Lyons v Target Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lyons v Target Australia Pty Ltd [2022] NSWPIC 314
APPLICANT:	Melanie Peita Lyons
RESPONDENT:	Target Australia Pty Ltd
MEMBER:	Michael Wright
DATE OF DECISION:	21 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for proposed lumbar fusion surgery and weekly compensation; consideration of medical opinions; Held– proposed surgery reasonably necessary as a result of subject injury; award for applicant pursuant to section 60 of the Workers Compensation Act 1987 and for weekly compensation.
DETERMINATIONS MADE:	1. L5/S1 anterior lumbar interbody fusion, proposed by Dr Coughlan (the proposed surgery), is reasonably necessary as a result of injury to the applicant deemed to have happened on 18 December 2009. 2. The respondent to pay the costs of and related to the proposed surgery in accordance with section 60 of the Workers Compensation Act 1987. 3. Respondent to pay the applicant weekly payments of compensation pursuant to section 38(6) of the Workers Compensation Act 1987: a. from 2 February 2022 to date and continuing at the rate of $686.85 per week, as indexed from time to time.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Ms Melanie Lyons (the applicant) claims for the cost of future medical, hospital and related treatment expenses for an anterior lumber interbody fusion at L5/S1, Dr Coughlan, in respect of injury to her lumbar spine in the course of her employment with Target Australia Pty Ltd (the respondent) deemed to have happened on 18 December 2009.
The workers compensation insurer issued dispute notices pursuant to section 78 dated 2 March 2021 and 21 January 2022. In the section 78 notice dated 2 March 2021, the insurer disputed that the proposed medical treatment was reasonably necessary as a result of injury. In the section 78 notice dated 21 January 2022, which was attached to the Reply, the respondent disputed liability and asserted that the effects of the injury on 18 December 2009 had ceased and the applicant had recovered from the injury sustained to the lumbar spine with a deemed date of 18 December 2009. The respondent disputed that the applicant was entitled to payments of weekly compensation and also that the proposed surgery was not reasonably necessary as a result of the injury in 2009, which had not materially contributed to the need for surgery and that the proposed procedure was unlikely to be of sustained benefit without pain clinic assessment and intervention.
At the teleconference in this matter, leave was given to the applicant to amend the application to claim weekly compensation from 2 February 2022 and continuing. Leave was also granted to the respondent to rely upon the dispute notified in the section 78 notice dated 21 January 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

At the conciliation/arbitration hearing of this matter on 31 March 2022, the applicant was represented by Mr Carney of counsel, instructed by Mr Hopper, solicitor, and the respondent by Mr Hunt, instructed by Mr Biscovic, solicitor.
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.
At the conclusion of the conciliation/arbitration, the parties were directed to provide written submissions to the relevance and applicability of the Medical Assessment Certificate dated 20 December 2017 (see below) in respect of section 39 of the Workers Compensation Act 1987 (1987 Act). The respondent did not provide written submissions and the applicant did so provide written submissions.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents,
(b)    Reply and attached documents,
(c)    Applications to Admit Late Documents dated 23 February 2022 and 8 March 2022 and attached documents, and
(d)    applicant’s written submissions dated 21 April 2022.

Oral evidence

There was no oral evidence in this matter.

FINDINGS AND REASONS

Applicant’s statement

The applicant provided a statement date 22 December 2021. She recounted the injury sustained to her lower back in the course of her employment with the respondent. She was 29-years-old when she sustained the injury to her lower back with a deemed date of injury on 18 December 2009. She did not recall suffering from any lower back pain or restrictions prior to her employment with the respondent. The applicant said that she was employed by the respondent as a store assistant working 36 hours per week prior to her injury. She stated that her employment involved the performance of repetitive and strenuous tasks for prolonged periods of time. She detailed these tasks in her statement.
In April 2010, after reviewing a CT scan of the lower back, her general practitioner (GP) Dr Massie referred the applicant to Dr M Coughlan, neurosurgeon for treatment. She first consulted Dr Coughlan in about April 2010. The applicant underwent a microdiscectomy with insertion of a spacer, performed by Dr Coughlan on 6 August 2010. The applicant thereafter engaged in conservative treatment including physiotherapy but continued to suffer lower back pain, which has continued to the time of her statement.
She underwent bariatric surgery on or about 14 November 2019, which was successful in maintaining a suitable weight for lower back surgery. The applicant consulted with Dr Coughlan again about October 2020, who arranged for an MRI. On 2 June 2021, following the MRI of 1 May 2021, Dr Coughlan recommended lower back fusion surgery, to which the applicant agreed. She continues to experience severe lower back pain and restrictions. She listed her restrictions and disabilities.

