Meiners v Newcastle Polished Concrete Pty Ltd
[2023] NSWPIC 652
•6 December 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Meiners v Newcastle Polished Concrete Pty Ltd [2023] NSWPIC 652 |
| APPLICANT: | Shaun Meiners |
| RESPONDENT: | Newcastle Polished Concrete Pty Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 6 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments and medical expenses for bilateral inguinal hernia injury to the lumbar spine; respondent disputes that injury was sustained in the course of employment; reference to AV v AW; extent of incapacity of worker and consideration of suitable employment; reference to relevant award rates of pay; reference to Wollongong Nursing Home P/L v Dewar and Husnain Pty Ltd v Workers Compensation Nominal Insurer & Another; Held – the worker sustained injury in the course of his employment with the respondent; award of weekly payments of compensation for various periods of total and partial incapacity and the payment of medical expenses for treatment. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a bilateral inguinal hernia injury in the course of his employment with the respondent with a deemed date of injury of 13 August 2021. 2. The applicant had a partial incapacity for work between 14 August 2021 to 31 October 2022. 3. The applicant had the ability to earn $830 per week in suitable employment between 14 August 2021 and 30 June 2022 and the ability to earn $870 per week in suitable employment between 1 July 2022 and 31 October 2022. 4. The applicant had no current work capacity between 1 November 2022 and 1 December 2022. 5. The applicant had a partial incapacity for work between 2 December 2022 to 22 December 2022. 6. The applicant had the ability to earn $870 per week in suitable employment between 2 December 2022 to 22 December 2022. 7. The applicant’s pre-injury average weekly earnings were $1,051. The Commission orders: 8. The respondent is to pay the applicant weekly payments of compensation pursuant to s 36 of the Workers Compensation Act 1987 at the rate of $168.50 per week from 13 August 2021 to 12 November 2021. 9. The respondent is to pay the applicant weekly payments of compensation pursuant to s 37 of the Workers Compensation Act 1987 as follows: (a) $20.80 per week from 13 November 2021 to 31 March 2022; (b) $36.40 per week from 1 April 2022 to 30 June 2022; (c) $25.60 per week from 1 October 2022 to 31 October 2022; (d) $895.60 per week from 1 November 2022 to 1 December 2022, and (e) $25.60 per week from 2 December 2022 to 22 December 2022. 10. The respondent is to pay the applicant’s costs of reasonably necessary medical treatment for the bilateral inguinal hernia injury sustained by the applicant, including the costs of the surgery performed by Dr Wright on 1 November 2022. |
STATEMENT OF REASONS
BACKGROUND
The applicant in these proceedings, Shaun Meiners, claims that he sustained bilateral inguinal hernias in the course of his employment as a concrete polisher with the respondent, Newcastle Polished Concrete Pty Ltd, as a result of undertaking heavy lifting for prolonged periods of time.
The applicant claims that his employment was terminated by the respondent on 13 August 2021 when he asked for light duties work due to excruciating abdominal pain, and he was informed that there were no light duties work available.
A dispute notice was issued by icare on behalf of the respondent on 6 April 2022, wherein it was disputed that the applicant had sustained an injury arising out of or in the course of his employment. The notice also stated that the applicant did not have total or partial incapacity for work, and that medical treatment was not reasonably necessary, as a result of an injury sustained in the course of his employment with the respondent.
The applicant states that he did not work from 14 August 2021 until 27 February 2023 due to his hernia injury. The applicant underwent hernia repair surgery on 1 November 2022.
The applicant claims weekly payments of compensation from 14 August 2021 to 26 February 2023 and also that the respondent pay for reasonably necessary costs of medical treatment for his hernia injury, including costs associated with the surgery performed on 1 November 2022.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a hernia injury arising out of or in the course of his employment with the respondent (s 4 of the Workers Compensation Act 1987 (the 1987 Act));
(b) the extent of any incapacity suffered by the applicant as a result of an injury sustained in the course of his employment with the respondent (ss 32A, 33, 36 and 37 of the 1987 Act), and
(c) whether the applicant is entitled to the payment of reasonably necessary medical expenses as a result of the injury sustained an injury sustained in the course of his employment with the respondent (s 60 of the 1987 Act).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The parties attended a conference and hearing on 22 November 2023. 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 McManamey appeared for the applicant, instructed by Ms Tuco. Mr Stockley appeared for the respondent, instructed by Mr Michael.
