McKee v Wizpro Pty Ltd
[2024] NSWPIC 55
•8 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | McKee v Wizpro Pty Ltd [2024] NSWPIC 55 |
| APPLICANT: | Albert McKee |
| RESPONDENT: | Wizpro Pty Ltd |
| MEMBER: | John Wynyard |
| DATE OF DECISION: | 8 February 2024 |
| DATE OF AMENDMENT: | 12 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and section 60 expenses following motor vehicle accident whilst applicant driving in the course of his employment as a truck driver; whether employment a substantial contributing factor where accident had occurred after applicant suffered a syncope at the wheel; whether quantum of weekly payments should be reduced due to post-injury involvement with Army Reserve; Held – whilst cause of syncope not identified, the additional factors of the applicant’s travelling 100km/h in a Mack Metro-Liner in the course of his employment were also substantial contributing factors; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd considered and applied; evidence as to post injuries earnings was not probative of an ability to perform suitable duties; section 32A and Wollongong Nursing Home v Dewar considered and applied; award applicant as being without current work capacity. |
| DETERMINATIONS MADE: | The Commission finds: 1. The applicant suffered injuries as a result of a motor vehicle accident on 3 May 2022 which arose out of and in the course of his employment. 2. Employment was a substantial contributing factor to the injuries. 3. The applicant has had no current work capacity since 3 May 2022. The Commission orders: 1. The respondent will pay pursuant to s 36 of the Workers Compensation Act 1987 the weekly sum of $1,365.68 from 3 May 2022 to 23 May 2023. 2. The respondent will pay pursuant to s 37 of the Workers Compensation Act 1987 the weekly sum of $1,150.04 from 24 May 2023 and continuing. 3. The respondent is to have credit for any weekly payments of compensation paid. 4. The respondent will pay the applicant’s medical expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and/or HIC Notice of Charge. |
STATEMENT OF REASONS
BACKGROUND
The facts in this matter were not in dispute. Mr McKee was driving a MAC truck at about
100 kmph when he had an experience which he described at paragraph 21 of his statement of 10 August 2023:“…..I experienced a strange sensation down my neck and my next recollection is suspended in the driver's seat, on my side in the truck, which had flipped over.”
A picture of the truck was exhibited in the Application to Resolve a Dispute (ARD) page 7 and showed that the MAC truck was virtually unrecognizable, the cab and trailer being extensively crushed.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Was employment a substantial contributing factor pursuant to s 9A of the 1987 Act?
(b) If so, what was the quantum of Mr McKee’s entitlement to weekly payments of compensation?
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
This matter was heard on 21 November 2023 by video link. The applicant was represented by Mr Josh Beran of counsel, instructed by Mr James Bartley of Messrs Bartley Lawyers. The respondent was represented by Mr Tom Grimes of counsel, instructed by Ms Brooklyn Tolhurst of Messrs Hicksons Lawyers. Mr Jorge Rendon appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
Mr McKee gave oral evidence concerning his activities with the Army Reserve.
FINDINGS AND REASONS
Statement by Mr McKee
Mr McKee is currently 48 years of age. He was a long-serving member of the Army Reserve, and had commenced with the respondent’s predecessor, Doble Express Transport in February 2021 as a truck driver. The respondent bought the business in late 2021.
Mr McKee described injuries to his neck, suffered whilst he was in the Army Reserve. These were described in general from [8], without any dates being supplied. On one occasion he went upside down landing on his head causing injury to C4/5, C5/6 and C6/7, in respect of which he received some physiotherapy. On other occasions he had exacerbations whilst with the Army Reserve, but “no surgical procedure was indicated unless it got to the point that I was unable to walk”.[1] Mr McKee also suffered other injuries which he did not describe, saying they were recorded with the Department of Veterans Affairs, but which were not interfering with his duties as a truck driver with the respondent. At [42] of his statement,
Mr McKee said:“In November 2022, I jarred my back which was an aggravation of a previous condition. I received some physiotherapy and that aggravation has substantially resolved.”
[1] ARD page 1.
