Mazzocchi v Unitrans Asia Pacific Pty Ltd
[2022] NSWPIC 186
•28 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Mazzocchi v Unitrans Asia Pacific Pty Ltd [2022] NSWPIC 186 |
| APPLICANT: | David Carlos Alejandro Mazzocchi |
| RESPONDENT: | Unitrans Asia Pacific Pty Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 28 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly payments of compensation and lump sum payment for injury to the lumbar spine, right hip, and both knees, as well as psychological injury due to bullying in the workplace; respondent concedes injury to the lumbar spine but disputes all other injuries; claim for right hip made pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act); reference to AV v AW; claim for right knee condition made in the alternative as a consequential condition; reference to Attorney General’s Department v K in regard to claim for psychological injury; respondent disputes that the Commission has jurisdiction to award weekly compensation pursuant to section 38 of the 1987 Act in the circumstances of this dispute; reference to several decisions of Members of the Commission on this issue; Held– worker sustained disease injury to his right hip as provided for by section 4(b)(ii) of the 1987 Act; award for the respondent for the claims of injury to both knees; worker sustained consequential condition affecting his right knee as a result of injury to the right hip; worker sustained a psychological injury in the course of his employment; Commission has jurisdiction to make an award of weekly payments pursuant to section 38 of the 1987 Act in the circumstances of this dispute; award of weekly payments and referral to Medical Assessor/s for assessment of permanent impairment for both physical and psychological injuries. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury to his right hip and lumbar spine in the course of his employment with the respondent, pursuant to section 4 (b)(ii) of the Workers Compensation Act 1987, with a deemed date of injury of 22 February 2018. 2. The applicant did not sustain an injury to his right knee or left knee in the course of his employment with the respondent. 3. The applicant sustained a consequential condition affecting his right knee as a result of the injury to his right hip. 4. The applicant sustained a psychological injury in the course of his employment with the respondent, pursuant to section 4 (b)(i) of the Workers Compensation Act 1987, with a deemed date of injury of 22 February 2018. 5. The applicant had no current work capacity from 22 February 2018 to 28 February 2021. 6. The applicant has had a partial incapacity for work since 1 March 2021. 7. The Personal Injury Commission has jurisdiction to award weekly payments of compensation pursuant to section 38 of the Workers Compensation Act 1987. |
| ORDERS MADE: | 1. The respondent is to pay the applicant weekly payments of compensation as follows: (a) $992.75 per week from 22 February 2018 to 24 May 2018, pursuant to section 36 (1) of the 1987 Act; (b) $836 per week from 25 May 2018 to 20 August 2020 pursuant to section 37 (1) of the 1987 Act; (c) $836 per week from 21 August 2020 to 28 February 2021, pursuant to section 38 (6) of the 1987 Act; (d) $182.90 per week from 1 March 2021 to 30 June 2021, pursuant to section 38 (7) of the 1987 Act, and (e) $166.55 per week from 1 July 2021 to date and continuing, pursuant to section 38 (7) of the 1987 Act. 2. Liberty to apply by the parties to adjust the award of weekly payments of compensation if there is an agreement on increases to the applicant’s pre-injury average weekly earnings as provided for by section 82A of the Workers Compensation Act 1987. 3. An award for the respondent for the claims of injury to the right knee and left knee. 4. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury: 22 February 2018 Body Parts: Lumbar spine Right lower extremity (hip) Right lower extremity (knee – consequential condition) Scarring (TEMSKI) Method of Assessment: Whole Person Impairment Date of injury: 22 February 2018 Body Part: Psychological injury Method of Assessment: Whole Person Impairment 5. The following documents are to be forwarded to the Medical Assessor: (a) the Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents filed by the respondent on 24 February 2022, and (d) a copy of this decision. |
STATEMENT OF REASONS
BACKGROUND
The applicant, David Carlos Alejandro Mazzocchi, commenced employment with the respondent, Unitrans Asia Pacific Pty Ltd, as a warehouse store person in December 2009.
The applicant claims that he sustained injury to his lumbar spine, right hip, and both knees in the course of his employment with the respondent with a deemed date of injury of 22 February 2018. The applicant claims that his work with the respondent involved frequent heavy lifting of items weighing more than 25 kg, repetitive kneeling and squatting, and repetitive bending and twisting of the lower back.
The applicant ceased work on 22 February 2018 due to symptoms affecting his right hip, lumbar spine and both knees, and submitted a claim for workers compensation benefits.
The applicant also claims that he sustained a psychological injury in the course of his employment with the respondent as a result of bullying and harassment by co-workers in the workplace.
Allianz Australia Workers Compensation (NSW) Ltd (Allianz) issued a dispute notice on behalf of the respondent on 17 April 2019 wherein liability was disputed for both the physical and psychological injuries claimed to have been sustained by the applicant in the course of his employment with the respondent.
Allianz also disputed that the applicant was entitled to weekly payments of compensation because he did not have any partial or total incapacity as a result of any injury sustained in the course of his employment with the respondent.
The applicant underwent a right total hip replacement on 25 November 2020 at the hands of Dr Prodger.
The Application to Resolve a Dispute (ARD) filed on behalf of the applicant claims weekly payments of compensation from 22 February 2022 onwards. The applicant also makes the following claims for a lump sum payment pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act):
(a) 28% whole person impairment for injury to the lumbar spine, right lower extremity and left lower extremity as a result of injury sustained on 22 February 2018, and
(b) 17% whole person impairment as a result of psychological injury sustained on 22 February 2018.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to his right hip and right and/or left knee in the course of his employment with the respondent (section 4 of the 1987 Act);
(b) whether the applicant’s employment was the main contributing factor to the contraction of a disease injury in the course of his employment with the respondent (section 4 (b)(i) of the 1987 Act) and/or the aggravation, acceleration, exacerbation or deterioration of a disease injury in the course of his employment with the respondent (section 4 (b)(ii) of the 1987 Act);
(c) whether the applicant sustained a psychological injury in the course of his employment with the respondent (sections 4 and 11A (3) of the 1987 Act);
(d) the extent of the applicant’s incapacity for employment (sections 32A, 33, 36, 37, and 38 of the 1987 Act);
(e) whether there is jurisdiction to make an award of weekly payments of compensation after the applicant has received 130 weeks of such compensation (section 38 of the 1987 Act), and
(f) the body parts to be referred for assessment by a Medical Assessor.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 3 March 2022. 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.
Mr Trainor appeared for the applicant, instructed by Ms Ziayee. Mr Necovski appeared for the respondent, instructed by Mr Griffin.
The hearing was conducted by telephone in accordance with the protocols set by the Personal Injury Commission (the Commission) as a result of the coronavirus pandemic.
The hearing was commenced but not completed on 3 March 2022 and a timetable was set for the filing of written submissions by both parties.