The Application to Resolve a Dispute (ARD) was amended to claim weekly payments of compensation from 14 August 2021 to 26 February 2023.
There remained a disagreement between the parties as to the calculation of the applicant’s pre-injury average weekly earnings (PIAWE). The applicant set out a calculation of PIAWE of $961.03 in an Application to Admit Late Documents filed on 15 November 2023, which included copies of payslips from 2 April 2020 to 18 August 2021.
The respondent contends that PIAWE is $929.87, but no calculations have set out by the respondent to support this.
I gave the parties until 1 December 2023 to allow liberty to apply if agreement could be reached on PIAWE, but no communication from either party was received by that date.
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;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents filed by the applicant on 15 November 2023.
Oral evidence
There was no application to adduce oral evidence or to cross examine the applicant or any other witnesses who have provided statements.
FINDINGS AND REASONS
Whether the applicant sustained a hernia injury arising out of or in the course of his employment with the respondent
The applicant’s evidence
The applicant has provided a statement to an investigator retained by the respondent dated 3 November 2021. The applicant has also provided further statements dated 3 May 2022 and 28 March 2023.
The applicant states that he commenced employment on a full-time casual basis as a concrete polisher with the respondent in November 2019. He states that his role required him to use machinery, undertake heavy lifting, polishing concrete, and using hand tools to smooth concrete surfaces. He states that his employment was extremely physically intensive and that lifting heavy machinery was part of his day to day duties. He states that he was required to lift heavy machinery on and off a trailer for the jobs which he was required to do for the respondent and that some of that machinery weighed up to 400 kilograms.
The applicant states that on 23 or 24 June 2021 he was working with a colleague named ‘Ross’ at a site in Newcastle. The applicant states that Ross and himself had to carry a machine which he estimates to have weighed approximately 120 kgs up two flights of stairs. The applicant states that he felt a twinge in his lower abdomen when he was lifting the machine at the halfway point up the stairs.
The applicant states that he persisted with his duties because he was always hurting himself in this extremely physical job, and he thought he would recover from this injury as he had done in the past. He states that he did not report the incident to his employer, Andrew Brown, because he gave no further thought to what he felt after the incident occurred.
The applicant states on 17 July 2021 he was at home when he tried to pull a lounge towards himself to get a cigarette lighter when he felt more excruciating pain in his lower abdomen. He states that the pain had become so unbearable that by 4.00pm on the following day he called an ambulance and went to Belmont Hospital. He states that he had a CT scan at the hospital and was informed that he had two small inguinal hernias.
The applicant states that he saw a general practitioner, Dr Mayanamada, on 21 July 2021 and the doctor wrote out a Certificate of Capacity advising that the applicant should be able to perform light duties.
The applicant states that he returned to work on 12 August 2021 and began to experience pain in his groin when operating a hand-held electric grinder. He states that on the following day he experienced excruciating abdominal pain while at work and rang his employer to advise that his general practitioner had certified him fit for light duties, and he might have a workers compensation claim. The applicant states that he was informed that there were no light duties because lifting heavy machinery was an integral part of his job and his employment was terminated.
The applicant states in a handwritten statement dated 3 May 2022 that he believes the incident in June 2021 when he felt pain in his abdomen occurred at apartments in Cooks Hill and he provides several photographs of the stairs where he claims the injury occurred.
The respondent’s evidence
Andrew Brown has provided a statement dated 5 November 2021. He states that he is the sole director of the respondent company.
Mr Brown states that the machines used by the respondent weigh in excess of 100kg and at least two workers are rostered to work if a site requires the movement of machines upstairs or some level of lifting is required. He states that the machines are transported to sites on trailers and the trailers have a ramp and a pulley system for loading and unloading these machines.
Mr Brown states that his records show that the applicant did not work on 23 and 24 June 2021. He states that he received a text message from the applicant on 23 June 2021 stating that he had the flu and that he was going to have a couple of days off work.
Mr Brown states that his records show that the applicant worked on 25 and 26 June 2021 at an address at Blacksmiths. He states there were no stairs on that site. Mr Brown has provided photographs of work being done on that site to confirm this.