Medical Assessment Certificate 5789/17 dated 20 December 2017

Attached to the application was a Medical Assessment Certificate of Approved Medical Specialist (AMS) Dr Anderson in matter numbered 5789/17 dated 20 December 2017 (MAC). The injury was to the lumbar spine and the date of injury was 18 December 2009. Dr Anderson examined the applicant on 14 December 2017.
The matter referred for assessment was recorded as “whether the degree of permanent impairment of the injured worker is fully ascertainable in accordance with s 319 (g) of the 1998 Act”.
The AMS noted documentation including a recommendation by D M Coughlan, neurosurgeon, dated 22 June 2017, for revision of the previous lower lumbar surgical procedure. Also noted was a recommendation by Dr P Bentivoglio, neurosurgeon, dated 17 July 2017, to reduce weight before further surgery, and that her condition is not due to her job and that further surgery would not improve her condition.
Dr Anderson noted lumbo-sacral investigations dated 18.3.10 (CT), 1.5.12 (MRI), 15.6.15 (plain X-ray and MRI) and 7.6.17 (CT).
Dr Anderson noted some short term improvement in lower back pain following surgery in August 2010 “although this was short lived and within a few weeks, her condition was the same as it had previously been.”
Dr Anderson opined:
“Mrs Lyons has extensive deterioration of her lower lumbar spine. There seems little prospect of significant improvement with continuing conservative management. Recommendations for revision of the previous surgical procedure have been made and further recommendations that there should be substantial weight loss before this is considered further. This would seem very reasonable. Therefore, at this stage, it is not possible to fully ascertain the degree of permanent impairment.”

Dr Coughlan

Dr Coughlan, neurosurgeon, provided a report dated 2 June 2021. He noted injury to the applicant’s lower back in 2009, and subsequent to this injury “she has developed severe chronic lower back pain that has progressively worsened”.
The injury resulted in a disc injury at L5/S1. He recorded that she “underwent a foramina laminotomy at L5/S1 and insertion of an interspinous spacer device on the 13th of August 2010”. He stated that “unfortunately I think her discopathy at LS/SI has progressed and the interspinous spacer device posteriorly is not sufficient enough to distract this” and her “worsening back pain is affecting her functionality and quality of life”.
As to causation, that her “reported symptoms are closely correlated with her imaging”. He opined that “considering the immediate onset of pain following the subject injury, and Melanie was asymptomatic prior to the injury, I believe her employment was the main contributing factor to the injury, her subsequent incapacity and the need for treatment.”
Dr Coughlan disagreed with the opinion of Dr Bentivoglio. Dr Coughlan stated:
“Imaging in 2010 following Melanie's injury showed a calcified disc protrusion at L5/S1 with moderate lateral recess narrowing. As per Q2 we elected to put in an interspinous spacer device to try and stave off having to have a fusion for many years. In 2017 the updated CT scan showed a very collapsed calcified segment at L5/S1 with almost bone-on- bone. She had some degree of recurrent foraminal stenosis at L5/S1 due to a large osteochondral bar eccentrically worse on the right hand side causing compression of the exiting nerve roots. She also had some degree of foraminal stenosis within the foramen and this is mostly due to collapse at L5/S1 Melanie 's pain has worsened and her latest CT scan does show significant bilateral foraminal stenosis affecting L5/S1 and bone-on-bone at that segment. Unfortunately, I think her discopathy at LS/S1 has progressed and the interspinous spacer device posteriorly is not sufficient enough to distract this. Hence the recommendation for au L5/S1 ALIF.”
As to capacity that her incapacity is a consequence of the subject injury. He stated the applicant was unable to work in her usual role due to pain and limited functionality and her future work prospects
“appear bleak if her current pathology is not addressed”.
He was of the opinion that
“it is unlikely that Melanie will ever engage in gainful employment on a sustainable basis in any occupation for which she is reasonably qualified by education, training or experience given her injury and ongoing symptoms”.