The applicant claimed in a Wages Schedule that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,272.50. That was amended in the applicant’s written submissions to $1,045, and was agreed to by the respondent.
The respondent in its written submissions confirmed that it disputes the claim of an injury to the lumbar spine. However, the submissions did not address an injury to the lumbar spine and there was a concession that only the lumbar spine injury should be referred to medical assessment (notwithstanding that the whole person impairment of the lumbar spine has been assessed at no more than 7%). I have therefore proceeded on the basis that the injury to the lumbar spine is no longer in dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) Reply and attached documents;
(c) wages schedule filed by the applicant on 17 February 2022;
(d) Application to Admit Late Documents filed by the respondent on 24 February 2022;
(e) written submissions filed by the applicant on 28 March 2022;
(f) written submissions filed by the respondent on 7 April 2022, and
(g) written submissions in reply filed by the applicant on 14 April 2022.
Oral evidence
There was no application to adduce oral evidence or to cross examine the applicant or any other witnesses.
Whether the applicant sustained an injury to his right hip, right knee and/or left knee in the course of his employment with the respondent
The applicant’s evidence
The applicant has provided a handwritten statement which is undated but appears to be attached to a claim form dated 27 February 2018, as well as a statement dated 29 October 2021.
The applicant states that he began to experience pain, stiffness and discomfort affecting his right hip and lumbar spine region in around 2011. He states that he gradually started experiencing pain, stiffness and discomfort in both knees. He states that he suffered from these symptoms because of the heavy manual and repetitive work in his job as a warehouse storeperson.
The applicant states that his job involved lifting and manoeuvring heavy items such as furniture items on a repetitive basis. He states that his job involved prolonged standing, prolonged walking, frequent lifting of heavy items of more than 25 kg, and bending and twisting of the lower back. The applicant’s claim form states he was picking up sofas weighing 100 to 140 kg by himself.
The applicant states that he was given a certificate by Dr Awais which placed restricted duties in the workplace, but he states that the respondent ignored the restrictions and gave him jobs that were contrary to those restrictions. However, the applicant also states that for a time he was given a position that was suited to his injuries, and which allowed him to work full time with little risk of injury.
The applicant states that the symptoms in his right hip, lower back, and both knees gradually worsened from 2015 onwards. He states that by February 2018 he could no longer cope with the demands of his job due to severe pain in his lumbar spine and right hip region, which he states was due to continuously lifting and bending. He states that he had been taking analgesic and anti-inflammatory medication for the previous two years.
The applicant states that he underwent a total right hip replacement on 25 November 2020. He states that after completing physiotherapy treatment in mid-February 2021 his right knee gave way and he sustained an undisplaced fracture affecting the medial tibial plateau.
Other lay evidence
Miguel Guzman has provided statements dated 12 February 2018 and 19 June 2018. He states that he has been employed by the respondent for the past 18 years and has been incoming warehouse manager for the past seven years. He states that he has been the direct manager of the applicant since the applicant commenced employment with the respondent.
Mr Guzman states that the applicant has always been able to perform his work duties and the applicant never complained about his duties. He states that ever since he met the applicant, the applicant has always had an issue with his hip, and it was obvious that the applicant walked with a limp. He states that the work environment was fairly laid back with no employees being pushed to work harder or faster.
Mr Guzman states that he does not believe that the applicant was ever subject to light duties, and that would not have occurred because the applicant never reported issues at work with his right hip.
Mr Guzman states that the applicant had many roles in the warehouse and that there would be some heavy and repetitive work undertaken by the applicant. He states that work in the returns department is less physically demanding than elsewhere.
Mr Guzman states that an average working day could see about 10 to 15 items returned to the returns area, of which half would be exchanges, which the applicant had nothing to do with, and the other half would be returns. The task for returns which was undertaken by the applicant involved the manual task of manoeuvring those items on and off an order picker.
Mr Guzman states that more recently the applicant worked on the turret, which is a suitable job for anyone with an injury or was in pain.
Mr Guzman states that he had discussions with Daniela Carbone about finding suitable duties once the applicant indicated that he could not do his normal duties with the production of a medical certificate on 7 February 2018.
Mr Guzman states that the applicant was always able to do his work, and that the applicant became unreliable around the time that Mr Guzman learned of personal issues which the applicant was having.
Mr Guzman states that the applicant was a good soccer player because he was a better and fitter player than most, and his right hip was never an issue until the end of his employment with the respondent.
Steve Price has provided statements dated 10 July 2018 and 13 February 2019. He states that he is employed with the respondent as a warehouse supervisor. He states that he has supervised the applicant at times, but for the past few years that supervision has been from Mr Guzman.
Mr Price states the applicant performed a number of different jobs. He states the applicant’s predominant role was in the returns area, but he cannot comment on the amount of time the applicant worked in that area. He states that the manoeuvring of sofas and other furniture items was done by the applicant on his own. He states that the weights of sofas would vary and the heaviest would weigh 68 kg. Mr Price states that generally two people would get a heavy item on to the mechanised picker.
The medical evidence
The clinical notes from the medical centre which the applicant attends commence from August 2014 and end on 3 December 2020.
There are some entries in regard to right knee pain in late 2014 and early 2015. There is no reference to those symptoms being related to work.
An ultrasound and x-ray report of the right knee dated 28 November 2014 records mild loss of joint space, but otherwise the study of the knee is within normal limits.
On 1 December 2014 there is a note of “pain is easing” by Dr Awais, presumably to the right knee in the context of the notes taken at around that time.
On 13 December 2014 Dr Awais records “played soccer that exacerbated his pain”. Dr Awais does not record the site of pain, but it is within several entries which relate to the applicant’s right knee.
On 26 April 2015 there is a record made by Dr Awais of “mild knee pain”, although the notes do not record which knee is being referred to.
There are many entries in relation to the applicant’s right hip in these clinical notes. There appears to be an increase of symptoms in the right hip in late 2015 and early 2016. There are regular attendances for right hip pain from late 2016. There are many entries for the prescription of strong analgesic medication.
A CT scan of the right hip dated 18 January 2018, which is a month before the applicant ceases work with the respondent reports, “Advanced OA of the right hip”.
The applicant attended Dr Thomas, orthopaedic surgeon, for treatment for his right hip in February 2018 and Dr Thomas writes that the applicant’s right hip condition “is most likely a combination of steroids and alcohol which has caused him AVN”.
On 22 February 2018, Dr Hussain records: “His hip problem has been worsened because he has been lifting heavy weights at work”.
On 11 September 2018, which is seven months after the applicant ceases work, Dr Hussain records: “Now having pain in the left knee – consequential injury”.
An x-ray report of the left knee dated 12 September 2018 reports an effusion in the suprapatellar recess.