Mr McKee described an injury to his left leg when relocating a 50-calibre gun tripod. He suffered from hemiplegic migraines for which he was under the care of his neurologist,
Dr Duma. He had not, however, suffered any difficulties with his migraines since April 2020.The subject accident occurred on 3 May 2022 when Mr McKee was driving trucks out of Tamworth. He was on a journey to Coonabarabran, driving a heavy rigid Mack Metro-Liner. He was approximately 11km from Coonabarabran, coming over a crest and approaching a straight. Mr McKee said at [21]:[2]
“At this stage, I experienced a strange sensation down my neck and my next recollection is suspended in the driver’s seat, on my side in the truck, which had flipped over. I do not have any recollection regarding the accident occurring.”
[2] ARD page 2.
Mr McKee understood from his later conversations with the attending police and others that the truck veered off the road after Mr McKee became unconscious. Mr McKee was taken to Coonabarabran Hospital and then transferred to Dubbo Base Hospital after X-rays had been taken.
Mr McKee said that he consulted with his general practitioner (GP) Dr Nigam complaining of continuous headaches, central neck pain and stiffness, and that he was unstable whilst walking, dizzy with head turns and disorientated. Dr Nigam directed Mr McKee to Tamworth Hospital where he was subjected to various tests and where he remained for about nine days. Throughout 2022 Mr McKee underwent an EEG, an MRI scan of the brain, and echocardiogram and CT coronary angiogram, and sessions with Sarah Taylor, a psychologist with Calm Consultants.
Mr McKee was examined by Dr Ross Mellick, neurosurgeon on 7 July 2022, and by
Mr Michael Edger, neurosurgeon, on 27 March 2023. Liability was denied by the insurer on 18 November 2022 and Mr McKee subsequently underwent a bilateral carotid arterial Doppler ultrasound. He also consulted Dr Paula Wye, clinical psychologist from
January 2023 to March 2023. Mr McKee continues to suffer a disability and impairment and remains on Centrelink benefits.
MEDICAL
Dr Ross Mellick
Dr Ross Mellick, neurologist, assessed Mr McKee for the respondent on 7 July 2022.[3]
Dr Mellick took a consistent history of the event prior to the motor vehicle accident which he recorded as “an unusual feeling in the back of [Mr McKee’s] neck which he likened to like a marble at the base of the skull to about half way down. The sensation was there only for a few seconds. His next recollection was regaining continuity of recall of the cabin of his truck”.[3] Reply page 13.
Dr Mellick noted that Mr McKee had suffered a hemiplegic migraine on two occasions prior the subject accident. Dr Mellick said:
“In 2019 and 2020, [Mr McKee] suffered an identical episodic disorder which involved slurring of speech, drooping of the left side of his face and dilatation of the left pupil. There was no visual loss. He said that on the first occasion the headache, which was generalised, occurred for about five hours before the other symptoms appeared and on the second occasion, there was a latency of about one hour before they appeared. On each occasion, there was a full recovery which occurred after approximately ten days and he was away from driving for about three months. Subsequently, he was able to resume his work as a truck driver after each episode.”
Dr Mellick said there was no indication that the accident was associated with an epileptic fit and suggested that perhaps a cardiac investigation should be undertaken. This was undertaken by Dr Mark Herman on 4 October 2022.[4]
[4] Reply page 23.
Dr Mark Herman, cardiologist
Dr Herman said:[5]
“Syncope (blackout) has multiple aetiologies including cardiac, neurological or neurocardiogenic causes”
[5] Reply page 23.
He thought that it was “very unlikely” that syncope was cardiac.
Mr Michael Edger
Mr Michael Edger, neurosurgeon, on 27 March 2023 took a history recording Mr McKee’s experience as a “weird sensation in his neck, likely something was running up and down the back of his neck.”[6] Mr Edger took a consistent history of Mr McKee’s subsequent treatment and symptoms.
[6] ARD page 23.
Mr Edgar reported that investigations had been carried out of the neck, chest and pelvis which were all normal, save for some possible fractures at the right 9th and 10th ribs.
Mr Edger noted that Mr McKee was investigated extensively by a number of neurologists, a cardiologists and a sleep apnoea specialist. Multiple investigations including ECG, Holter monitor, EEG, sleep-deprived- EEG and other medical imaging were all unremarkable and failed to point to a cause for the blackout, Mr Edger said.
