Nguyen v Rheem Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nguyen v Rheem Australia Pty Ltd [2023] NSWPIC 613
APPLICANT:	Van Tac Nguyen
RESPONDENT:	Rheem Australia Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	15 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and medical expenses for injury to the lumbar spine; when weekly payments of compensation are to commence having regard to the evidence and the application of sections 4 and 16; reference to Kennedy Cleaning Services P/L v Petkoska and Australian Conveyor Engineering P/L v Mecha; whether the effects of the injury have continued; the extent of the worker’s capacity for work; reference to Wollongong Nursing Home P/L v Dewar and Popal v Myer Holdings P/L; Held – the effects of the injury to the lumbar spine have continued; the worker was partially incapacitated for work while he remained employed by the respondent; the worker has had no current work capacity since the termination of his employment by the respondent; award of weekly payments of compensation and the payment of medical expenses for treatment of the injury to the lumbar spine.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his lumbar spine in the course of his employment with the respondent on 21 September or 22 September 2020. 2. The applicant continues to suffer the effects of the injury to his lumbar spine which was sustained in the course of his employment with the respondent on 21 September or 22 September 2020. 3. The applicant had a partial incapacity for work between 28 July 2022 to 8 December 2022 and is to be paid weekly payments of compensation pursuant to s 37 of the Workers Compensation Act 1987. 4. The applicant has had no current work capacity since 9 December 2022 as defined in cl 9 (2) of Schedule 3 of the Workers Compensation Act 1987 and is to be paid weekly payments of compensation pursuant to s 37 (3) of the Workers Compensation Act 1987 until the end of the second entitlement period and thereafter pursuant to s 38 (2) of Workers Compensation Act 1987. The Commission orders: 5. The respondent is to pay the applicant weekly payments of compensation as follows: (a) $524.50 per week from 28 July 2022 to 1 August 2022; (b) $740.50 per week from 2 August 2022 to 19 September 2022; (c) $524.50 per week from 20 September 2022 to 26 September 2022; (d) $740.50 per week from 27 September 2022 to 3 October 2022; (e) $750 per week from 4 October 2022 to 17 October 2022; (f) $532.50 per week from 18 October 2022 to 24 October 2022; (g) $750 per week from 25 October 2022 to 31 October 2022; (h) $532.50 per week from 1 November 2022 to 7 November 2022; (i) $750 per week from 8 November 2022 to 21 November 2022; (j) $532.50 per week from 22 November 2022 to 28 November 2022; (k) $750 per week from 29 November 2022 to 8 December 2022; (l) $1,160 per week from 9 December 2022 to 31 March 2023; (m) $1,184 per week from 1 April 2023 to 30 September 2023, and (n) $1,200 per week from 1 October 2023 to date and continuing. 6. The respondent is to pay the applicant’s costs of reasonably necessary medical treatment for the injury to his lumbar spine.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Van Tac Nguyen, claims that he sustained an injury to his lumbar spine and right leg due to the nature and conditions of his employment a machine operator with the respondent, Rheem Australia Pty Ltd.
The applicant claims that the injury he sustained to his lumbar spine and right leg fits the definition of a disease injury pursuant to s 4 (b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) whereby his employment with the respondent has been the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease affecting his lumbar spine and right leg.
The applicant nominates the deemed date of injury as 22 September 2020, being the first date that he was incapacitated for work as a result of this injury.
The respondent accepted that the applicant sustained an injury to his lower back on 22 September 2020 and paid weekly benefits of compensation for periods of total and partial incapacity for a period of 94 weeks until 28 July 2022.
A dispute notice was issued by Allianz on behalf the respondent on 9 June 2022 wherein it was stated that weekly payments of compensation would end from 28 July 2022 because the aggravation of the pre-existing degenerative disease in the lumbar spine that was caused by work had now ceased.
The applicant continued to work for the respondent on suitable duties and usually for 18 hours per week until his employment with the respondent was terminated on 30 November 2022 on the grounds that the applicant could not return to his pre-injury duties and there was no alternative role available for him.
The applicant contends that the weekly payments of compensation made to him were based upon the respondent accepting that he had sustained a frank injury to his lower back on 22 September 2020. He contends that because his claim is now made as a disease injury, as opposed to a frank injury, then no weekly payments of compensation have been made to him for this disease injury claim and payments should be made to him pursuant to ss 36 and 37 of the 1987 Act. However, the claim for weekly payments made by the applicant is not from the date of incapacity (being 22 September 2020) but from the date when weekly payments of compensation ceased (being 28 July 2022).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
a.     the nature of the injury sustained by the applicant on 22 September 2020 (s 4 of the 1987 Act);
b.     whether the applicant continues to suffer the effects of the injury to his lumbar spine and right leg as a result of the injury sustained on 22 September 2020;
c.     the extent of any incapacity suffered by the applicant as a result of an injury sustained on 16 October 2020 (ss 32A, 33, 36, 37 and 38 of the 1987 Act), and
d.     whether the applicant is entitled to the payment of reasonably necessary medical expenses as a result of the injury sustained on 22 September 2020 (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 11 October 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.
Ms Warren appeared for the applicant, instructed by Mr Lam. Mr Baker appeared for the respondent, instructed by Mr Vrettos.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,381.20.
The claim of an allegation of injury to the neck was discontinued.
The claim for the cost of proposed surgery to the lumbar spine was discontinued.
The hearing could not be completed on 11 October 2023. Mr Baker made submissions on behalf of the respondent and the following timetable was set for completion of the hearing:
i.the applicant to file and serve written submissions by 25 October 2023, and
ii.the respondent to file and serve any written submissions in reply by 1 November 2023.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Wages schedule filed by the applicant on 8 August 2023;
(d)    Application to Admit Late Documents filed by the applicant on 11 August 2023;
(e)    Application to Admit Late Documents filed by the respondent on 1 September 2023;
(f)    Application to Admit Late Documents filed by the applicant on 29 September 2023;
(g)    Written submissions filed by the applicant on 25 October 2023, and
(h)    Written submissions filed by the respondent on 1 November 2023.