On 25 June 2020 Dr Hussain provides a referral for an MRI scan of the right knee, although
I could not locate any specific reference to the right knee in his notes for that attendance. An MRI scan of the right knee dated 11 July 2020 reports a suspected minor tear of the medial meniscus.On 11 August 2020 Dr Hussain records the applicant having pain in the right knee, as well as the right hip, back and neck.
Dr Dias, consultant occupational physician, has provided a report at the request of the applicant’s solicitors dated 29 April 2021.
Dr Dias recites a history of the work undertaken by the applicant and the onset of symptoms in the right hip, lower back and both knees which is consistent with the evidence provided by the applicant. He records that the applicant was pain free and asymptomatic in those parts of his body prior to the applicant’s commencement of employment with the respondent in 2009.
Dr Dias diagnoses the following injuries referable to this dispute:
(a) persistent aggravation of pre-existing right hip osteoarthritis, secondary to the heavily manual and repetitive nature and conditions of the applicant’s job roles;
(b) chronic right knee pain with an associated degenerative tear of the posterior horn and mild medial compartment degenerative change, secondary to the heavily manual and repetitive nature and conditions of the applicant’s job roles, and
(c) chronic left knee pain with an associated mild medial compartment degenerative change, secondary to the heavily manual and repetitive nature and conditions of the applicant’s job roles.
Dr Dias records that the applicant complains of pain in his neck, left shoulder, left elbow and left wrist, but notes that the applicant did not seek treatment for these body parts until two and a half years after ceasing employment with the respondent: He writes:
“On the balance of probabilities, due to the long time lag between the deemed date of injury and Mr Mazzocchi's seeking treatment for his cervical spine and left upper limb conditions, I do not believe that Mr Mazzocchi's conditions affecting his neck and left upper limb are causally related to the nature and conditions of his employment with Unitrans Asia Pacific Pty Ltd.”
Dr Dias records that in mid-February 2021 the applicant’s right knee gave way after attending physiotherapy and an MRI scan found an undisplaced fracture of the medial tibial plateau.
Dr Dias opines that the applicant’s employment with the respondent is the main contributing factor to the development of the conditions affecting his lumbar spine and both knees. This fits the definition of disease injury in section 4 (b)(i) of the 1987 Act. He opines that the applicant’s employment with the respondent is the main contributing factor to the aggravation, acceleration and deterioration of the applicant’s previously asymptomatic right hip condition.
Dr Pillemer, orthopaedic surgeon, has provided reports at the request of the respondent dated 13 June 2018, 14 December 2019 and 14 February 2022.
In his report dated 13 June 2018, Dr Pillemer records that the applicant’s work was very heavy and involved lifting tables, beds and sofas on a daily basis. He records that the applicant had continuing problems with his low back, right hip and down his right leg with symptoms becoming progressively worse over time.
Dr Pillemer refers to an MRI scan of the right hip taken in August 2012 which showed findings in keeping with osteonecrosis of the right femoral head with early collapse of the subchondral plate.
Dr Pillemer opines that any ongoing problems which the applicant has with his lumbar spine and pain going down his right leg is due to the heavy nature and conditions of the applicant’s work.
Dr Pillemer opines that the problems with the right hip are not related to the applicant’s work but are due to idiopathic degenerative changes, quite possibly on the basis of avascular necrosis. He opines that at most the nature and conditions of work have aggravated the right hip, but are not a substantial contributing factor to the development of osteoarthritis in the right hip.
Dr Pillemer writes that he would not relate the applicant’s knee symptoms to the nature and conditions of his work.
In his report dated 14 February 2022, Dr Pillemer records that the applicant has had problems with his right knee since 2018 when it was crushed by a machine and because of the heavy lifting he was doing. He records that the applicant has a full range of movement in his knees. Dr Pillemer concludes that that there is no pathology in his knees and the pain is being referred from his right groin region.
Dr Pillemer notes that the applicant had a fall in February 2021 which could be regarded as a consequential injury as it occurred after physiotherapy and that the applicant does have ongoing problems with his right knee. He states that symptoms are being referred from the right hip, although it is possible that some symptoms are related to the undisplaced fracture of the tibial plateau. Dr Pillemer writes: “His right knee as mentioned is a consequential injury”.
Dr Pillemer confirms his opinions on the cause of symptoms in the applicant’s lumbar spine and right hip which he set out in his reports dated 13 June 2018 and 14 December 2019. He opines that there would have been “a relatively minor aggravation of his underlying avascular head of the femoral head” from the applicant’s employment with the respondent.
A summary of submissions
Mr Trainor for the applicant submits that the evidence discloses that the applicant’s work with the respondent was heavy and repetitive.
Mr Trainor submits that Dr Pillemer confounds an allegation of employment ‘causing’ the underlying right hip osteoarthritis with the allegation that the applicant’s employment ‘aggravated’ the underlying osteoarthritis when addressing the cause of the applicant’s right hip condition.
Mr Trainor submits that Dr Pillemer’s opinion on the cause of injury to the knees should be rejected because it proceeds on the false premise that the applicant alleges a frank crushing injury to the right knee in 2018 and he fails to deal with the allegation of injury to the knees. In the alternative, Dr Pillemer concedes the likelihood of a consequential injury to the right knee in February 2021.
Mr Necovski for the respondent submits that Mr Guzman observed the applicant with an altered gait form as early as 2010, which is contrary to the assertion made by the applicant and which was recorded by Dr Dias, that he was asymptomatic prior to his commencement of employment with the respondent. Mr Necovski also refers to Dr Dias not having clinical records prior to 2014, so that he does not have a complete history regarding the applicant’s right hip condition. He submits that because of this, the opinion of Dr Dias on the cause of the applicant’s right hip condition should be rejected.
Mr Necovski notes that Dr Pillemer concedes a relatively minor aggravation of his underlying avascular necrosis of the femoral head, but he submits that this does not amount to the main contributing factor to the aggravation of pathology in the right hip. He submits that
Dr Pillemer identifies only a temporary aggravation of the right hip caused by the applicant’s work, and the applicant’s work did not amount to a permanent aggravation of the right hip condition.Mr Necovski submits that there is insufficient evidence for there to be a finding of a consequential condition affecting the right knee because crucial factors such as how the injury to the right knee in mid-February 2021 occurred, and whether there could have been another cause of the injury, have not been investigated.
Mr Necovski submits that assessment of 0% whole person impairment made by Dr Dias means that there is no dispute in relation to the left knee and should not be referred for assessment.
Findings and reasons
The right hip
Dr Dias records from the applicant that his right hip was asymptomatic prior to his commencement of employment with the respondent, there is no expert who opines that the degenerative changes in the applicant’s right hip were caused by work. For the applicant to succeed in establishing that he sustained an injury to his right hip in the course of his employment with the respondent, he must meet the requirements of section 4 (b)(ii) of the 1987 Act.
Section 4(b) of the 1987 Act provides as follows:
“In this Act:
Injury:
………….
(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 is 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.”