Mr Brown states that on the afternoon of 18 July 2021 he received a text message from the applicant stating that he was going up to Belmont Hospital and may not be able to work for a few days because of “bad pains in my side for two days”.
Mr Brown states that on 19 or 20 July 2021 he saw James Hotson, who is an associate of the applicant. Mr Brown states that he said to Mr Hotson that the applicant was in a bad way and Mr Hotson replied: “I know what caused that. He was wrestling on Friday night. He played up and was wrestling again”.
Mr Brown states that he understands the applicant claims that he did not return to work until 12 August 2021, but Mr Brown states that his records show that the applicant worked between 9 and 13 August 2021 inclusive.
The medical evidence
The discharge summary from Belmont Hospital dated 18 July 2021 includes the following:
“Left sided loin pain for 3 days
Sudden onset after lifting a heavy lounge (more than 50 kgs) himself
Sharp pain. Also associated with abdominal tightness”.
The discharge summary also records incidental findings from a CT scan of multiple diverticulosis, calcium deposit along the aorta, and bilateral inguinal hernia. The discharge summary includes:
“Explained to patient of his bilateral inguinal hernia
No pain but his work does involve a model of manual lifting”.
There is a report from Dr Wright, specialist general surgeon, dated 25 August 2021. Dr Wright ultimately performed the hernia repair surgery for the applicant on 1 November 2022. Dr Wright records that the applicant presents “with more or less asymptomatic bilateral inguinal hernias”. Dr Wright states that the hernias “are certainly not very symptomatic and not particularly big”, so that the applicant is to be placed on the routine waiting list for repair surgery.
A report has been provided by Dr Mayanamada Poonacha dated 5 May 2023 at the request of the applicant’s lawyers. It is recorded that the applicant’s work involved very heavy lifting for the last three years. Dr Mayanamada Poonacha opines:
“On examination, bilateral groin lumps, tender and reducible consistent with bilateral inguinal hernia, directly related to heavy machine lifting over a period of time”.
Dr Khan, surgeon, has provided a report at the request of the applicant’s lawyers dated 4 November 2022, although the date of the consultation for this report was on 28 July 2022.
Dr Khan records that the applicant’s job involved the use of a concrete polisher and floor grinder. He records that the applicant would infrequently lift a machine weighing between 100kg and 120kg to change pads and diamonds, and also to lift that machine up and down stairs where there were no lifts.
Dr Khan records that the applicant was lifting a machine up two flights of stairs with another person sometime in June 2021 when he felt a sudden twinge in his lower abdomen. He records that the pain slowly eased, and the applicant was able to continue working. He also records that the applicant developed pains in his left side in July 2021 when moving a lounge.
Dr Khan opines that as a result of the general nature and conditions of the applicant’s employment which involved heavy lifting activities, including work-related incidents which occurred in June and July 2021, the applicant appears to have sustained injury to his abdomen resulting in bilateral inguinal hernias. Dr Khan then opines:
“The aetiology or causation of inguinal hernia is multifactorial which includes hereditary or familial factors, obesity, chronic constipation, chronic bronchitis, heavy lifting, prostatism or difficulty in urination due to prostatomegaly and immune deficiency disorders. In the case of Mr Meiners, these factors do not appear to be playing a significant role in the development of the bilateral inguinal hernia but for his work related activities and episodes of heavy lifting. Therefore, on the balance of probabilities rather than possibilities, it is my opinion that his employment and the nature and conditions including any work-related episodes of heavy lifting appear to be the substantial contributing factor to the development of bilateral inguinal hernia.”
Dr Khan also opines that the applicant’s employment was the main contributing factor to the applicant’s injury and condition.
A summary of the submissions from the parties
Mr McManamey for the applicant submits that there is no issue that the work undertaken by the applicant involved heavy lifting and strenuous manual labour. He submits that there is no medical evidence which disputes the opinions of Dr Mayanamada Poonacha and Dr Khan that the hernias sustained by the applicant were caused by heavy lifting.
Mr McManamey submits that it is not necessary to establish that any specific incident caused the onset of the hernias because the only medical opinions on causation identify the heavy nature of the applicant’s work as being the cause of this injury.