Mr Edger noted the past chronic neck pain which occurred following a football injury in 2011 whilst in the Army Reserve and that Mr McKee had previously suffered from hemiplegic migraines, hypertension, renal stones, appendicectomy and left knee chondromalacia patellae.
Prior to the subject injury Mr Edger noted that Mr McKee enjoyed the Army Reserve and was involved in the Rural Fire Service.
Mr Edger’s diagnosis was:[7]
“On the basis that the investigations have been negative for structural abnormalities in the brain, neck vessels, EEG and cardiac tests (ECG), an exact neurological diagnosis is difficult to make with a high degree of accuracy. However, cervical spondylosis and hemiplegic migraine would not present in this fashion.
The ongoing symptoms and impairment are likely a combination of a mild-moderate head injury (post-concussive syndrome) and psychological response to the accident (post-traumatic stress disorder).”
[7] ARD page 24.
Mr Edger was asked a somewhat convoluted question regarding the question of employment and whether it had been a substantial contributing factor. Mr Edger said:[8]
“Yes. For the reasons already given above. The ongoing disability and impairment do not relate to any pre-existing medical diagnoses which Alby had confirmed prior to his accident. The blackout would have been a transient matter. The current impairment is most likely the result of the head injury and psychological responses to the accident, and of the ongoing impairment and inability to work since that accident.”
[8] ARD page 25.
Mr Edger could not determine the cause of the blackout. He advised that the consequences of the motor vehicle accident were the diagnosed injuries and “not the blackout per se”. He said:[9]
“It is likely that the majority of the current symptoms and incapacity are a combination of a post-concussive syndrome and psychological responses to the accident (posttraumatic stress disorder), and these are the result of the accident, since had the blackout occurred whilst Alby was not at work, he would not have sustained the trauma of the truck turning over, with the accompanying likely brain concussion.”
[9] ARD page 25.
Mr Edger advised that it was unlikely that Mr McKee would be able to return to full time work without restrictions. He said:[10]
“Given that the cause of the blackout and motor vehicle accident cannot be pinpointed, as multiple investigations including cardiac and neurological have failed to identify a cause, and the additional issue of obstructive sleep apnoea, I think it is unlikely that [the applicant] will be able to regain his commercial truck driving licence.”
[10] ARD page 26.
Dr Mukesh Kumar
A report of Dr Mukesh Kumar, consultant psychiatrist, dated 13 June 2023 confirmed that
Mr McKee had suffered a post-traumatic stress disorder as a result of the motor vehicle accident.[11] He described the symptoms.[12] There has been no challenge to this diagnosis.[11] ARD page 28.
[12] ARD page 30-31.
Dr Kumar said that McKee had been unable to work since the accident:[13]
“…..He still has ongoing symptoms which are still quite severe. In my opinion, his ability to work in the future has been severe affected. He currently has no work capacity and is totally impaired. These restrictions are ongoing, and it likely that they may become indefinite, if the symptoms do not respond to treatment.”
[13] ARD page 33.
Mr Grimes in his submissions referred to some entries in the GP notes that, subsequent to the subject accident, Mr McKee had been complaining of low back problems. In submissions in reply Mr Beran said that his instructions were that Mr McKee was being discharged from the Army Reserve. Evidence was accordingly taken from Mr McKee in that regard, as there was no documentary evidence before the Commission regarding this development.
General practitioner’s notes
The clinical notes from the Tamworth Aboriginal Medical Service were lodged.[14] Mr McKee’s first attendance was on 17 September 2014 following his neck injury with the Army Reserve.
[14] ARD page 97.
On 1 December 2022 an entry reported a subsequent injury with the Army Reserve:[15]
[15] ARD page 131.
“date of injury 16/11/2022
power walking 5km and slipped in wet mud and fell when corected jarrign lower back ADF has approved
of 6x GP treatment sessions
has been phased out of work cover Noted reed letter from ADF for this
pain has improved but mobility limited to 150m then back pain comes on adn walk slower may have to rest
states some night pain
back pain radiates down both legs below both knees no paraesthesia or weakness
takes PCM prior to sleep-- able to sleep therafter
bowel and bladder ok”
(As written).