The application of section 4 (b)(ii) of the 1987 Act was well summarised by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. 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.”
Mr Necovski observes that the claim form completed by the applicant states that he was having to pick up and put away sofas that weighed 100 to 140 kg, but later reforms those allegations to items that weighed more than 25 kg.
However, I find it reasonable to infer that what was contained in the claim form was no more than an attempt by the applicant to emphasise that the items he had to manhandle were very heavy. Upon further consideration when providing evidence for this dispute, the applicant has provided a more realistic estimate of the weights of the items he had to deal with. Mr Price states that the heaviest items were sofas which weighted 68 kg. Even if those items were to be moved by two employees as stated by Mr Price, that remains a considerable weight to manoeuvre.
Mr Guzman refers to the applicant having to attend to about half of the 10 to 15 return items per day. If the applicant was manoeuvring five to eight items per day, that is an average of one item per hour which was manoeuvred on and off an order picker by the applicant. That indicates regular strain upon certain parts of the applicant’s anatomy, including the right hip, over a period of eight years.
Both Mr Guzman and Mr Price state that the applicant did different roles throughout the warehouse, but Mr Price states that the applicant’s predominant role was in the returns area. Mr Price states that Mr Guzman was the applicant’s supervisor for the past few years. Nonetheless, as a warehouse supervisor, Mr Price would have observed the main tasks that the applicant was undertaking for the respondent.
Mr Guzman states that the work for the employees of the respondent was laid back. However, that does not mean that there were not heavy tasks to be undertaken by the applicant in the warehouse.
I accept from a review of this evidence that the applicant did undertake heavy work with the respondent on a regular basis which would have put a strain on his right hip.
The principles set out in AV v AW require a consideration of competing causal factors (both work and non-work related) of the aggravation of a disease. Dr Dias questioned the applicant and considered relevant material and opined that the applicant had persistent work aggravation of pre-existing right hip osteoarthritis, secondary to the heavy manual and repetitive nature and conditions of the applicant’s work, and that his employment with the respondent has been the main contributing factor to the aggravation of the applicant’s right hip condition.
There are no other competing factors to the aggravation of the disease in the right hip, other than the opinion from Dr Pillemer that the problems that the applicant has had with his right hip are idiopathic. However, a review of the clinical notes from Dr Hussain from 2014 to February 2018 does reveal a worsening of the applicant’s right hip over that period of time, which coincides with the heavy work being undertaken by the applicant in his employment with the respondent. I have already referred to the increase of symptoms in the right hip in late 2015 and early 2016, and regular attendances for treatment of right hip pain from late 2016 onwards, in my review of the clinical notes of the applicant’s general practitioners.
The evidence from the applicant of a worsening of right hip symptoms from 2105, and those entries in the clinical notes from the applicant’s general practitioners, are consistent with the description of an aggravation of a disease as stated by AP Roche in Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [66]:
“An aggravation or exacerbation of a disease occurs where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms (Federal Broom Co Pty Ltd v Semlitch[1964] HCA 34; (1964) 110 CLR 626).”
Dr Pillemer concedes that the applicant’s work has aggravated the applicant’s right hip, but he does not explain why that work cannot be the main aggravating factor to the aggravation of the right hip disease, especially when there are no other competing factors identified other than being due to idiopathic degenerative changes. Nor does Dr Pillemer consider the increase in symptoms in the right hip between 2015 and February 2018, which coincides with heavy work being undertaken by the applicant in his employment with the respondent.
I agree with the submission made by Mr Trainor that while Dr Pillemer addresses the cause of the underlying right hip osteoarthritis, he does not address the aggravation of the underlying osteoarthritis, which is occurring at the same time that the applicant is undertaking heavy work for the respondent.
Any material provided by a treating specialist should always be given prominence in a dispute such as this. However, the one report from Dr Thomas is brief and does not address the extent to which the applicant’s work has contributed to his right hip condition. I agree with a submission made by Mr Trainor that Dr Thomas may have identified a cause of the applicant’s right hip condition (being from the use of steroids and alcohol), but he does not offer an opinion as to whether there has been any aggravation of the condition and the possible cause of any aggravation.
Dr Dias bases his opinion on causation on his understanding that the applicant had an asymptomatic condition prior to his employment with the respondent. However, that does not alter the finding I propose to make in favour of the applicant on the cause of injury to the right hip. The primary issue is whether there has been an aggravation and the circumstances in which that aggravation occurs.
From my review of the evidence, the aggravation of the applicant’s right hip condition occurs when he is employed with the respondent and is undertaking heavy work. Dr Dias has given due consideration to this history and relevant medical material, and he has concluded that the applicant’s employment is the main contributing factor to the aggravation that right hip disease.
I am satisfied from a review of the evidence that the applicant has satisfied the requirements of section 4 (b)(ii) of the 1987 Act and that the applicant has sustained an injury to his right hip in the course of his employment with the respondent.
The right knee
There are a few references to treatment for the applicant’s right knee with his general practitioners in late 2014 and early 2015, but I could not locate, nor was I referred to, any further references in those notes to treatment required for the right knee until August 2020. The applicant provides no explanation for this.
Dr Dias writes that the long time lag of two and a half years from the applicant’s cessation of employment to the time of treatment for the neck and left upper limb means that Dr Dias could not accept those body parts as being connected to the applicant’s work. That same rationale should therefore also apply to the claim the applicant has made for an injury to the right knee.
There is a considerable time lag between the applicant’s cessation of work and his need to seek treatment for his right knee. There is no other contemporaneous evidence, be it lay or medical, other than from the applicant, which can confirm that the applicant did sustain an injury to his right knee.
I am therefore not satisfied that the applicant did sustain an injury to the right knee in the course of his employment with the respondent. There will be an award for the respondent for this claim made by the applicant.
The applicant claims, in the alternative, that he has sustained a consequential condition affecting his right knee following a fall he had in mid-February 2021, and which led to an undisplaced fracture of the right medial tibia.
The ARD does not claim a consequential condition of the right knee, only an injury, but the respondent did not object to the applicant making this an alternative claim for a condition affecting his right knee.
The applicant states that after completing physiotherapy treatment in mid-February 2021 his right knee gave way and he sustained an undisplaced fracture affecting the medial tibial plateau. However, he does not state how long after he completed physiotherapy that this event occurred, nor does he provide any specific details of the circumstances in which his right knee gave way.
Dr Dias records this event but does not draw any connection between the condition of the applicant’s right hip and this event.
Dr Pillemer does not record details of the applicant’s fall in February 2021, but he does accept that the fall could be regarded as a consequential injury as it occurred after physiotherapy, and he assesses 2% permanent impairment of the right lower extremity due to the undisplaced fracture of the tibial plateau as part of his assessment of whole person impairment.