Oral evidence

There was no application to adduce oral evidence or to cross examine the applicant.

FINDINGS AND REASONS

The nature of the injury sustained by the applicant on 22 September 2020 and the payment of weekly benefits of compensation which are a result of this injury

The applicant’s evidence

The applicant has provided statements dated 16 March 2023 and 4 September 2023.
The applicant states that he commenced employment as a machine operator with the respondent in 2009. He describes a variety of work duties:
(a)    constructing hot water systems which included lifting hot water jackets which weighed between 7 and 20 kilograms;
(b)    putting parts into a hot water jacket which required a lot of lifting and bending;
(c)    lifting hot water jackets about 100 times each day and which involved lifting and twisting with his back;
(d)    pushing trolleys laden with heavy panels, and
(e)    lifting heavy pieces of cardboard over his head to cover the hot water jackets.
The applicant states a lifting aid was introduced but the hot water systems still needed to be manually lifted and turned upside down.
The applicant states that he began to experience lower back pain and pain going down his right leg for about a week before 21 September 2020. He states that the pain became gradually worse, and he reported this on 21 September 2020. He states that the onset of pain was not from one particular lift.
The applicant states that he consulted his general practitioner, Dr An, and was certified fit for light duties but there was pressure from the respondent for him to be certified fit for normal work.
The applicant states that his work hours were reduced to 18 hours a week for about five months, and he was only paid for the hours that he worked from June 2022. He states that his employment with the respondent was terminated in November 2022.
The applicant completed a claim form on 29 September 2020 wherein he nominated the injury date as 22 September 2020 and the task which he was doing when he was injured was: “Working with Tony, and turning a large metal jacket”.