Mr McKee’s physiotherapist, reported on 5 December 2022:[16]
“Thank you for your ongoing care and support regarding Albert and his recent injury. He first presented with lower back, L knee and R shin pain following a slipping incident with the army reserves. His knee pain seems to be settling and appears to be an aggravation of a previous injury which we are managing well. The lower back is unfortunately not changing and I believe It may be worthwhile doing some imaging. He is completing home exercises and I will continue to see him weekly at this stage. If you have any queries please feel free to contact me.”
[16] ARD page 327.
On 21 December 2022 Mr McManus reported further:
“Thank you for your ongoing support regarding Albert and his ongoing lower back pain. He unfortunately has made no further progressions with his pain and I feel that he may require imaging on the lower back. He is continuing his home exercises and I will review him again follow his next review. If you have any queries please feel free to contact me.”
Submissions
Mr Beran
Mr Beran submitted that the evidence was unchallenged that Mr McKee had no work capacity, referring to the opinions of Mr Edger and Dr Kumar.
The issue for determination is whether the provisions of s 9A of the 1987 Act applied,
Mr Beran submitted, and he referred to the terms of the section in arguing that they did. The time and place of the injury was not in dispute, and the nature of the work being performed and its duration were not in issue. There was no evidence that a similar injury would have happened anyway had Mr McKee not been at work and his prior state of health was an irrelevant matter, as the diagnoses were of injuries suffered as a result of the subject accident.The leading authority regarding s 9A was Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[17] Mr Beran submitted. He referred to Department of Community Services v Clifton,[18] Tanya Ashkar v Aerocare (a decision of the Workers Compensation Commission No. 7500/2011 per Arbitrator Glenn Capel (as he then was)) and Nicola Tisma v Shurex Surveys Pty Ltd.[19] These were examples, Mr Beran said, of cases were s 9A was applied. Applying Badawi, Mr Beran submitted, the injuries suffered by
Mr McKee had been caused by the truck crash, which itself had been caused by multiple causal factors. Employment was one of them, and was a real factor of substance.[17] [2009] NSWCA 324.
[18] [2006] NSWWCC PD 310.
[19] [2016] NSWWCC 118.
The pre-injury average weekly earnings (PIAWE) was agreed, he submitted.
Mr Grimes
Mr Grimes conceded that the respondent’s evidence did not traverse the medical advice that Mr McKee had suffered post-traumatic stress disorder and a post concussive disorder. He also conceded that there had been no evidence to challenge that Mr McKee had no work capacity in respect of those injuries. However, he referred to the entries in the clinical notes of Mr McKee’s GP and physiotherapist, which suggested that Mr McKee retained some ability to earn until his further back injury of 16 November 2022.
Mr Grimes submitted that the Clifton decision was of some vintage and had been overtaken by the Court of Appeal decision of Badawi.
He conceded that the provisions of s 9A(2) could be found in the applicant’s favour. However he exempted from that concession the question of whether the injury would have happened anyway about the same time or same stage of the worker’s life if he had not been a worker and not in employment. Mr Grimes argued that the blackout had not been caused by Mr McKee’s employment, and thus employment could not be seen as a substantial contributing factor to his injuries.
Mr Beran in reply
In reply, Mr Beran referred to Mr McKee’s statement that the back condition had resolved. However, in view of the evidence referred to by Mr Grimes, some discussion ensued as to whether that was indeed the case. Accordingly – notwithstanding that submissions had almost completed – it was appropriate to call oral evidence to clarify the situation.
Oral evidence from Mr McKee
Mr McKee said he was declared physically unable to continue in the Army Reserve in July 2023, at the Singleton Barracks. He said that he was told he had too many injuries, and in cross examination he mentioned his lumbar spine, right ankle, cervical spine, and left knee chondromalacia patella.
Further, since the subject injury he suffered an injury whilst doing a ‘VFA,’ which is a physical fitness test. (I assume that is the injury recorded on 16 November 2022 by his GP).
Mr McKee said he was unable to run in any event, so he had to do a 5km walk, as well as some push ups and sit-ups. During the walk he slipped and injured his lower back, his left knee and his right ankle - which resulted in him being taken to hospital.He said that up until the subject accident he was attending the Army Reserve ever Tuesday night for about three hours.
He estimated that since the subject accident he had attended the Army Reserve on Tuesday nights on approximately 12 occasions. He was paid $193 per night. He said that he was no longer able to drive a truck, and he was given more simple tasks such as taking notes and assisting to plan a route. He had been unable to run since 2007.