Although the details of the applicant’s fall in February 2021 are scant, there is no medical evidence which disputes the claim for a consequential condition affecting the right knee as a result of this fall, which occurred after the applicant underwent physiotherapy, presumably for his right hip. While Dr Pillemer opines that the undisplaced fracture of the right tibial plateau from the fall “could be regarded as a consequential injury”, it is sufficient for him to include the effects of the fall as part of his assessment of the applicant’s whole person impairment.
On the evidence and expert opinion which is available, I am satisfied that the applicant has sustained a consequential condition affecting his right knee as a result of the injury to his right hip, and there will be a referral for assessment for that body part.
The left knee
I could not locate any references to treatment for the applicant’s left knee in the notes from his general practitioners prior to his cessation of employment with the respondent.
The note from Dr Hussain on 22 February 2018 states: “Now having pain in the left knee – consequential injury”.
While caution must be required when relying on clinical notes, that short note from
Dr Hussain that the applicant is only now having pain in the left knee, and that it is likely to be consequential, provides a strong inference that Dr Hussain did not understand that the applicant had at any time sustained an injury to his left knee at work.There is again no explanation from the applicant in regard to this. An alternative claim for a consequential condition affecting the left knee is not made by the applicant.
I am therefore not satisfied that the applicant sustained an injury to his left knee in the course of his employment with the respondent and there will be an award for the respondent in respect of this claim.
The body parts to be referred for assessment by a Medical Assessor
The is no claim for permanent impairment for scarring in the ARD. A referral for assessment for impairment for scarring was not included in the body parts to be referred for assessment in the applicant’s written submissions, although it was included in submissions in reply. The respondent did not address any claim for scarring in its submissions.
Nonetheless, the claim for scarring does form part of the assessment of whole person impairment, and should be included as a body part to be assessed.
The body parts to be assessed by a Medical Assessor will therefore be:
(a) lumbar spine;
(b) right lower extremity (hip);
(c) right lower extremity (knee – as a consequential condition), and
(d) scarring (TEMSKI).
Whether the applicant sustained a psychological injury in the course of his employment with the respondent
The applicant’s evidence
The applicant states that over time he was made to feel singled out due to the light duties work he was being given. He states that management and co-workers began to make comments and refer to him in degrading names. He states that some of the names were “pussy”, “fat cunt”, “toughen up”, “be a man”. The applicant states that he felt he could not approach management about this. The applicant states that there were many circumstances where he felt bullied at work.
The applicant states that he became highly stressed, and “was seeking medical advice for signs of depression due to this” and also his sudden restriction of physical movement.
Other lay evidence
Mr Guzman states that he was not aware of the applicant being subject to restricted duties despite being the applicant’s direct manager since the applicant commenced work with the respondent.
Mr Guzman states that in early 2018 the applicant became very unreliable as he would turn up to work late and sometimes not show up at all. He states that this led to a written warning being given to the applicant.
Mr Guzman states that during this period he had a number of private conversations with the applicant where the applicant expressed personal issues that he was experiencing. He states that the applicant informed him that he was going through a breakdown and that he was having suicidal thoughts due his marriage separation. Mr Guzman states that he had a conversation with the applicant wherein the applicant said he no longer considered his life to be worth living, and Mr Guzman convinced him to access the respondent’s EAP services.
Mr Guzman denies that he made inappropriate comments or name calling about the applicant. He states that he never witnessed such comments, including by another worker, Steve Price.
Mr Price states that he is the warehouse supervisor and was the direct supervisor of the applicant. He states that he could have made comments to the applicant to the effect of “fat ass” or “fat cunt”, although he does not recall doing so. He states that if he did so, then it was not said with any malice but as general banter which would have been returned by the applicant. He states that there was some level of swearing and banter in the workplace, but it was not directed at anyone personally.
Mr Price states that if the applicant had any issues at work then the applicant would have addressed them to Mr Guzman or someone from Human Resources.
The medical evidence
I could not locate, nor was I directed to, any references to stress, anxiety or depression in the clinical notes from the applicant’s general practitioners which commence in August 2014, until an entry that is made by Dr Hussain on 22 February 2018. Dr Hussain notes on that date the applicant having long term problems with his right hip, but also: “He was extremely depressed because he is being bullied at work as he cannot work as well as he used to because his knee has deteriorated”.
Dr Hussain records five days later:
“Has experienced bullying in workplace because of his problem in the right hip which causes him pain.
Has experienced recurrent flashbacks of bullying. He also has nightmares about it as well.”
Dr Hussain conducts depression assessments on the applicant on 22 and 27 February 2022.
There are notes from Amelia Bongon, psychologist, for an attendance by the applicant on 15 April 2018. Ms Bongon records that the applicant experienced bullying from management while on light duties because of his hip pains. The notes also include: “He was called fat and names by managers and supervision which affected his life, feeling low, feeling hurt, lost motivation and self esteem”. Ms Bongon records the applicant having dreams of getting mental abuse and being sworn at when at work.
Dr Clark, consultant forensic psychiatrist, has provided a report at the request of the applicant’s solicitors, dated 7 May 2021. Dr Clark conducted his consultation by video due to Covid restrictions.
Dr Clark records that the applicant was not able to work at a required pace due to his hip condition and he was abused and was called “fat and lazy”. He also records that the applicant was interrogated by HR at work.
Dr Clark records that the applicant has disturbed sleep with nightmares, and also has panic attacks.
Dr Clark diagnoses the applicant as suffering a Major Depressive Disorder precipitated by work bullying.
Dr Clark assesses the applicant as having 19% whole person impairment due to his psychological injury.
Associate Professor Robertson, consultant psychiatrist, has provided reports at the request of the respondent dated 31 January 2019, 25 March 2019 and 17 February 2022.
In his report dated 31 January 2019, A/Prof Robertson records that the applicant was subjected to timing of his lunch and toilet breaks, being disadvantaged by unfair rostering decisions, frequently being hectored by managers, and being falsely accused of a series of thefts in the workplace. He records that the applicant became increasingly isolated in the workplace and subjected to uncharitable or abusive behaviour.
Associate Professor Robertson opines that the applicant has developed a psychopathological response to behaviour by his superiors which the applicant believes is consistent with bullying. He diagnoses the applicant as having an adjustment disorder with anxiety and depressed mood.
In a supplementary report dated 25 March 2019 A/Prof Robertson refers to an investigation report which “outlined different versions of events”, and is informed of “personal issues with his family” which A/Prof Robertson states was not mentioned by the applicant at the consultation in January 2019. Associate Professor Robertson writes that he is “agnostic” about which version of events of what occurred in the workplace should be preferred. Associate Professor Robertson states:
“A psychiatrist cannot take a position as to which version of events is to be preferred. If compelled to a set of assumptions that the employer's version of events is to be preferred, this would be an equally credible psychosocial stressor to cause his adjustment disorder.