Mr Stockley for the respondent concedes that the opinion of Dr Khan is the only major opinion on the question of the cause of the injury, but he submits that it is not enough for Dr Khan to simply state that heavy work can cause hernias and must have been the cause of the injury in the circumstances of this dispute. He submits that Dr Khan is at pains to dispel other factors that might be the cause or have contributed to the hernias, but it is not clear from his opinion as to how he can discount these other factors.
Mr Stockley acknowledges that there should be caution when considering clinical records from a busy hospital, but the discharge summary reveals that neither the attending physician nor the applicant associated the pain which caused the applicant to attend hospital with what the applicant had been doing at work. He submits that the applicant’s evidence of events at work falls short of a finding that can be made that the hernias sustained by the worker were caused by his work with the respondent.
Determination
The available lay evidence confirms that the work which applicant undertook for the respondent was strenuous and involved heavy lifting. The applicant describes how he was required to lift and carry heavy machines. Although Mr Brown states that the machines which are used in his business are transported to sites on trailers and the trailers have a ramp and a pulley system for loading and unloading these machines, he also concedes that it is necessary on occasions for workers to lift and carry machines upstairs and that those machines weigh in excess of 100kg.
The history taken by Dr Khan that the applicant would from time to time lift a machine weighing between 100kg and 120kg to change pads and diamonds, and also to lift that machine up and down stairs where there were no lifts, is consistent with this lay evidence.
The decision of AV v AW [2020] NSWWCCPD 9 (AV v AW) addresses the requirements to satisfy s 4 (b)(ii) of the 1987 Act, but DP Snell provided a very helpful application of ‘main contributing factor’ as it appears in both sub-cls of s 4 (b), when he said at [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”.
In my view, Dr Khan has given consideration to the possible causal factors for the hernia injury sustained by the applicant. Dr Khan has considered other medical and anatomical factors in the aetiology and causation of inguinal hernias. He is also aware that the applicant attended hospital after he developed pains in his left side when moving a lounge in July 2021.
I agree with Mr McManamey that the opinion on causation from Dr Khan is well reasoned. I do not consider it necessary for Dr Khan to go through each and every factor he has referred to and provide an explanation as to why they do or do not apply to the applicant. As an expert, Dr Khan has considered those factors and concludes that they do not appear to have played a significant role in the development of the hernia injury except for the work which the applicant undertook which included episodes of heavy lifting. There is no other expert opinion which disputes the conclusion reached by Dr Khan. The opinion on causation by Dr Khan is reinforced by the opinion of Dr Mayanamada Poonacha.
The description by the applicant and Mr Brown of the work undertaken by the applicant for the respondent, and the opinions of Dr Khan and Dr Mayanamada Poonacha, and the absence of any contrary medical opinion, leads me to the conclusion that the heavy lifting undertaken by the applicant has been the main contributing factor to the onset of his bilateral hernia injury.
The conclusion which I have reached on the issue of causation is not altered by the lay and medical evidence relied upon by the respondent to cast doubt on the applicant’s claim.
Mr Brown states that James Hotson said to him on 19 or 20 July 2021 that the hernia sustained by the applicant was caused by the applicant wrestling on the previous Friday night. However, that evidence cannot be relied upon because Mr Brown has provided no more evidence in response to a statutory declaration made by Mr Hotson on 12 April 2022 that he has never said to Mr Brown at any time that the applicant had injured himself when wrestling.
Mr Brown has identified that the site where the applicant worked on 25 and 26 June 2021 at Blacksmiths does not have any stairs and he has provided photographs of work being done on that site on 25 June 2021 to confirm this. However, I accept that some leniency can be allowed for in the accuracy of the applicant’s evidence as to when the episode of lifting and carrying the heavy machine upstairs occurred. I would not expect the applicant to have had an exact recollection of the addresses of various sites he has worked at for the respondent and the dates when that work took place.
The applicant has subsequently provided photos of the apartment block at Cooks Hill where he states he felt a twinge in his lower abdomen when he was carrying a machine up some stairs. The applicant’s co-worker, Ross Bailey, confirms in a statement dated 9 November 2023 that he worked with the applicant for two days at an address at Cooks Hill. Mr Bailey does not state that the applicant complained of any abdomen pain while they worked at that address, but the applicant also does not state that he informed Mr Bailey of this. The applicant states that he did not report the incident to Mr Brown because he thought what he felt was insignificant.