The medical evidence

There are no clinical records in evidence from Dr An, who was the general practitioner whom the applicant sought treatment from after the onset of lower back pain in September 2020.
There is a medical report from Dr Sun, rehabilitation and pain physician, dated 3 November 2020 which records that the applicant “was injured on 21 September 2020 lifting a metal filler jacket at work”.
There is a report from Luke Bowen, exercise physiologist, dated 24 March 2021 which records that the applicant “recalls lifting heavy sheets of metal on 21/9/20 and feeling a sharp pain in the right buttocks”.
The first report from another general practitioner, Dr Lim, dated 13 May 2021 records that the applicant suffered back and buttock injuries on 21 September 2021 after lifting heavy material. Dr Liam also writes that the applicant worked as a sheet metal worker and “it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks”.
The first report from Dr Khong, neurosurgeon, dated 16 June 2021 records an injury on “21/9/10” when “lifting and turning cylinders when he suddenly experienced right sided buttock pain”.
Dr Giblin, orthopaedic surgeon, has provided a report at the request of the applicant’s lawyers dated 14 December 2022. Dr Giblin records a history of the applicant carrying 500 to 600 metal panels a day and making hot water jackets. Dr Giblin also records that the applicant “twisted at work and developed acute pain in his right lower back” on 22 September 2020.
Dr Giblin opines:
“It is my opinion this gentleman’s injuries are consistent with the accident described, he has an aggravation of underlying degenerative change of his lumbar spine. The spondylolisthesis is a genetic condition and does not relate to his work. His work however, has been heavy over the years and may have hastened the degenerative changes that would otherwise have not occurred had his job been lighter”.
Dr Giblin also opines that it is unlikely that the applicant would have experienced the problems that he now has with his lower back at this stage of his life if he had not been doing the work for the respondent and that “it is due to the nature and conditions of the applicant’s employment and the accident described that he is currently having these symptoms”.
Dr Casikar, neurosurgeon, has provided a report at the request of the respondent dated 31 May 2022. Dr Casikar records the applicant was dealing with a hot water jacket or heater on 22 September 2020 when he turned his back and developed severe pain in the right hip.
Dr Casikar diagnoses the applicant as having degenerative disease in the lumbar spine which appears to have been aggravated by the incident at work on 22 September 2020. Dr Casikar opines that the aggravation has now ceased, and the applicant’s current symptoms are mainly related to the pre-existing degenerative disease.

Determination

Ms Warren on behalf of the applicant submits that the applicant has a claim as a result of the nature and conditions of his employment which is separate and distinct from a frank injury sustained by the applicant on 21 or 22 September 2020 and which has been the subject of the payment of weekly benefits of compensation by the respondent in the past. The applicant nominates the deemed date for a disease injury to be 22 September 2020, being the first date of the applicant’s incapacity for work, although the claim for weekly payments or compensation only starts from 26 July 2022.
The respondent submits that there is only one claim that is available to the applicant both as to injury and the weekly payments of compensation claimed by the applicant. Furthermore, any finding of a separate entitlement to weekly payments of compensation would result in over compensation to the applicant.
Section 4 of the 1987 Act provides as follows:
“In this Act:
Injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment 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 submissions made on behalf of the applicant reveal a misunderstanding of the definition and application of the term ‘injury’ and ‘personal injury’ in s 4 of the 1987 Act.
A frank injury and a disease injury are not mutually exclusive. The definition of ‘injury’ in s 4 includes a disease injury. Deputy President Roche said in NSW Police Force v Gurnhill [2014] NSWWCCPD 12 (Gurnhill) at [73]:
“Whether a worker has suffered a physiological effect that satisfies the test for a personal injury in s 4(a) will depend on the nature and severity of his or her symptoms. However, the terms ‘disease’ and ‘personal injury’ in s 4 are not mutually exclusive (Zickar) and the difference will not usually be of critical importance”.
Deputy President Roche then referred to what was said by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska[2000] HCA 45; 200 CLR 286 (Petkoska) at [40]:
“The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense’.”
The applicant sustained an injury to his lower back on 21 or 22 September 2022 while in the course of his employment with the respondent. Allianz on behalf of the respondent stated in a dispute notice dated 9 June 2022 that it accepted liability for this injury on 15 April 2021.
The disease provisions as stated in Petkoska are “alternative and additional heads of entitlement” if the evidence does not establish that a worker experienced a sudden physiological change or disturbance. Irrespective of whether the applicant’s symptoms were due to a frank incident or due to a disease process, his incapacity for work occurred on that day. His entitlements to weekly payments of compensation and medical expenses accrue from the injury which he sustained to his lower back on that day.
Furthermore, the aggravation of a degenerative condition by the work being undertaken by worker does not mean that this is exclusively defined by s 4 (b)(ii). It is well recognised that a degenerative but asymptomatic condition which is rendered symptomatic by an incident or event at work can fit the definition of ‘injury’ in s 4 (a) of the 1987 Act. In Australian Conveyor Engineering Pty Ltd v Mecha [1998] NSWCC 51; 17 NSWCCR 309; 45 NSWLR 606 (Mecha), Powell J discussed the legislative history of s 4 of the 1987 Act and the High Court decision of Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 (Zickar) and said at [39]-[42]:
“The effect of the decision of the majority is, thus, first, that, if there can be identified an incident which involves--either by being itself the change, or by bringing about the change--a physical change in the worker, then--even though that change may be no more than the culmination of a progressive disease, and not the product of some external force--that damage is to be regarded as an ‘injury’ within the meaning of par (a) of the definition of ‘injury’ in s 4 of the Act
...
In the present case, the medical evidence which was before the trial Judge was sufficient to demonstrate that, even before the fall which he sustained on 11 February 1992, the worker’s lumbo-sacral spine had begun to degenerate. ... This notwithstanding, the evidence of the worker, which was accepted by the trial Judge, was that, prior to the fall, his back condition was asymptomatic.
The worker’s evidence, which was supported by that of his general practitioner, was that, following his fall, he began to suffer pain in his back and neck, which pain grew worse and led to his ceasing work for a period.
...
There thus having been an identifiable incident, which incident appears to have caused, at least, ligamentous injury to the lumbar spine segment, the sequelae of which involved pain, which was, for a time disabling, and which, in any event, has continued over the years, the decision of the majority in Zickar v MGH Plastic Industries Pty Ltd would seem to dictate that, even if it be the fact that the result of the incident was merely that the worker’s pre-existing back condition was rendered symptomatic, he was nonetheless to be regarded as having sustained an injury within the meaning of par (a) of the definition of ‘injury’.”
Ms Warren asks that caution be exercised when approaching clinical records from treating doctors given that their primary concern and focus is with treatment. I am also mindful that the applicant has limited English. However, Dr Sun, Mr Bowen, Dr Lim and Dr Khong all record the onset of lower back pain when lifting at work on 21 September 2020. It is difficult to conclude, and I do not accept, that all of those practitioners would have made an error in the details they recorded from the applicant.
There is also no medical practitioner who records that the applicant was experiencing symptoms in his lower back in the weeks and months leading up to 21 September 2020, which might support a finding that the applicant suffered a disease injury which is quite separate and distinct from the onset of symptoms he experienced on 21 September 2020. Even the applicant’s own evidence is that he experienced low back pain for only a week before he made a report of an injury at work on 21 September 2020.

