Actus. Symptoms remained unchanged and the lack of medical certification should not prevent the applicant from receiving compensation for periods during incarceration (primary claim).
ii) In the alternative, if the primary claim fails, the applicant continued to remain incapacitated following his release and should be compensated from the date of his medical certification on 12 May 2022 until 27 February 2023, the date he obtained employment on a full time basis renumerated at a level higher than PIAWE.
iii) The respondent has not identified any “real jobs” that the applicant may have been suitable for and offered no occupation or rehabilitation services. Work done whilst incarcerated was not real work and there is no evidence by the respondent that any real employer could accommodate the restrictions imposed by injury either in the primary or alternate period.
iv) The respondent acknowledges injury as it entered into a complying agreement and the applicant was awarded a 12% whole person impairment (WPI).
Respondent’s submissions
The respondent submitted:
i) The WPI reflected in the complying agreement does not automatically translate into incapacity. The nature of the fracture automatically placed the applicant into DRE Lumbar Category III and hence the 12% WPI.
ii) Liability for injury had been accepted with benefits suspended as the applicant had failed to provide medical certificates to prompt case management action. Section 44B of the Act prevents payment of weekly compensation in the absence of medical certificates.
iii) Liability was ultimately declined by the respondent in its decision on 1 June 2022 with the decision taking effect from that day.[11]
iv) There is an evidentiary blank in relation to medical capacity during the primary period as the initial medical certification in 2015 forecasted incapacity for a period of up to three months only.
v) There is no evidence to demonstrate that the applicant was unable to undertake the work that he secured on 28 February 2023 on his release from gaol. Dr Doig suggested that the applicant had a capacity which the applicant belatedly exercised and which is greater than his PIAWE.
vi) Given the history of incarceration, the credibility of the applicant must be assessed with the greatest degree of caution.
[11] Section 78 notice folio 7 Reply.
Applicant’s submission in reply
(a) As liability has been declined, s 44B of the Act no longer applies.
(b) There is nothing in the evidence that would suggest that the applicant’s statements have not been credible.
(c) The applicant was only able to return to work due to proactive efforts to increase core strength via physiotherapy, hydrotherapy and by having access to pain medication post incarceration.
FINDINGS and REASONS
Injury
Section 9 of the Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer in accordance with the Act. The term “injury” is relevantly defined in s 4 of the Act; relevantly
“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.”
There is no dispute that the applicant sustained injury and was compensated. Benefits were not paid during incarceration. On release, liability was declined when the insurer accepted the opinion of Dr Miniter who considered that any certified incapacity was not the result of the workplace incident on 25 November 2015.
Overall, I do not find the report of Dr Miniter persuasive. He offers no reasoning as to why he formed this conclusion merely stating that the effects of the injury “should have (my emphasis) passed long ago and I do not agree with the certification provided by his GP”. The finding is not conclusive, as “should have” does not translate into “have or has” and there is no reasoning offered as to why he does not agree with the certification of the general practitioner. There is also no medical reasoning provided why the effects “should have” ceased and there appears to be a disregard of the applicant’s statements of ongoing complaint and somewhat reported fluctuations with current treatment modalities. The lack of reasoning causes me to place little weight on the opinion of Dr Miniter who did, to his credit, suggest that for completeness, the applicant should have an up to date MRI scan.
Overall, I find the respondent’s medical evidence is suboptimal and I further find it was remiss of it to deny liability because symptoms “should have” passed long ago. More is required. A qualified medico opinion, particularly one which is used to make a liability determination, must be backed up by evidence that would rationally and reasonably support the conclusion. This is absent here.
I accept the evidence of the treating general practitioner, neurologist and Dr Doig who acknowledge the significant pathology and the permanent restrictions required as a result of the workplace injury and further accept the certification that the applicant is unfit to return to his pre-injury duties but is fit to return to work within the confines of the current restrictions.
I note that Dr Truong certified the applicant as totally incapacitated between May and June 2022. Dr Fairhall, neurosurgeon in October 2022 did not specifically comment on fitness but did state the applicant would benefit from physiotherapy and hydrotherapy to improve core strength for a period of three to six months to optimise recovery. This forecast is consistent with the applicant’s return to work in February 2023 following such ongoing interventions.
I find that the applicant did sustain injury in the course of his employment. I further find that there is no evidence to suggest anything but employment injury is the cause for ongoing symptoms. I find that the applicant satisfies the definition of injury and that such injury continued.
Capacity
Extent and quantification of incapacity
Section 33 of the Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer shall include a weekly payment during the incapacity.
Section 44B requires the applicant to provide evidence of incapacity and relevantly states:
“44B Evidence as to work capacity
(1) A worker must provide to the insurer--
(a) certificates of capacity in accordance with this section in respect of the period in respect of which the worker is entitled to weekly payments, and
(b) a declaration in the form approved by the Authority as to whether or not the worker is engaged in any form of employment or in self-employment or voluntary work for which he or she receives or is entitled to receive payment in money or otherwise or has been so engaged at any time since last providing a certificate under this section.