I therefore do not consider this difference in evidence between Mr Brown and the applicant affects the veracity of the applicant’s claim. I otherwise agree with Mr McManamey that the issue of when and where this particular incident occurred is ultimately of little or no consequence because the medical evidence relied upon by the applicant, and which is not contested by any other expert, is that the hernia injury sustained by the applicant was due to the heavy lifting he undertook while employed with the respondent.
The respondent relies upon the discharge summary from Belmont Hospital to contend that neither the attending physician nor the applicant associated the pain which caused the applicant to attend hospital with what the applicant had been doing at work.
I agree with the response from Mr McManamey that the discovery of a hernia as an incidental finding reinforces a conclusion that the moving or lifting of the lounge, which is recorded in the discharge summary as producing pain on the applicant’s left loin side, was not a cause of the hernia injury, and that the cause of that injury, based upon the opinions of Dr Khan and Dr Mayanamada Poonacha, was the heavy lifting undertaken by the applicant while employed with the respondent.
There will be a finding that the applicant sustained a bilateral inguinal hernia injury in the course of his employment with the respondent. I have selected a deemed date of injury of 13 August 2021 because that is the date when the applicant states that he felt excruciating pain in his abdomen and he advised the respondent that his general practitioner had certified him fit for light duties. The applicant states that he was then informed that there were no light duties available and his employment with the respondent was terminated.
The claim for weekly payments of compensation
The applicant’s evidence
The applicant states that between September 2021 and November 2022 he consulted his general practitioner on a monthly basis to obtain certificates of capacity. He states that he was experiencing excruciating abdominal pain when he bent forward. He states that he noticed that the lumps were increasing in size, and he was unable to do lawn mowing or gardening.
The applicant states that he completed Year 10 at high school in 1987 and has always completed manual work. He states that he attained a dogman or rigger ticket in 1994 and an Occupational Health and Safety white card in 2000. He states: “I do not know how to use a computer and therefore heavy lifting is the extent of my skills”.
The applicant states that he underwent hernia repair surgery in November 2022 and was certified as being totally incapacitated for work until December 2022.
The weekly payments sought by the applicant ends on 26 February 2023 when Mr McManamey advises that the applicant had returned to work and was earning at least the same level of earnings as when he was employed by the respondent, although details of this new employment have not been disclosed by the applicant.
The medical evidence
There are Certificates of Capacity issued by Dr Mayanamada Poonacha for a period from 18 April 2022 to 31 October 2022 which certify the applicant as having capacity for some type of work for eight hours a day for five days per week with no lifting or carrying above 5kg and bending as tolerated, but sitting tolerance, standing tolerance and driving ability is “ok”.
There is a Certificate of Capacity issued by Dr Mayanamada Poonacha on 9 November 2022 which certifies that the applicant has no current work capacity from 1 November 2022 to 1 December 2022.
There is a Certificate of Capacity issued by Dr Mayanamada Poonacha on 25 November 2022 which reverts to the restrictions set out in the certificates before 1 November 2022.
Dr Mayanamada Poonacha issues a Certificate of Capacity on 23 December 2022 which certifies that the applicant is fit to return to pre-injury work.
In his report dated 5 May 2023, Dr Mayanamada Poonacha is asked about the applicant’s capacity to work from the date of the injury and replies: “Mr Meiners was in pain and was unable to work”.
Dr Khan opines in his report following a consultation on 28 July 2022 that the applicant is likely to remain partially incapacitated until he undergoes surgery. Dr Khan does not set out any details of that partial incapacity for work. He does write that the hernia injury “is affecting his ability to return to his pre-injury occupation which is mainly heavy manual work”.
A summary of the submissions from the parties
Mr McManamey submits that having regard to the applicant leaving school at Year 10 and only doing manual work all of his working life, there were no real jobs which he could do while he waited for his surgery.
Mr McManamey submits that the respondent has not provided any evidence of what employment the applicant might have been suited for while he waited for his surgery.
Mr Stockley acknowledges that many non-physical jobs now require computer skills but there are still physical jobs which the applicant could have performed within the restrictions set out in the Certificates of Capacity. Mr Stockley nominates the jobs of a bar useful, traffic controller and ticket collector as being jobs which exist, and which could have been performed by the applicant.