Finally, there is an inherent contradiction in the submissions made by the applicant that the deemed date of injury is 22 September 2020 for a disease injury but the claim for weekly payments of compensation only commences almost two years later in July 2022.
Section 16 (1)(a)(i) of the 1987 Act deems the date for a disease injury to have happened at the time of the worker’s incapacity. The applicant does not state that he ceased work following the pain he experienced in his lower back on 21 September 2020, but there are Certificates of Capacity which certified the applicant as having no current work capacity from 6 October 2020 to 11 December 2020. There is no list of payments in evidence, but the insurer of the respondent has paid the applicant for 94 weeks, presumably being for a mixture of periods of total and partial incapacity for work. The applicant’s pay details which are attached to the Application to Admit Late Documents filed by the applicant on 11 August 2023 record that workers compensation payments were made to the applicant from 5October 2020.
Both the first entitlement period and the second entitlement period for the payment of weekly payments of compensation pursuant to sections 36 and 37 respectively are “in respect of which a weekly payment is paid or payable” to a worker. The worker does not get to choose when those weekly payments of compensation are made. Those payments are payable upon accepted evidence of incapacity.
There is no basis for the claim made by the applicant that s 36 and then s 37 are to operate from 26 July 2022 when the available evidence reveals that the applicant’s incapacity commenced on or about 21 September 2022.
The applicant has no entitlement to weekly payments of compensation from 26 July 2022 pursuant to s 36 and then s 37 of the 1987 Act as claimed by the applicant.

Whether the applicant continues to suffer the effects of the injury to his lumbar spine and right leg

The applicant’s evidence

The applicant states that he has pain to the lower back and pain going down to his right buttock and down his right leg.