As to the two questions or propositions you pose, ie. that the current emotional stress was due to the separation from his wife (not reported contemporaneously at the interview) and his chronic pain is one potential explanation as is the proposition (b) the employer believing it was acting reasonably in regards to the question of tardiness or abandoning employment, if these appear to be more credible accounts of what transpired in the workplace then these would be comparable grounds to lead to the development of adjustment disorder as Mr Mazzocchi's own account.”
In his third report dated 17 February 2022, A/Prof Robertson records that the applicant reports that he is in “a good spot” having left Sydney and having formed a stable and supportive relationship. He considers that the applicant has some low grade depressive symptoms.
Associate Professor Robertson assesses the applicant as having 7% whole person impairment.
A summary of submissions
Mr Trainor submits that the evidence of Mr Price largely corroborates the applicant’s allegations of bullying in the workplace, but then Mr Price seeks to qualify and downplay those allegations by stating the comments were not said with malice. He submits that the motivations of Mr Price are irrelevant because the issue is how the comments were perceived by the applicant, and he refers to the decision in State Transit Authority v Chemler [2007] NSWCA 249 (Chemler) in support of this submission.
Mr Trainor also refers to there being no statement from Daniela Carbone, despite there being a reference to an unsigned statement from her in the dispute notice dated 17 April 2019.
Mr Trainor submits that the failure to produce this document, irrespective of whether it was signed or not, is an attempt by the respondent to obtain a forensic advantage, and an inference should be drawn against the respondent that this statement does not assist the respondent in the defence of the applicant’s claim.Mr Necovski points out that the applicant did not report bullying to his general practitioner until the day he ceased work on 22 February 2018. He submits that if the applicant was subjected to bullying then he would have reported that at an earlier time because he was frequently consulting Dr Hussain. This weighs against establishing causation with regard to a psychological injury.
Mr Necovski submits that the assertions made by the applicant in regard to bullying are broad and general in nature. The applicant does not identify who bullied and harassed him and when such events occurred, but instead the applicant only offers generalised statements by referring to employees of the respondent.
Mr Necovski submits that the respondent was compassionate towards the applicant, which is inconsistent with the applicant’s allegations of bullying, and provides by way of example the attempts made by Mr Guzman to formalise some light duties for the applicant once the applicant started to have days off work due to his hip condition. Mr Necovski also refers to the applicant confiding in Mr Guzman with some personal problems he was having, and which is contrary to the applicant’s assertion that he could not approach management.
Mr Necovski submits that it was the personal issues which substantially impaired the applicant’s mental health and was the predominant reason for the applicant not turning up to work. He submits that this information was not adequately disclosed to Dr Clark, which should lead to a rejection of the opinion provided by Dr Clark.
Findings and reasons
As has been observed by Mr Necovski, the allegations of bullying and harassment made by the applicant are broad and general in nature. The applicant does not name anyone who bullied him. The applicant does not describe particular instances when he was bullied. The applicant merely refers to a few words such as “pussy” and “be a man” that he alleges were directed at him. He states that there have been many circumstances where he felt bullied at work, but he does not provide specific details of bullying.
The applicant states that management and co-workers began to make comments and refer to him in degrading names, but he does not state who in management was doing this.
I find it difficult from the available evidence to accept that Mr Guzman was the source of any bullying. Mr Guzman provides quite specific details of the applicant confiding in him in regard to personal issues which the applicant was having, including advice regarding the respondent’s EAP services when the applicant informed Mr Guzman that his life was no longer worth living. That is not consistent a person who has engaged in bullying, and the applicant does not dispute the evidence provided by Mr Guzman on this issue.
Ms Bongon records the applicant being questioned about stealing, Dr Clark records the applicant being “interrogated” by HR, and A/Prof Robertson records the applicant being falsely accused of theft. However, the applicant does not provide his own evidence in regard to any of this in his statements.
There is no reference to accusations of stealing by the applicant in the statements of
Mr Guzman or Mr Price. It may be that the unsigned statement by Ms Carbone refers to these accusations, but the onus rests on the applicant to provide sufficient evidence to support the allegations that he has made. I am not satisfied from the available evidence that the applicant was subjected to accusations of theft.The applicant also does not provide any evidence of the timing of his lunch and toilet breaks, and unfair rostering decisions, which are recorded by A/Prof Robertson, and which led to A/Prof Robertson’s initial opinion that the applicant’s adjustment disorder was caused by “bullying behaviour of his superiors”.
Nonetheless, Mr Price concedes that he could have made comments to the applicant to the effect of “fat ass” or “fat cunt”, although he does not recall doing so and that if he did so, then it was not said with any malice but as general banter which would have been returned by the applicant.
In Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K) DP Roche said at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’.”
I agree with the submission made by Mr Trainor that the evidence of Mr Price largely corroborates the applicant’s allegations of bullying in the workplace, but that Mr Price seeks to qualify and downplay those allegations. It would have greatly assisted the applicant in succeeding in this part of his claim if more specific details of bullying and harassment were provided by him. Nonetheless, the concessions made by Mr Price weigh in favour of a finding that the applicant was subjected to taunts and ridicule in the workplace which caused him to suffer a psychological injury.
That is supported by the applicant providing details of specific words that were used in the workplace in the handwritten statement that appears to have been attached to his claim form dated 27 February 2018. It is also supported by details taken by Ms Bongon when the applicant first sees her on 15 April 2018 which includes: “He was called fat and names by managers and supervision which affected his life, feeling low, feeling hurt, lost motivation and self esteem”.
I do not accept the submission made by Mr Necovski that the lack of any record made by
Dr Hussain of the applicant having any psychological problems before the applicant ceased work weighs against a finding of a psychological injury sustained in the workplace. It is not uncommon for a person to desist from medical treatment for a psychological condition until the symptoms become quite severe.Furthermore, even though Mr Guzman paints a picture of an easy-going workplace, that does not mean that there were not taunts and ridicule directed towards the applicant.
There are no references to psychological problems arising from the applicant’s employment until 22 February 2018, but I also could not locate any references in the clinical notes from the applicant’s general practitioners to other personal issues, such the applicant’s marriage breakdown.
I accept from my review of the evidence that the applicant was the subject of bullying and harassment, in particular by way of taunting and name calling.
Dr Clark merely opines that the applicant’s Major Depressive Disorder was precipitated by work bullying, but that he does record the applicant being abused in the workplace, which
I have accepted did occur.A somewhat different opinion is reached by A/Prof Robertson that “the alleged behaviour of his superiors” was the cause of the applicant’s adjustment disorder, but A/Prof Robertson also records that the applicant was subjected to uncharitable and at times abusive behaviour in the workplace.
The psychological injury that the applicant claims to have sustained in the course of his employment fits the definition of a disease injury in section 4 (b)(i) of the 1987 Act as there appears to be no past psychological symptoms recorded by Dr Clark or A/Prof Robertson.