Dr Assem

Dr Assem, rehabilitation specialist, provided a report dated 3 November 2021.
Dr Assem noted the 2010 surgery, remaining off work since December 2014, and progressive worsening of low back symptoms. He noted the lumbar spine imaging/investigations, of 18.3.10 (CT), 27.5.10 (lumbar myelogram/CT), 1.5.12 and 15.6.15 (multipositional), 7.6.17 (CT), and 12.11.20 (bone scan).
He diagnosed:
“Ms Lyons has chronic mechanical low back pain with right L5 radiculopathy that limits her ability to sit for more than 20 minutes, stand for more than five minutes and walk for more than 30 minutes. She is unable to drive short distances. She has difficulty bending or lifting items weighing more than 5kg. She is now experiencing a shooting pain in her right leg, causing her right leg to give way. She is relying on her husband and children for assistance with most of her activities of daily living.”
He opined:
“Ms Lyons was asymptomatic and working with Target for seven years before she developed low back pain. Her condition is due to the nature and conditions of her employment as it involved repetitive heavy lifting and pushing caged weighing up to 200kg. Although Dr Bentivoglio considered that her problem is now predominantly degenerative, she was only 29 years of age at the time of the injury. Dr Bentivoglio acknowledged the presence of right L5 radiculopathy. Unfortunately, her condition has continued to worsen, preventing her from working or performing any meaningful activities at home. She is also continuing to rely on narcotic analgesia for symptomatic relief.”
Dr Assem stated that “I do not believe that there are any realistic vocational options that she is capable of performing in a regular and reliable manner. Without surgery, she will continue to be totally and permanently incapacitated.”
He was of the opinion that
“She now satisfies the criteria for a lumbar fusion as she continues to experience unrelenting pain with progressive neurological deficit. She has right L5 radiculopathy as noted by the presence of muscle atrophy, weakness and sensory loss in the L5 nerve root distribution. Over the past month or so, she has developed a shooting pain in her right leg that will last a couple of seconds, causing her right leg to give way. She now has almost total collapse at the L5/S1 level with foraminal stenosis that will not respond to ongoing conservative management.
I believe that the proposed L5/S1 anterior lumbar interbody fusion is reasonably necessary in this matter. If the operation is successful, there will be improvement in her symptoms, functional capabilities and reduced reliance on narcotic analgesia or health resources for ongoing passive treatment modalities.”