Determination
“Current work capacity” and “no current work capacity” are set out in cl 9 of Schedule 3 of the 1987 Act as follows:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”
Section 32A of the 1987 Act includes a definition of “suitable employment” as:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
The medical evidence which might assist in determining whether the applicant can work in suitable employment is sparse. The only assistance really comes from the Certificates of Capacity from Dr Mayanamada Poonacha who consistently certifies the applicant as having capacity for some type of work for 40 hours per week, with restrictions limited to no lifting or pushing over 5kg, and bending and twisting as tolerated, except for the month following the repair surgery on 1 November 2022.
No assistance is provided by Dr Khan who merely opines that the applicant is partially incapacitated for work but does not provide any details of what restrictions that he would place on the applicant’s capacity for work.
There is no medical evidence which suggests that the applicant should work with restrictions for less than a full working week, such as 20 hours per week, to avoid exacerbating his condition while waiting for surgery.
The applicant does not provide any evidence of whether he applied for any jobs in the 15 months leading up to his surgery notwithstanding the certificates issued by Dr Mayanamada Poonacha which allowed for a wide range of work activities which the applicant could engage in.
However, the issue to determine is whether the applicant was able to work in suitable employment between August 2021 and October 2022.
In Wollongong Nursing Home v Dewar [2014] NSWWCCPD 55 (Dewar), DP Roche considered the application of the term ‘suitable employment’ and said at [58]:
“‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’”.
Deputy President Roche then said at [63]:
“…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’.”
The applicant does not provide any evidence of his employment prior to working with the respondent from November 2019, except for working for about four months with the respondent between October 2011 and February 2012. Dr Khan records that the applicant worked for different employers as a trades assistant and then as a dogman and rigger and at various power stations.
Despite the limited information regarding the applicant’s past employment history, I do not consider that given that the applicant left school at Year 10 some 36 years ago, and has only ever worked in manual jobs, that he could have performed even menial clerical duties between August 2021 and October 2022.
I also accept from the nature of the injury sustained by the applicant and the opinions of Dr Mayanamada Poonacha and Dr Khan that the applicant could not have worked in jobs which involved heavy or moderately heavy lifting.
However, I consider that there were real jobs which the applicant could have performed within the restrictions set out by Dr Mayanamada Poonacha in the Certificates of Capacity which he issued for the applicant.
There is the job of a parcel courier or pathology collection courier. Such jobs involve the lifting and carrying of only light objects and some limited bending to lift light parcels or pathology samples, and to get in and out of a motor vehicle. The Certificates of Capacity state that sitting tolerance, standing tolerance and driving ability for the applicant are “ok”.
There is the job of a meter reader. That job does not usually involve lifting. There would be some bending to read meters but that would be interposed by walking or driving between meters and would therefore fit within the restriction in the Certificates of Capacity of bending “as tolerated”. The standing required for the job is within the “ok” tolerance set out in the Certificates of Capacity.
I would agree with the suggestion made by Mr Stockley of the suitability of the job of a bar useful who collects glasses and plates in a hotel and bar. That job only involves light lifting, and this job also involves standing which is within the “ok” tolerance set out in the Certificates of Capacity.
It was said in Dewar that “suitable employment” must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s “inability arising from an injury”. Having matched the restrictions set out in the Certificates of Capacity to the real jobs which I have referred to, and with there being no other guidance than what is set out in the Certificates of Capacity, I conclude that the applicant was suited to the full time jobs of a parcel courier, pathology collection courier, meter reader and bar useful between August 2021 and October 2022.
In Husnain Pty Ltd v Workers Compensation Nominal Insurer (icare) & Another [2023] NSWPICPD 65 (Husnain), DP Snell said at [86]:
“The Senior Member was under no compulsion to simply accept that the suggested roles constituted ‘suitable employment’. Consistent with the passages from South Australian Fire and Pikus quoted above, it was necessary that she, as the tribunal of fact, use her knowledge and experience to weigh up the whole of the evidence to determine this factual issue.”
With the limited evidence which has been made available on the issue of the applicant’s capacity for work, and using knowledge and experience to weigh up such limited evidence, I am satisfied that the applicant was suited to the full time jobs of a parcel courier, pathology collection courier, meter reader and bar useful between August 2021 and October 2022.