The medical evidence

The applicant attended Dr Khong on at least eight occasions between 16 June 2021 and 3 May 2022.
Dr Khong records on 15 October 2021: “pain manageable” if the applicant is at home and not working. Dr Khong also records that the applicant gets lower back pain and numbness in both legs if sitting and leaning for a long time when he is at work.
Dr Khong records on 18 February 2022 that the applicant has increasing lower back pain, which is “almost intolerable”.
Dr Khong records on 3 May 2022 that the applicant continues to complain of lower back pain and bilateral leg numbness when sitting. Dr Khong also records that he found on examination a normal gait, normal sensation of both lower limbs, no pain on internal rotation of the hips, but there was focal tenderness of the right buttock.
Dr Khong has recommended a L5/S1 laminectomy and fusion, although the claim for the cost of that surgery to be met by the respondent is not being pursued in these proceedings.
Dr Giblin records in his report dated 14 December 2022 that he found pain on extension of the applicant’s spine, although the applicant was able to forward flex to the floor.
Dr Giblin opines with regard to the applicant:
“He had this constitutional degenerative condition before the onset of his accident and pain and it has only been since the accident that his pain has persisted, hence it follows that the aggravation has not ceased”.
Dr Casikar found the applicant could flex his back up to 40 degrees when an examination was conducted in May 2022.
Dr Casikar opines that the aggravation of the applicant’s degenerative disease has now ceased, and the applicant’s current symptoms are mainly related to the pre-existing degenerative disease. Dr Casikar does, however, attribute 20% of the applicant’s current symptoms to the applicant’s employment with the respondent.

Determination

There is not much by way of detail in the reports from Dr Khong of that doctor’s own findings on examination of the applicant. The reports mainly record the complaints made by the applicant over an almost 12 month period of consultations which the applicant had with Dr Khong.
Nonetheless, it would appear that Dr Khong regards those ongoing complaints as serious enough to warrant major surgery.
Dr Giblin is satisfied from his examination of the applicant that the effects of the injury sustained by the applicant in September 2022, being the aggravation of underlying degenerative changes in the lumbar spine, have persisted and not ceased.
I prefer the opinion of Dr Giblin when that is added to the records made by Dr Khong between June 2021 and May 2022 of persistent lower back pain.
I prefer the opinion of Dr Giblin over the opinion of Dr Casikar because Dr Casikar does not provide an explanation as to why the effects of the aggravation from the applicant’s employment have now ceased when the applicant has consistently complained of aching pain in the lower back since September 2022.
Furthermore, there is some inconsistency in the opinion provided by Dr Casikar wherein he opines that the aggravation of the applicant’s degenerative disease has now ceased, but also opines that the applicant’s employment has contributed 20% to the applicant’s “present lumbar symptoms”.
I am therefore satisfied that the effects of the injury sustained by the applicant to his lumbar spine in September 2020 have continued since payments of compensation were terminated in July 2022.
I should add that there appears to be no medical evidence supporting an injury to the right leg. Dr Sun records the applicant having persistent right hip and buttock pain, but he makes no diagnosis of any condition affecting the right leg. Dr Khong also records the applicant having persistent right buttock pain, but he makes no diagnosis affecting the right leg.
Dr Giblin identifies an injury only to the lumbar spine. Dr Casikar records that the applicant developed severe pain in his right hip on 22 September 2020, but Dr Casikar’s diagnosis is limited to degenerative disease of the lumbar spine which has been aggravated in the workplace.

The claim for weekly payments of compensation

The applicant’s evidence

The applicant states that he migrated to Australia from Vietnam in 1984 when he was 18 years of age. He states that he worked in three manufacturing jobs in Sydney before he commenced employment with the respondent in 2009. One of those jobs with Stylus Taps included operating robots through a computer for spray painting and working as a forklift driver.
The applicant provides details of the work he did for the respondent after he was placed on light duties in his second statement dated 4 September 2023.
The applicant states that for about four or five months he undertook a task of welding handles into a jacket for a machine. He states that he would then put the jackets onto a trolley and then push the trolley to the workstation, although there was an increase of pain in his back when he pushed the trolley. He states that he worked at his own pace and did not have to meet any quota, whereas he had to meet quotas before his injury.
The applicant states that for about 18 months he undertook a task of using an air gun to put screws into an auto-start unit for hot water systems. He states that he held the air gun with his hands and pushed a screw into the auto-start switch. He states that he performed this task while sitting down and he would stand up and do this job when he started to get pain and pins and needles from sitting down. The applicant states that he usually did this work for six hours a day for three days per week, although sometimes this was restricted to 12 hours on the instruction of his doctor.
The applicant states that he undertook a job of packing screws and other metals into plastic bags for only two days, but he was then transferred to work on another line. He states that there was another injured employee, Paulo, who was given this job sometime after the applicant was injured.
The applicant was given notice of the termination of his employment by the respondent in a letter dated 8 December 2022. In that letter there is reference to meetings conducted with the applicant on 10 November 2022 and 30 November 2022 wherein the applicant asked if there were jobs available at the Burner Table, Kit Cell and Wiring Cell, Baffles and Domes, and as a forklift operator. It is stated in that letter that the respondent did not currently have any positions available that would be suitable for the applicant and that a new part time position would have to be created. The letter states: “we have made the decision to terminate your employment due to your inability to perform the inherent requirements of your position”.