I have already referred to there being no references to psychological problems prior to 22 February 2022 in the clinical notes from the applicant’s general practitioners which date back to August 2014, although I expect that several years of right hip pain would have been stressful for the applicant and he did have some chest pain in July 2016 without any apparent cause noted by Dr Querishi.Neither Dr Clark nor A/Prof Robertson opine that the applicant’s employment is the main contributing factor to the contracting of a psychological disease, as is required by section 4 (b)(i) of the 1987 Act. However, DP Roche in State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi) at [72] said:
“That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process.”
The decision of AV v AW, which I have already referred to when making a determination on the physical injuries claimed by the applicant, addresses the requirements to satisfy section 4 (b)(ii) of the 1987 Act. However, DP Snell includes a very helpful application of the term ‘main contributing factor’ as it appears in both sub-clauses of section 4 (b) of the 1987 Act, when he said at [78]:
“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.”
Both Dr Clark and A/Prof Robertson are aware of the applicant having chronic right hip pain for several years and both doctors record the applicant separating from his wife. Nonetheless both doctors opine that the applicant has sustained psychological injury in the course of his employment with the respondent.
The opinion from A/Prof Robertson is qualified by comments he makes in his report dated 25 March 2019 that the applicant’s separation from his wife, the chronic pain from the applicant’s right hip condition, and the respondent’s actions regarding what it believed to be the applicant’s tardiness in fulfilling his work duties, could be just as much a cause of the applicant’s psychological condition as that which is volunteered by the applicant.
The complaints of taunting and ridicule made by the applicant in the claim form that he completed five days after he ceased work, the record made by Ms Bongon of name calling some two months after the applicant ceased work, and then the opinions of the two psychiatrists, notwithstanding the qualifications made by A/Prof Robertson in his second report, leads me to be satisfied that the weight of evidence supports a finding that as a result of bullying and harassment in the workplace, the applicant’s employment was the main contributing factor to the development of a psychological injury in the course of his employment with the respondent.
There will be a referral to a Medical Assessor for an assessment of whole person impairment as a result of psychological injury sustained by the applicant in the course of his employment with the respondent.
The claim for weekly payments of compensation
The applicant states that he was out of the workforce for more than three years following his cessation of employment with the respondent.
The applicant states that he commenced employment with Mountain Blue Farms at Tabulam in March 2021 as a farmhand on a casual basis. He states that he is working eight hours per day for four days per week. He states that his job involves spraying chemicals and he drives a buggy to do this work. He states that there is no heavy lifting, and he is currently able to cope with the demands of this job.
Dr Dias opines that following the cessation of employment with the respondent, the applicant was unfit for any form of sustainable gainful employment for approximately three years. He opines that the applicant is fit for work for 35 hours per week within restrictions relating to lifting, bending and twisting of the spine, and prolonged periods of standing and walking.
When Dr Dias sees the applicant in April 2021, he records that the applicant commenced employment with Mountain Blue Farms in March 2021 and is working nine hours per day for four days per week in a relatively light job. He opines that the applicant is capable of continuing to work on a part time basis in this role, although his prognosis for continuing in that job is guarded due to his compensable physical injuries.
When Dr Pillemer sees the applicant in June 2018, he opines that the applicant is certainly not fit for employment.
In his report dated 14 February 2022, Dr Pillemer opines that the applicant had no work capacity from 22 February 2018 to March 2021 due to ongoing problems with his back, right hip and right knee. He states that the main reason for the applicant having time off was due to the need for a total hip replacement.
Dr Pillemer records that the applicant is managing full time work as a farmhand and has had no time off since commencing that employment in March 2021.
Dr Clark records that the applicant is unfit for his pre-injury employment and has found other work. He places the applicant in category 3 for Employability in his assessment of whole person impairment on the basis that he has moderate impairment from a psychiatric perspective.
In his report dated 17 February 2022, A/Prof Robertson records that the applicant commenced work as a farmhand in March 2021 working 32 hours per week. He opines that the applicant is currently working appropriate duties consistent with his mental state disturbance, and he places the applicant in category 2 for Employability in his assessment of whole person impairment.
I have made a finding that the applicant did sustain an injury to his right hip in the course of his employment with the respondent. Based upon the opinions of Dr Dias and Dr Pillemer, the applicant should be found to have no current work capacity from 22 February 2018 to 28 February 2021.
The applicant’s work capacity wages schedule claims no current work capacity up until 7 March 2021, but I have chosen the end date for this period to be 28 February 2021 because there is no wage material to support the date claimed by the applicant. There is no independent record of the specific date the applicant commences employment with Mountain Blue Farms.
The applicant’s entitlement to weekly payments pursuant to sections 36 and 37 of the 1987 Act ceased on 20 August 2020. The applicant claims weekly payments thereafter pursuant to section 38 of the 1987 Act.
The applicant submits that the denial of incapacity made by the respondent in its dispute notice dated 17 April 2019 is in effect a work capacity decision, and relies upon the decision of Arbitrator Harris of Roberts v University of Sydney [2021] NSWCC 25 (Roberts) which allows for the Commission to have jurisdiction to determine an entitlement pursuant to section 38 of the 1987 Act.
The respondent submits that this dispute is distinct from the circumstances of Roberts, because the dispute notice in that matter addressed sections 43 (1) (a) and (c), whereas in this matter the respondent simply disputed liability to pay weekly payments pursuant to section 43 (2)(a), which is not work capacity decision.
The applicant replies that the apparent conflict between the procedural requirements of section 43 and the broad jurisdictional power of the Commission pursuant to section 105 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) should be resolved in favour of the Commission having jurisdiction, as occurred in the decision of Member Haddock in Dickson v Zurich Financial Services Australia Limited [2022] NSWPIC 22 (Dickson).
The claim made by the lawyers on behalf of the applicant dated 8 June 2021 “claims weekly benefits pursuant to section 33, 34, 35, 36 and 37”, but not section 38. However, the ARD does claim weekly benefits after 130 weeks and on an ongoing basis.
Member Haddock said in Dickson at [203]:
“The Commission’s jurisdiction to award weekly compensation after the third entitlement period was confirmed by the Court of Appeal in Hochbaum v RSM Building Services Pty Ltd[2020] NSWCA 113. It would indeed appear “irrational and unjust” that the Commission would have jurisdiction to award weekly compensation after the expiry of five years, but not to award it during the section 38 period.”
Member Haddock agreed with what was said in Roberts that section 105 of the 1998 Act provided a broad jurisdiction to determine all disputes arising under the 1987 and 1998 Acts, including entitlements provided for pursuant to section 38 of the 1987 Act. I agree with this.