When asked whether he had any trouble doing those simple tasks Mr McKee acknowledged that he did. It now took him a very long time to work out how to do things, and it made him become angry and frustrated.
DISCUSSION
Section 9A of the 1987 Act provides relevantly:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note :In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)-
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.
…”
Section 32A of the 1987 Act provides relevantly:
"suitable employment" , in relation to a worker, means employment in work for which the worker is currently suited-
(a) having regard to-
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)regardless of-
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv)the worker's place of residence.”
As submitted by the parties, the leading authority on s 9A of the 1987 Act is Badawi. At [48] Allsop P, Beazley JA and McColl JA, Basten JA and Handley AJA agreeing, summarised the following propositions as being correct and uncontroversial (authorities omitted):
“(1) The strength of the causal linkage between the employment concerned and the injury is the question in issue: …
(2) The fact of the injury arising out or in the course of employment is relevant but not determinative of itself: …
(3) Both s 4 and s 9A require independent satisfaction….
(4) Section 9A requires that the employment concerned be “a substantial contributing factor to the injury”. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors: …
(5) Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge…
(6) Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact: …
(7) The phrase “employment concerned” in s 9A(1) bears the same meaning as “employment” in the phrase “arising out of or in the course of employment”: …
At [82] the plurality found, relevantly to this case:
“….. The “proper link” in the legislative context was a causal connection expressed by the words “a substantial contributing factor”, meaning one that was real and of substance. …”
Mr Grimes quite properly conceded that the facts of this case could satisfy all the requirements of s 9A to establish that employment had been a substantial contributing factor to Mr McKee’s injuries.
The time and place of the injury was 10km from Coonabarabran at about 6.30am on
3 May 2022, when Mr McKee was a truck driver driving a Mack Metro-Liner truck at about 100kmph. Mr McKee had been employed effectively since February 2021 with the respondent’s predecessor in title, and had been on the road since about 2am on 3 May 2022.However, Mr Grimes may have relied on the terms of subparagraph (d) to base his defence that employment had not been a substantial contributing factor. Mr Grimes’ argument, as I understood him, was that the real cause of the injuries was Mr McKee’s syncope whilst he was driving. Mr McKee could not explain what happened after he felt a strange sensation down his neck. He had no memory of what happened between then and when he regained consciousness, suspended in the driver’s seat of his Mack Metro-Liner, which had flipped over.
Mr Grimes submitted that no medical expert could identify the cause of the syncope, although neurological and cardiac reasons had been excluded. There was, however, no suggestion that Mr McKee’s employment had anything to do with the onset of his syncope, which was clearly the actual cause of the Mack Metro-Liner leaving the road and being so comprehensively wrecked. Seen in that light it could not be said that employment was real or of substance. Mr McKee’s blackout was not caused by the employment, Mr Grimes submitted. Although he did not develop his submission further, it follows that Mr Grimes was perhaps relying on the proposition that the occurrence of Mr McKee’s syncope would probably have happened anyway at about the same stage of his life if he had not been at work.
Section 9A(2)(d) is only applicable if it were demonstrated that there was a probability of the injuries or similar injuries occurring anyway. Remembering that the subject injuries are a post-concussion syndrome and a post-traumatic stress disorder, it is highly improbable, if not impossible, that those injuries would have occurred at about the same stage of Mr McKee’s life whether he had been at work or not.
There was certainly no evidence to support that proposition, and the submission is rejected.
In reply Mr Beran agreed that this case was a good example of the difference between the provisions of s 9A and s 4(b) of the 1987 Act. As has been seen, the authorities provide that pursuant to s 9A, Mr McKee only has to show is that employment had been “a substantial contributing factor” amongst other possible such factors. Section 4(b), on the other hand, requires an applicant to show that employment was “the main contributing factor”, that is to say, the only contributing factor.
I accept Mr Beran’s submission in that regard. Although the syncope remains a mystery and was undoubtedly a factor in the causation of the motor vehicle accident, I am comfortably satisfied that the factors I have alluded to above, namely that Mr McKee was driving his Mack Metro-Liner at about 100kmph in the course of his employment, were also real factors of substance.