Dr Bentivoglio

Dr Bentivoglio, neurosurgeon, provided reports dated 17 June 2017, 9 February 2021, 21 September 2021, 1 December 2021 and 15 December 2021.
In his report of 17 June 2017, Dr Bentivoglio noted documentation including report (unspecified) of Dr Coughlan, and scans of 7.6.17 (CT) and 2.6.17 (bone scan). He noted a history of no back pain prior to the gradual onset of low back pain and microdiscectomy performed by Dr Coughlan with some benefit for four weeks and return of worse low back pain. He noted further consultation with Dr Coughlan on 7 June 2016, with Dr Coughlan recommending re-decompression at L5/S1. He diagnosed “disc degeneration at the LS and S1 levels with right lateral recess compression of the S1 nerve root and moderate L5/S1 foraminal narrowing with LS nerve root impingement”.
Dr Bentivoglio said “there was no actual injury” and “these symptoms came on slowly, consistent with someone who had degenerative disc disease in their spine,” that was “quite consistent with someone who has developed degenerative disease in their lumbar spine of a progressive nature”.
Dr Bentivoglio took no history of injury at work or of onset of symptoms while performing her duties for the respondent. He stated:
“I do not believe that her employment with Target Australis is the sole substantial contributing factor to her current diagnosis. As I have said there has been no history of an injury at Target. The work that she does is not that physically demanding, the work that she has done is not that physically demanding.”
In his report of 9 February 2021, Dr Bentivoglio noted significant weight reduction with the aid of bariatric surgery done in November 2019. He noted the persistence of low back pain since 2017. He also noted the recommendation by Dr Coughlan in late 2020 for an L5/S1 anterior fusion. He believed that her problem now is predominantly degenerative in nature and the work had exacerbated this degenerative disease but was not the cause of the progressive ongoing deterioration. He believed that the degenerative disease aggravation as a consequence of work had ceased and that her ongoing problems are related to the progression of the degenerative disease related to her obesity which has put significant stress and strain on the lower part of her back. Dr Bentivoglio felt that the applicant could probably do light duties starting at 12 hours per week and building it up from there and probably not working more than 20 hours per week. He was of the opinion that trial of pain clinic treatment would be worthwhile but that surgery proposed by Dr Corgan, an L5/S1 fusion, “may become necessary” although there was no specific urgency in the absence of evidence of neurological dysfunction. The treatment proposed by Dr Corgan was for the pre-existing and progressive degenerative disease in the lumbar spine and there was pre-existing disc degeneration at L5/S1 before 2010.
In his report of 21 September 2021, Dr Bentivoglio noted the original injury occurred on 8 December 2009 related to the nature of the applicant’s work at a period of time when it was very busy and she had to do a lot of repetitive bending and lifting and as a consequence developed low back pain and right leg pain. His diagnosis and opinion remained unchanged. However, in assessing permanent impairment he stated:
“This whole person impairment is related to the diagnosis and the injuries sustained in 2009, the history of the injury of chronic repetitive bending and lifting. The injuries arising out of the work were to her lumbar spine. There are no other previous injuries which have contributed to her back problem.
I do not believe she suffers from a pre-existing back problem as she was only 28 when she had this disc injury. A 28-year-old should have normal discs. So, I would not be making any deductions for any assessment for whole person impairment even though she does appear to have disc degeneration at L4/5 and L5/S1, which probably has arisen out of the nature of the work injury in 2009.”
In his report of 1 December 2021, Dr Bentivoglio reviewed the reports of Dr Assem and Dr Coughlan (undated). Dr Bentivoglio stated that he believed that operative intervention is appropriate. He stated that:
“Dr Coughlan is recommending surgery at the L5/S1 level, which exposes the disc changes at the L4/5 level to develop adjacent segment disease.
I do agree that Ms Lyons does need to have the fusion at the L5/S1 level, but also I believe that due consideration should be given to the L4/5 level as well.
Also, the occupational physician and rehabilitation specialist, Dr Assem, agrees with this, but he also did not address the problem at the L4/5 level.
I do believe Dr Coughlan should consider treatment of the disc injury and disc degeneration at the L4/5 level, as well as the fusion at the L5/S1 level, and may consider a hybrid procedure of an L5/S1 fusion and an L4/5 disc arthroplasty to prevent adjacent segment disease or minimise adjacent segment disease at the L4/5 level, to decrease the necessity for further surgery at the L4/5 level in the future.”
In his report of 15 December 2021, Dr Bentivoglio, in response to a question relating to the diagnosis provided in the report of 9 February 2021, stated the following:
“I have clearly stated in my report, in the section on prognosis on page 7:
At this stage, I do consider the work injury has ceased and the progression is related to the progression of the degenerative disease because she has stopped working since 2014.
I cannot blame her work as to the cause of the progression of the degenerative disease.
I do blame the degenerative disease itself, and that is why she is requiring operative intervention.”
In response to a question relating to his opinion in the report of 1 December 2021 as to the operative intervention at L5/S1 and also at L4/5, and whether the operative intervention is required due to the pre-existing degenerative disease or the work-related exacerbation/aggravation of same, Dr Bentivoglio stated:
“I do believe, as I have stated before that the reason for the operative intervention at L5/S1 and L4/5 is related to the pre-existing degenerative disease and not related to the work injury when she had an injury in December 2009 which was related to the nature of her work, which entailed some repetitive bending and lifting. There is no actual injury report.
I do believe the reason for operative intervention is because of the degenerative disease in her lumbar spine and not related to the work injury in 2009.”

Dr Kafataris

Dr Kafataris provided reports dated 2 October 2019 and 5 June 2020. Dr Kafataris is an injury management consultant.
In his report dated 2 October 2019, he was of the opinion in relation to capacity for work that the applicant is fit for suitable duties of at least 20 hours per week with a lifting restriction of 5kg and working at waist height and above and changing position every 30 minutes to avoid static sitting.

In his report dated 5 June 2020, Dr Kafataris noted that it was unclear whether proposed surgery would proceed and for the purposes of his opinion he assumed that the surgery will not proceed for the time being. He was of the opinion that the worker’s condition was stable and she was fit for suitable duties of at least 20 hours per week with restrictions similar to those previously.