I consider the Commission has jurisdiction to determine the applicant’s entitlements to weekly payments of compensation pursuant to section 38.A different rationale, but one that leads to the same outcome, is derived from the decision of Member McDonald in Chea v Woolworths Group Limited [2022] NSWPIC 26 (Chea), where there was a similar argument as in this dispute that weekly payments pursuant to section 38 could not be awarded by the Commission because there had not been a work capacity decision. Member McDonald said at [81]:
“If Mr Beran’s submissions are correct and the Commission has no jurisdiction, a worker is subject to the consequences of any decision the insurer might make, or fail to make, whether or not it complied with the legislation and with no right of review and no mechanism for a worker to enforce his rights.”
In this dispute the representative of the respondent at the telephone conference on 1 December 2021 advised that its insurer had not received the letter of demand for weekly payments of compensation and a lump sum payment dated 8 June 2021. The representative also advised that the insurer had not received the ARD and it had only become aware of the claim from correspondence from the Commission.
Nonetheless, the respondent was able to arrange medical appointments within a timeframe which allowed for this dispute to proceed within a reasonable range for a date for conciliation and arbitration in this jurisdiction, and the applicant agreed to attend, and did attend, those medical appointments.
No further dispute notice has been received into evidence by the Commission and the matter proceeded on the basis of a denial of liability for weekly payments of compensation. I agree with what was said in Chea that a worker cannot be subject to a failure by an insurer to make a decision, without there being a mechanism for a worker to enforce his or her rights. The applicant’s claim for weekly payments of compensation after 130 weeks can be determined by this Commission.
The applicant contends in his written submissions that he has been earning on average $390 per week from 8 March 2021 to 23 January 2022. There are no pay advices attached to the applicant’s wages schedule, despite a direction made at the telephone conference on 1 December 2021 that the applicant “attaches or refers to all documents necessary to calculate…the applicant’s post-injury earnings”.
The calculation of $390 per week appears to be based on the average of the total amount set out in the column headed ‘Deductible Amount’. There are several difficulties in relying upon what is set out in this wages schedule to ground an award of weekly payments pursuant to section 38.
The first and obvious difficulty is that what the applicant presumably lists as his actual earnings appear in a column headed ‘Deductible Amount’, which is a reference to what was previously contained in section 35 of the 1987 Act (now repealed). The column headed ‘Ability to earn/current weekly earnings’ includes figures that are in excess of the applicant’s PIAWE. Presumably, that column seeks to set out the applicant’s loss on a weekly basis.
Secondly, the periods set out in the wages schedule are for each fortnight, but the applicant’s PIAWE is set out on a weekly basis (being the amount of $1,272.50, which was the amount initially stated in the ARD). However, the calculation of an average of $390 per week appears to be based on reverting to 23 fortnights rather than 46 weeks.
Thirdly, there are negative amounts in the column ‘Deductible Amount’, without any explanation as to what those figures mean.
If the figures set out in the column ‘Deductible Amount’ are actual earnings, then in the absence of actual wage details from Mountain Blue Farms, those figures are not consistent with the evidence of the applicant that since March 2021 he has been working eight hours per day for four days per week, or what has been recorded by Dr Dias and A/Prof Robertson that the applicant has been working between 32 and 36 hours per week.
There is no evidence which I could locate that upon commencing employment with Mountain Blue Farms, the applicant worked his way up to working 32 hours per week, which would be quite feasible given the applicant was returning to the workforce after three years. There is no evidence which I could locate that the applicant’s weekly hours of work vary because he has to rest due to increased pain in his right hip and lower back. Dr Dias sees the applicant within the first two months of his commencement of employment with Mountain Blue Farms and records the applicant doing nine hours of work per day for four days per week.
Section 38 (3)(b) makes a payment of weekly benefits of compensation contingent upon a worker earning at least $155 per week and working not less than 15 hours per week. The amount to be paid in weekly benefits for a worker with a current work capacity is provided by section 38 (7) as:
“The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after 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.”
Clause 8 of Schedule 3 of the 1987 Act sets out the meaning of “current weekly earnings” to be:
“‘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.”
The use of an average weekly amount a worker’s earnings was employed under the now repealed section 40 of the 1987 Act. However, the definition of ‘current weekly earnings’, which has applied since the 2012 amendments, requires a determination of the greater amount of the applicant’s actual gross weekly earnings and what he is able to earn in suitable employment.
In the absence of primary material which evidences the applicant’s actual earnings while employed with Mountain Blue Farms, it appears that the applicant is able to work and earn income for at least 32 hours of work per week.
I acknowledge that there might be an argument that the applicant can work more hours per week given the work duties he has described. Dr Dias places the applicant’s work capacity within certain restrictions at 35 hours per week. However, Dr Dias also considers that the applicant’s current job is one that the applicant is capable of doing. It therefore appears to me that the applicant is currently suited to 32 hours of work per week in the light duties job which is undertaking at Mountain Blue Farms.
The applicant should be given credit for being able to return to some form of employment.
I also note that the respondent made no submissions on the applicant’s ability to earn in suitable employment if, as has been found, there was a determination that the applicant had sustained an injury to his right hip in the course of his employment with the respondent.In the absence of primary material which evidences the applicant’s actual earnings, the best
I can do is to determine the applicant’s ability to earn for a 32 hour week on what is provided for under the Horticulture Award 2020.Duties of a Level 2 employee under the Horticulture Award include “irrigation, spraying or pruning under general supervision”, which appear to fit the work described by the applicant. The hourly rate for a Level 2 employee up to 30 June 2021 was $20.41 per hour, which for 32 hours of work per week amounts to $653.10 per week. Thereafter the hourly rate is $20.92 per hour, which for 32 hours of work per week amounts to $669.45 per week.
The award of weekly payments of compensation in favour of the applicant will be as follows:
(a) $992.75 per week from 22 February 2018 to 24 May 2018, pursuant to section 36 (1) of the 1987 Act;
(b) $836 per week from 25 May 2018 to 20 August 2020 pursuant to section 37 (1) of the 1987 Act;
(c) $836 per week from 21 August 2020 to 28 February 2021, pursuant to section 38 (6) of the 1987 Act;
(d) $182.90 per week from 1 March 2021 to 30 June 2021, pursuant to section 38 (7) of the 1987 Act, and
(e) $166.55 per week from 1 July 2021 to date and continuing, pursuant to section 38 (7) of the 1987 Act.
The calculation of weekly benefits of compensation set out in the applicant’s written submissions does not include any adjustment for increases in the applicant’s PIAWE as provided for by section 82A of the 1987 Act. Given that there is that entitlement, and I have included an increase in the applicant’s ability to earn on 1 July 2021 due to an increase in the award rate under the Horticultural Award, the applicant should get the benefit of an increase in his PIAWE as provided by section 82A of the 1987 Act.
I will allow liberty to the parties to apply for an adjustment on the award of weekly payments of compensation if agreement can be reached between them on the appropriate increases in the applicant’s PIAWE pursuant to section 82A of the 1987 Act.
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