The minimum award rates for those jobs as at 14 August 2021 were:
Position Award Level Minimum weekly
rateBar useful Restaurant Industry Award 1 $794.80 Meter reader Gas Industry Award 2 $832.30 Parcel courier Road Transport & Distribution Award 2 $838.90 Pathology courier Health Professionals & Support Award 2 $855.90
The average of those award rates is around $830 per week and I therefore find that the applicant had the ability to earn $830 per week in suitable employment between 14 August 2021 and 30 June 2022.
The minimum award rates for those jobs from 1 July 2022 were:
Position Award Level Minimum weekly
rateBar useful Restaurant Industry Award 1 $834.80 Meter reader Gas Industry Award 2 $872.50 Parcel courier Road Transport & Distribution Award 2 $878.90 Pathology courier Health Professionals & Support Award 2 $895.90
The average of those award rates is around $870 per week and I therefore find that the applicant had the ability to earn $80 per week in suitable employment from 1 July 2022.
The parties were not able to reach an agreement on the applicant’s PIAWE. The applicant has set out a calculation for PIAWE, but there are two issues which concern me in regard to that calculation.
Firstly, the calculation is based on a period of 52 weeks prior to 14 July 2021, but I could find no evidence to support this date as being when the applicant became incapacitated due to his injury.
The applicant states that Dr Mayanamada Poonacha wrote out a Certificate of Capacity on 21 July 2021 advising that the applicant should be able to perform light duties, but I could not locate a certificate of that date in the material before the Commission and the notes made by Dr Mayanamada Poonacha on 21 July 2021 and 4 August 2021 make no reference to a certificate being provided to the applicant.
Furthermore, Mr Brown does not state that he received a certificate from the applicant at or around 21 July 2021, and that his records show that the applicant worked from 9 to 13 August 2021 inclusive.
From my review of the evidence, the first date of incapacity is 13 August 2021, which is the date when the applicant states that he experienced excruciating abdominal pain while at work and advised the respondent that his general practitioner had certified him fit for light duties, and was then informed that there were no light duties available and his employment with the respondent was terminated. The period for the calculation of PIAWE should be the 52 weeks referred to in for by cl 3 of Schedule 3 of the 1987 Act, being from 14 August 2020 to 13 August 2021.
Secondly, the calculation made by the applicant is based upon 51 weeks of work performed by him. However, from my perusal of the wages material attached to the Application to Admit Late Documents filed on 15 November 2023, there were 10 weeks in the relevant 52 week earning period when the applicant was not paid wages for work performed for the respondent – being the weeks ending 11 November 2020, 18 November 2020, 25 November 2020, 30 December 2020, 6 January 2021, 28 April 2021, 5 May 2021, 26 May 2021, 28 July 2021 and 4 August 2021. Those 10 weeks should be excluded from the calculation of PIAWE as provided for by Regulation 8E of the Workers Compensation Regulation 2016 due to being periods of ‘unpaid leave’.
On my calculations, the earnings of the applicant for 42 weeks up until the deemed date of injury of 13 August 2021 total $44,141.48, which is an average of $1,051 per week. I find the applicant’s PIAWE to be $1,051. The applicant is entitled to indexation of PIAWE as provided for by s 82A of the 1987 Act.
The awards of weekly compensation to be made in favour of the applicant are calculated as follows:
Period PIAWE (indexed) PIAWE (% for award) Ability to earn Award
13/8/21-12/11/21 $1,051 $998.50 $830 $168.50
13/11/21-31/3/22 $1,063.50 $850.80 $830 $20.80
1/4/22-30/6/22 $1,083 $866.40 $830 $36.40
1/7/22-30/9/22 $1,083 $866.40 $870 Nil
1/10/22-31/10/22 $1,119.50 $895.60 $870 $25.60
1/11/22-1/12/22 $1,119.50 $895.60 Nil $895.60
2/12/22-22/12/22 $1,119.50 $895.60 $870 $25.60
The claim for medical expenses
There will be an order that the respondent is to pay the applicant’s costs of reasonably necessary medical treatment for the bilateral inguinal hernia injury sustained by the applicant, including the costs of the surgery performed by Dr Wright on 1 November 2022.
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