The medical evidence

There were twelve Return to Work Plans issued by MP Safety Management from 12 February 2021 to 20 October 2021 which set out plans for the applicant to work with the respondent within restrictions set out in Certificates of Capacity provided by Dr An during that same period of time.
Dr Dalton, specialist in rehabilitation medicine, provides a report to MP Safety Management dated 14 July 2021, following a zoom conference with the applicant. Dr Dalton opines that the applicant can increase his hours of work to four hours per day for three days of the week as certified by Dr Lim to four hours per day for five days per week.
Dr Mo issued Certificates of Capacity from 14 February 2022 to 15 August 2022 which certified the applicant as being fit for six hours of work per day for three alternate days per week with a restriction to 5 kilograms of non-repetitive lifting, sitting for 30 minutes and the avoidance of bending and twisting.
Dr Khong records in a report dated 10 December 2021 that the applicant is working six hours per day for three days per week on light duties with movement restrictions.
Dr Giblin opines in December 2022 that the applicant has been unfit for his pre-injury employment since the date of his injury and into the future. He notes that the applicant’s job has always been heavy labouring and does not consider that the applicant is suited for work for which he is suitably qualified by education, training or experience.
Dr Casikar considers that the applicant can undertake his pre-injury duties in normal hours, but with a lifting limit of 10 kilograms. He opines that this restriction is mainly based upon the applicant’s pre-existing degenerative disease.