(2) If a decision to reject a claim for weekly payments or to terminate weekly payments is set aside, a worker is not required to comply with this section in respect of any period from the date that the decision took effect until the day on which the decision is set aside.”
The respondent submits that the applicant’s claim for weekly benefits during the primary period must fail due to the fact that there is a lack of compliance with s 44B. The applicant maintains that there is no obligation to comply with this section as liability was declined thereby negating the need for certification.
I agree with the respondent on this point. The section states that the applicant (worker) “must” provide certification. The requirement is mandatory not discretionary. Review of the section reveals no provision that would relax the above requirement. This statute is clear on this point.
I acknowledge the applicant’s submissions that this section should not apply as the claim was ultimately declined. This is true, but the claim was not declined during the primary period and so the compliance obligation remained mandatory until denial on 1 June 2022. I further find that a retrospective denial of liability does not negate the mandatory obligations of the section whilst the claim was accepted as such a denial could not have been forecasted. I find the applicant has failed to meet the mandatory requirements of s 44B and so has not met the criteria for benefit entitlement during the primary period which extends for his entire incarceration.
I now will consider the alternate claim between 12 May 2022 to 27 February 2023 noting that the applicant secured employment on 28 February 2023 at a rate greater than his PIAWE.
The respondent maintains the applicant was fit for work and demonstrated such fitness by securing that work and that there is no evidence to suggest his fitness level had changed from the point of incarceration until the time that he secured his employment.
The applicant submits that the medical evidence of both the treating doctor, neurosurgeon and Dr Doig suggests that the applicant did have varying degrees of incapacity preventing real employment and that the respondent has failed to identify what ‘real employment’ was available to the applicant.
For the applicant to be entitled to weekly compensation he must demonstrate during the relevant period that he had “no current work capacity”. The expression, “no current work capacity” is relevantly defined in item 9 of Schedule 3 to the Act as follows:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has 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.”
What requires determination is whether, during the relevant period, the applicant was not able to return to work in “suitable employment”. “Suitable employment” is defined in s 32Aof the Act as:
“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.”
The definition of suitable employment has been exhaustively discussed in Wollongong Nursing Home Pty Ltd v Dewar[12] and also Graden Bathrooms Pty Ltd v Workers Compensation Nominal Insurer.[13] The key points from those decisions is whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work. If there are not, then an injured worker will not have current work capacity. The decisions clearly state that geography, age and availability of work are irrelevant.
[12] [2014] NSWWCCPD 55.
[13] [2020] NSWWCCPD 36.
To determine whether there is suitable employment in the applicant’s case, it is necessary to consider first the nature of the applicant’s incapacity and the medical evidence.
Section 32A directs assessment with reference to certificates of capacity provided under s 44B. There is a medical certificate during the alternate period with Dr Truong certifying total incapacity from 12 May 2022 and 9 June 2022. There are no further certificates as liability was declined on 1 June 2022 and indeed s 44B(2) no longer makes certification a mandatory requirement given such liability status.
The applicant’s evidence is that following incarceration he actively sought out and participated in treatment. Dr Fairhall also suggested that the applicant would ultimately return to work, albeit not in pre-injury duties but that he would benefit from a core strengthening program for a period of three to six months to optimise recovery. The applicant located such employment in February 2023 following such a program.
The respondent maintains that there is no evidence to suggest that the applicant was not fit to undertake work following release from incarceration until the time of his employment in February 2023. This is not the case. The general practitioner, medico-legal evidence and treating neurosurgeon have all certified restrictions varying from total incapacity to permanent restrictions and specifically Dr Fairhall suggested in October 2022 core strengthening for a period of three to six months to optimise recovery, a forecast and prediction ultimately realised when the applicant located employment in February 2023 which he has successfully maintained to date. (I note that Dr Miniter also shared this opinion in his comment on fitness wherein he stated: “He needs to gain levels of physical fitness and manage his discomfort as best he can”.)
On the basis of the global medical evidence, I find the applicant has not been suited to any real form of physical or sedentary that would be commensurate with his age, education, skills and work experience, medical certification and rehabilitation during the alternate period.
Overall, in the circumstances and given the restrictions nominated in the medical evidence, I find that the applicants ongoing disability results in a finding that he has between 12 May 2022 and 27 February 2023 had no current work capacity in either pre-injury or suitable employment no matter how abstract the provisions of s 32A(b) describe potential employment.
SUMMARY
For the reasons above, I find the applicant is entitled to weekly compensation from 12 May 2022 to 27 February 2023. I accordingly make the orders set out on page 1 of the Certificate of Determination.
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