Decision

Injury to the applicant’s lower back on 18 December 2009 (deemed) was not in dispute.
Dr Bentivoglio has provided opinions, particularly in his latter two reports, which are at best confusing and not adequately explained. He did not explain how the diagnosed aggravation of the pre-existing condition had ceased when the applicant’s evidence was that her pain and restrictions had continued since 18 December 2009 and had gradually become worse. This was confirmed by numerous and regular clinical entries of Dr Massie over the years. I accept the applicant’s submissions in this regard.
Dr Bentivoglio also did not explain how it was that although he diagnosed a ceased aggravation of a pre-existing condition, in assessing permanent impairment he also noted that the applicant was 28-years-old at the time of her injury and her lumbar discs should have been normal, and therefore there was no deduction for pre-existing condition in respect of permanent impairment as a result of the injury on 18 December 2009. The effort to distinguish between an assessment of permanent impairment as a result of injury on 18 December 2009 and the cessation of an aggravation of a pre-existing condition was not persuasive.
Moreover, Dr Bentivoglio did not explain the change from his opinion of a ceased aggravation of a pre-existing degenerative condition in his reports of 2017 and February 2021 to his assessment of permanent impairment as a result of injury on 18 December 2009 in his report of September 2021.
Further, Dr Bentivoglio did not explain, in light of his opinion as to permanent impairment, how it was that the proposed surgery was related to the pre-existing degenerative condition rather than the disc injury that he was of the opinion had resulted in permanent impairment as a result of injury on 18 December 2009. In my view, it was not sufficient to assert, without adequate explanation, that the need for treatment, that is the proposed surgery, was a result of the acceleration of the pre-existing condition, rather than the disc injury on 18 December 2009 that he diagnosed in his permanent payment assessment.
Dr Kafataris provided an opinion in his 2019 and 2020 reports as to capacity for work which was based upon an incorrect assumption, that is that further surgery was not warranted based upon the opinion of Dr Bentivoglio. Given the weight of opinion of Dr Coughlan and Dr Assem in terms of having relevant medical specialties, as well as Dr Coughlan being the applicant’s treating neurosurgeon over a period of a number of years, I do not prefer the opinion of Dr Kafataris.
I prefer the opinions of Dr Coughlan and Dr Assem. Both provide a persuasive explanation of their opinions. Both are based upon a fair climate of the applicant’s statement and the supporting clinical records of Dr Massie. In disagreeing with Dr Bentivoglio, Dr Coughlan provided a persuasive explanation of the change in the L5/S1 pathology since the injury in December 2009. Dr Assem also discussed the pathology and noted that the applicant was asymptomatic and working with the respondent for seven years before she developed the low back pain when she was only 29 years of age at the time of the injury, matters which in my view were not adequately explained by Dr Bentivoglio.
I find that the applicant has continued to suffer pain and restrictions in her lower back as a result of the injury on 18 December 2009. This conclusion is supported in my view by the opinions of Dr Coughlan and Dr Assem, the statement of the applicant and the clinical notes of Dr Massie.
In relation to the surgery proposed by Dr Coughlan, that is the L5/S1 anterior lumbar interbody fusion, both Dr Assem and Dr Coughlan support the proposed surgery as being reasonably necessary as a result of the injury of 18 December 2009. Dr Bentivoglio agreed that the proposed surgery was indicated, and indeed that consideration should be given to fusion at another level, L4/5. Fusion at another disc level at L4/5 is not the claim before me in these proceedings. As there were no submissions, and in the absence of a dispute notified in the section 78 notice, as distinct from a dispute as to causation, it seems to me that there was no dispute in relation to matters referred to in Rose v Health Commission (NSW[1]) and Diab v NRMA Ltd[2].
[1] (1986) 2 NSWCCR 32.
[2] [2014] NSWWCCPD 72.
I find that the surgery proposed by Dr Coughlan, that is the L5/S1 anterior lumbar interbody fusion, is reasonably necessary as a result of injury to the applicant deemed to have happened on 18 December 2009.
In relation to the claim for weekly compensation, the respondent conceded that the applicant had been in receipt of weekly compensation payments since 2014 for a period of 573 weeks.
However, the applicant sustained injury to her lower back which was deemed to have happened on 18 December 2009. The issue is whether she was an existing recipient of weekly payments, that is whether she was in receipt of weekly payments of compensation immediately before the commencement of the 2012 weekly payments amendments on 1 October 2012, for the purpose of clauses 28B and 28C of Schedule 8 of the Workers Compensation Regulation 2016 (the 2016 Regulation). If not, the five year limit on payments of weekly compensation apply to the applicant pursuant to section 39 of the 1987 Act, as she has not been assessed with a degree of permanent impairment of greater than 20%.