Determination

Ms Warren submits that the respondent terminated the applicant’s employment on the basis that he was unable to fulfil the inherent requirements of his role and that there were no real roles available to place him in. She submits that the applicant may have had capacity for specialised suitable duties with the respondent, but he had no capacity for suitable employment once his employment with the respondent was terminated.
Ms Warren submits that the work provided by the respondent to the applicant after he was injured was not a ‘real job’ and relies upon what was said by DP Roche in Wollongong Nursing Home Pty Limited v Dewar [2014] NSWWCCPD 55 (Dewar) at [59]:
“…In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited”.
Mr Baker for the respondent submits that there are jobs of a similar nature in other factories to those jobs that the applicant was able to perform with the respondent after he was injured. He also submits that the applicant could undertake work as a forklift driver or in cleaning or in packing work, at least on a part time basis. He submits that the applicant could work in a shop where Vietnamese is the main language that is spoken and is used to conduct business.
“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.”
From my review of the evidence, the claim for weekly payments of compensation falls into three discrete periods:
(a)    from 28 July 2022 to 8 December 2022 when the applicant continued to work for the respondent but did not receive weekly payments of compensation;
(b)    from 9 December 2022 to 6 April 2023, which is the balance of the second entitlement period and a period during which the applicant did not work, and
(c)    drom 7 April 2023 onwards, when the applicant has not worked, but he can only receive weekly payments of compensation from 7 April 2023 if there is a finding that he has no current work capacity or he is a worker with high needs (s 38 of the 1987 Act).
The applicant’s pay details record that he worked for 18 hours each week between 28 July 2022 to 8 December 2022, except for the weeks ending 1 August 2022, 26 September 2022, 24 October 2022 and 7 November 2022 when he worked 12 hours per week, and the week ending 28 November 2022 when he worked eight hours during that week. The applicant’s earnings for working an 18 hour week were $627.50.
I have accepted that the applicant has continued to suffer the effects of the injury he sustained to his lower back. I accept that the restrictions set out by Dr Mo in Certificates of Capacity issued between February and August 2022 were reasonable having regard to the ongoing aching and pain which the applicant was experiencing in his lower back. Those restrictions struck a reasonable balance between the applicant being able to undertake some work which did not involve heavy lifting and repetitive lifting and bending, but also allowing him time to rest by having each alternate day off work.
I prefer the restrictions set by Dr Mo during this period of time over the opinion of Dr Dalton, even though it is only a difference of two hours per week. Dr Mo had the benefit of regularly reviewing the applicant over this period of time and was in the best position to gauge how the applicant was coping with the physical requirements of his work.
I therefore find that the applicant’s ability to earn in suitable employment for the period between 28 July 2022 to 8 December 2022 was $627.50 per week. The applicant will be entitled to an award of weekly payments based upon the difference between 95% of PIAWE (as indexed) and $672.50 as provided for by s 37 (2) of the 1987 Act, except for the five weeks when the applicant worked less than 15 hours per week when he will be compensated pursuant to s 37 (3). I am grateful to the applicant’s lawyers for making a calculation of indexed PIAWE. The award of weekly payments of compensation for this period will be:
(a)    $524.50 per week from 28 July 2022 to 1 August 2022;
(b)    $740.50 per week from 2 August 2022 to 19 September 2022;
(c)    $524.50 per week from 20 September 2022 to 26 September 2022;
(d)    $740.50 per week from 27 September 2022 to 3 October 2022;
(e)    $750 per week from 4 October 2022 to 17 October 2022;
(f)    $532.50 per week from 18 October 2022 to 24 October 2022;
(g)    $750 per week from 25 October 2022 to 31 October 2022;
(h)    $532.50 per week from 1 November 2022 to 7 November 2022;
(i)    $750 per week from 8 November 2022 to 21 November 2022;
(j)    $532.50 per week from 22 November 2022 to 28 November 2022, and
(k)    $750 per week from 29 November 2022 to 8 December 2022.
The applicant had his employment terminated by the respondent on 8 December 2022 and has not worked since then. The issue is whether the applicant has had no current work capacity since the termination of his employment or whether he has been able to return to work in suitable employment.
I accept that the applicant has difficulty communicating in the English language. The reports Dr Sun, Dr Dalton, Dr Giblin and Dr Casikar all record that their consultations were conducted with an interpreter. Mr Bowen observed that the applicant had difficulty speaking and understanding English.
The applicant has only worked in unskilled manufacturing jobs since arriving in Australia in 1984.
I therefore do not accept that the applicant could undertake even the most basic of clerical or administrative tasks, which might otherwise be suitable for a person who has ongoing pain and restriction of movement in his lower back. I do not agree with a submission made on behalf of the respondent that having an email address allows for an inference to be drawn that the applicant has some clerical and/or technological capacity for work without there being some further information for such an inference or conclusion to be made.
Nor does the applicant’s past work in one particular job over 15 years ago which involved the use of operating robots through a computer for spray painting allow me to conclude that he has certain computer skills that can be used in some suitable employment.
I also do not agree with the submission made by Mr Baker that the applicant could work in a shop or office where Vietnamese is the main language spoken because the applicant has no retail or clerical experience.
The jobs suggested by Mr Baker of packing and cleaning are also not suitable for the applicant to undertake, even on a part time basis, because such jobs involve repetitive bending and lifting. They are jobs which do not come within the restrictions set out by Dr Mo in Certificates of Capacity issued between February and August 2022 or the opinion from Dr Giblin that the applicant is unfit for his pre-injury employment, which did involve repetitive bending and lifting.
Mr Baker also suggested forklift driving. The applicant states that he did forklift driving with Stylus Taps. The correspondence from the respondent regarding the applicant’s termination of employment refers to the applicant enquiring as to whether there was work available as a “Forklift Operator”. However, there is not enough available evidence to conclude that the applicant has the requisite skills and qualifications for such work.
The work which the applicant might be suitable for is work similar to what he was doing while on restricted duties with the respondent during 2021 and 2022, being part time work on a process line. However, previous Presidential decisions have observed that caution needs to be exercised when considering whether “a made up job” can constitute ‘suitable employment’ (Popal v Myer Holdings Pty Ltd [2020] NSWWCCPD 32 (Popal) at [53]). Deputy President Snell said in Popal at [51]:
“The reference to ‘real jobs’ in the above passage needs to be read in light of the issues being argued in Dewar. The employer had supplied light work to the worker that consisted of a job that was made up for the purpose of supplying suitable duties. The employer argued this demonstrated an ability to perform ‘suitable employment’ for the purposes of s 32A, regardless of whether an employer exists who would provide that work. The Deputy President rejected the employer’s argument on this point; work that was ‘not real employment or work that was potentially available in the labour market at large’ was not ‘suitable employment’.”