Accordingly I am satisfied that Mr McKee’s injuries, namely a post-concussive syndrome and a post-traumatic stress condition, arose out of and in the course of his employment, which was a substantial contributing factor to his injuries.
Weekly payments
It is apparent that Mr McKee was able to continue his involvement with the Army Reserve on a number of Tuesdays following his accident, and notwithstanding his injuries. I accept the viva voce evidence Mr McKee gave at the end of the case, as far as it goes. It seems that the further aggravation to his lumbar spine in his fall on 16 November 2022 was the final straw in putting to an end his involvement with the Australian Defence Force. This ended in July 2023 on the basis that he was medically unfit. He said that he was then suffering from a bad back, right ankle symptoms, cervical spine symptoms, and left knee chondromalacia patella. This in addition to the injuries that his employment injury caused.
As was conceded by Mr Grimes, this was the only evidence that Mr McKee had retained a residual earning capacity after his injuries. It was not mentioned in the dispute notices, and none of the expert witnesses commented on it. However, once the ARD had been served, the notes that Mr Grimes now relies on were within the respondent’s knowledge, as they were amongst the material lodged. Notwithstanding, the respondent did not dispute the quantum of the weekly benefits claimed, or enquire as to the implications arising from the notes Mr Grimes relied on. I infer that in accepting the applicant’s wages schedule, the insurer did not wish to raise the issue, no doubt for good reason.
As indicated, s 32A defines ‘suitable employment’ as employment in work for which the employer is currently suited. In Wollongong Nursing Home v Dewar[20] DP Bill Roche examined the definition of “suitable duties” in s 32A. He said from [63]:
“Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd[2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’….
In determining if a worker is ‘not able to return to work’ in suitable employment there will often be issues about the suitability of the work in question. Such issues will be determined on a case-by-case basis, depending on the available evidence dealing with the issues in subs (a) of the definition.”
[20] [2014] NSWWCCPD 55.
Mr McKee has demonstrated that he was able to perform suitable duties when he was attending his Tuesday army reserve obligations subsequent to the onset of the subject injuries. He was apparently earning $193 for those attendances, the exact number of which was not available. It was not clear whether that sum was gross or net. Mr McKee estimated 12 such meetings, but such an estimate was clearly a guess. Otherwise, it was not challenged that Mr McKee had been totally incapacitated by the subject injuries. By the time of his medical discharge in July 2023, it appears that his physical limitations had deteriorated to the point where he was medically unfit for the Army Reserve. This evidence is hardly probative. It was given orally by Mr McKee, who had no warning and no opportunity to prepare his answers. The definition of ‘suitable employment’ in s 32A requires pursuant to subparagraph (a)(i) that regard be had to “the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker…”
As noted, there are no details provided in any medical information regarding Ms McKee’s subsequent involvement with the Army Reserve. Mr McKee’s evidence was imprecise, and I am not able to determine whether his duties could be described as a “real job” as discussed by the learned DP. As the issue was not raised by the respondent until Mr Grimes made his submissions, I decline to accept his submission that Mr McKee’s entitlement to weekly compensation has been affected.
The PIAWE is agreed at $1,437.55. The wages schedule encompasses a first entitlement period from 21 February 2023 to 23 May 2023. 95% of the PIAWE is $1,365.68, and 80% thereof for the second entitlement period is $1,150.04.
The parties agreed that a general order s 60 expenses would suffice.
Accordingly, I make the following findings and orders:
The Commission finds:
(a) the applicant suffered injuries as a result of a motor vehicle accident on
21 February 2023 which arose out of and in the course of his employment;(b) employment was a substantial contributing factor to the injuries, and
(c) the applicant has had no current work capacity since 21 February 2023.
The Commission orders:
(a) the respondent will pay pursuant to s 36 of the 1987 Act the weekly sum of $1,365.68 from 21 February 2023 to 23 May 2023;
(b) the respondent will pay pursuant to s 37 of the 1987 Act the weekly sum of $1,150.04 from 24 May 2023 and continuing;
(c) the respondent is to have credit for any weekly payments of compensation paid, and
(d) the respondent will pay the applicant’s medical expenses pursuant to s 60 of the 1987 Act on production of accounts, receipts and/or HIC Notice of Charge.
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