The applicant stated that in or around December 2011 she required six months off work in order to recuperate before she returned again to light administrative duties. She stated that between December 2011 and May 2013 she continued to self manage her lower back injury while she eventually returned to work performing light administrative duties.
The clinical notes of Dr Massie indicate that there was incapacity for work at the relevant time. In particular, the note of 29 August 2012 in respect of lumbar disc decompression noted that return to work was discussed and “we will try a RTW 1X 4 hours” for six weeks. The note of 21 September 2012 noted a case conference “with Nigel from Keystone” and problems taking prescription medication, being Tramadol. The clinical note of 8 October 2012 noted a history of “managing 4 hours but unable to increase hours or days” and also noted a case conference with a “rehab person”.
In a report to the respondent’s insurer dated 23 May 2012, Dr Coughlan noted that more than six months had elapsed since surgery and he thought that the applicant would be able to return to some form of suitable duties. He was of the opinion that the applicant would be able to achieve her preinjury hours of 36 per week, although not all of her pre-injury duties, over the course of the next few months but this would depend on symptom regression.
There is a strong suggestion from this evidence that the applicant had an incapacity for work as a result of the subject injury, that she was able to work only four hours per week immediately before 1 October 2012, and that Dr Massie participated in case conferences with rehabilitation representatives in September and October 2012. Prior to her injury the applicant worked 36 hours per week. There was no suggestion from the respondent that it had disputed entitlements to weekly compensation at any time prior to the section 78 notice of 21 January 2022. This is reinforced by the respondent’s concession that since 2014 it had paid a total of 573 weeks of weekly compensation to the applicant. The applicant in my view was an injured worker who was in receipt of weekly payments of compensation immediately before 1 October 2012 in respect of the injury of 18 December 2009.
In my view, the applicant was an existing recipient of weekly compensation for the purpose of clause 28C of the 2016 Regulation.
Therefore, the MAC of Dr Anderson is significant, and in my view decisive. That is, AMS Dr Anderson in the MAC declined to make an assessment of the degree of permanent impairment on the basis that the degree of permanent impairment is not fully ascertainable. Implicit in the MAC is the proposition that maximum medical improvement has not been reached on the basis that Dr Anderson was of the opinion that there was little prospect of significant improvement with continuing conservative management and, if further surgery is undertaken after weight reduction, it would be reasonable that a further year should elapse before assessment of her condition. This in my view satisfies clause 28C(a).
It does not matter whether the MAC of Dr Anderson can be regarded as being conclusively presumed to be correct in these proceedings. His MAC was issued in previous proceedings in respect of the same injury. There is some doubt on the authorities as to whether in these circumstances the MAC can be conclusively presumed to be correct in these proceedings. In any event, clause 28C does not require that the MAC be conclusively presumed to be correct, nor that it be obtained in the same proceedings.
Clause 28C also requires that the worker’s injury has resulted in permanent impairment. Regardless of the weight to be given to the assessment of Dr Bentivoglio, he provided an assessment that the applicant sustained permanent impairment as a result of the injury of 18 December 2009. Dr Assem also provided an assessment that the applicant’s injury on 18 December 2009 resulted in permanent impairment.
As noted above, I have preferred the opinions of Dr Coughlan and Dr Assem. The former was of the view that the applicant’s work capacity prospects are bleak without the proposed surgery. The latter did not believe that there are any realistic vocational options that the applicant is capable of performing and without surgery she will continue to be totally and permanently incapacitated. These opinions lead to the conclusion that the applicant is unable to perform her preinjury employment and is not currently able to perform suitable duties within the meaning of section 32A.
Preinjury average weekly earnings (PIAWE) were agreed at $858.56. PIAWE must be indexed from time to time. The relevant rate is pursuant to section 38 of the 1987 Act. By my calculation the weekly payment is 80% of currently $858.56, being $686.85, as indexed from time to time, from 2 February 2022 and continuing.

[2022] NSWPIC 314

21 June 2022