Deputy President Snell also referred with approval to what was said by DP Wood in Westpac Banking Corporation v Mani [2019] NSWWCCPD 41 (Mani) at [177]:
“The Commission has identified in a number of cases that for the purposes of s 32A of the 1987 Act, ‘suitable employment’ encompasses the identification of an actual position that the injured worker could do, rather than a ‘light duty’ job that the employer created that is not a real job.”
The jobs which the applicant was given by the respondent do appear to have been part of a manufacturing process that was necessary for the respondent to complete some of its necessary functions. However, the correspondence regarding the applicant’s termination of employment states that the respondent did not currently have any positions available that would be suitable for the applicant and that a new part time position would have to be created.
There is no evidence from an appropriate officer from the respondent, such as a production manager, who could assist in the determination of whether the jobs which the applicant did following his injury were “made up” (Popal) and could be regarded as ‘suitable employment’. In the absence of such evidence, I consider it reasonable to infer from the applicant’s evidence of working at his own pace for at least one of those jobs and from the correspondence regarding the applicant’s termination of employment, that the jobs which the applicant did undertake at the direction of the respondent during 2021 and 2022 were not real jobs that were “potentially available in the labour market at large” (Dewar). Those jobs which the applicant did undertake for the respondent following his injury appear to fall within a category identified by DP Roche in Dewar at [60]:
“…Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
The Commission may as a specialist tribunal draw on its experience and knowledge to assist in determining what might be suitable jobs for a worker. For instance, in Husnain Pty Lyd v Workers Compensation Nominal Insurer (icare) & Another [2023] NSWPICPD 65 (Husnain), DP Snell referred to the Commission as a specialist tribunal and said at [92]:
“…It was, in my view, open to the Senior Member to draw on her experience in her role in understanding, in a general sense, the nature of the physical requirements of the duties of a checkout operator.”
However, in determining whether a worker is able to return to suitable employment there is a difference between an understanding of the general requirements of a job in an office or in a shop or store and the specific requirements of a job on a production line. There may be a job in a factory somewhere which is on a process line that does not involve heavy lifting and repetitive bending, and where the applicant can sit and stand to relieve the pain in his lower back, but I have not been provided with any evidence of this.
In the absence of such evidence, I am left to consider in a more general sense what jobs the applicant could do having regard to his ongoing lower back condition. I have had regard to the applicant’s limited education, lack of skills, and work experience which is restricted to unskilled manual work in factories. I have concluded that the jobs which the applicant undertook with the respondent after he was injured were “made up”. There is a lack of specific evidence of jobs which might be available in the labour market at large which would be similar to those jobs which the applicant did perform for the respondent after his injury. I find having considered these various matters that the applicant has had no current work capacity since 9 December 2022.
Such a finding is consistent with the opinion of Dr Giblin, who does not consider that the applicant is suited for work for which he is suitably qualified by education, training or experience, and whose opinion I have already accepted on the issue of whether the applicant continues to suffer the effects of the injury that he sustained to his lower back in September 2020.
Such a finding means that the applicant’s claim for weekly payments compensation does not end on 6 April 2023, but can continue pursuant to s 38 (2) of the 1987 Act, which provides that a worker is entitled to such payments after the second entitlement period if the worker has no current work capacity.
Eighty per cent of PIAWE (as indexed) as at 9 December 2022 amounts to $1,160. The following award of weekly payments of compensation will be made to the applicant in accordance with further indexation of PIAWE as provided for by s 82A of the 1987 Act:
(a) $1,160 per week from 9 December 2022 to 31 March 2023 pursuant to s 37 (3) of the 1987 Act;
(b) $1,184 per week from 1 April 2023 to 6 April 2023 pursuant to s 37 (3) of the 1987 Act;
(c) $1,184 per week from 7 April 2023 to 30 September 2023 pursuant to s 38 (2) of the 1987 Act, and
(d) $1,200 per week from 1 October 2023 to date and continuing pursuant to s 38 (2) of the 1987 Act.

The claim for medical expenses

There will also be an award that the respondent is to pay the applicant’s costs of reasonably necessary medical treatment for the injury to his lumbar spine.

[2023] NSWPIC 613

15 November 2023