Norford v Boral Resources (Country) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Norford v Boral Resources (Country) Pty Ltd [2022] NSWPIC 256
APPLICANT:	Gary Norford
RESPONDENT:	Boral Resources (Country) Pty Ltd
Member:	John Isaksen
DATE OF DECISION:	30 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments pursuant to section 38 of the Workers Compensation Act 1987 (1987 Act); with the worker claiming to have no current work capacity; also orders sought pursuant to section 60 (5) of the 1987 Act for physiotherapy, pain management treatment consultations with general practitioner; consideration of previous decision of Arbitrator Bell in March 2020, who found the worker to be totally incapacitated for work, subsequent expert evidence; Held– worker continues to have no current work capacity and entitled to weekly payments pursuant to section 38; order for the respondent to meet the cost of an assessment by physiotherapist and pain management clinic, and general order in regard to consultations with general practitioner.
determinations made:	1. The applicant has had no current work capacity since 7 April 2021 as a result of the injury he sustained to his right shoulder on 9 March 2018. 2. An assessment of the applicant by a physiotherapist and an assessment of the applicant by Lismore Base Hospital Multidisciplinary Pain Clinic are reasonably necessary medical expenses as a result of the injury the applicant sustained to his right shoulder.
orders made:	1. The respondent is to pay weekly benefits of compensation to the applicant pursuant to section 38 (2) of the Workers Compensation Act 1987 at the rate of $1,139.18 per week from 6 April 2021 to date and continuing. 2. The respondent is to pay for an assessment of the applicant by a physiotherapist and an assessment of the applicant by Lismore Base Hospital Multidisciplinary Pain Clinic pursuant to section 60 (5) of the Workers Compensation Act 1987. 3. The respondent is to pay the reasonably necessary medical expenses for the applicant’s attendances upon his general practitioner for treatment of the injury to his right shoulder.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Gary Norford, sustained an injury to his right shoulder on 9 March 2018 while employed as a truck driver with the respondent, Boral Resources (Country) Pty Ltd.
The respondent has accepted liability for this injury.
The applicant underwent the following operations to his right shoulder:
(a) an arthroscopic repair of the right shoulder performed by Dr Mison on 7 December 2018, and
(b) a manipulation under anaesthesia performed by Dr Mison on 11 September 2019 which was due to a frozen shoulder which the applicant developed following his first operation.
The applicant was paid weekly payments of compensation until 5 August 2019 because the respondent did not accept that the applicant was unfit for his pre-injury employment and that he had any further entitlements to weekly payments of compensation.
The applicant took that dispute to the Workers Compensation Commission (matter no. 6193/19) and on 5 March 2020 Arbitrator Bell gave an oral decision which included a determination that the respondent was to pay the applicant weekly payments of compensation at the rate of $1,139.18 per week pursuant to section 37 of the Workers Compensation Act 1987 (the 1987 Act) on the basis that the applicant was totally incapacitated for work. Arbitrator Bell also made an order that the respondent pay the applicant’s section 60 expenses.
The respondent issued a dispute notice in respect of a work capacity decision on 13 January 2021 wherein it decided that the applicant was not entitled to further weekly payments of compensation pursuant to section 38 of the 1987 Act because the applicant had not returned to at least 15 hours of work per week despite the applicant having a capacity to work in suitable employment. Weekly payments of compensation were to cease as of 6 April 2021.
The applicant disputes this decision and claims that he continues to have no current work capacity as a result of the injury he sustained on 9 March 2018.
The applicant also claims he has sustained conditions affecting his left shoulder and neck as a consequence of the injury to his right shoulder. The applicant also seeks an order pursuant to section 60 (5) of the 1987 Act that the respondent meet the cost of physiotherapy treatment recommended by his general practitioner, a pain management program recommended by Dr Scholz, and the costs of consultations with his general practitioner.
The respondent had issued a notice on 8 March 2021 disputing the need for further physiotherapy treatment. It was also stated in that notice: “This dispute will extend to all future medical expenses in general under Section 60”.
The respondent confirmed in a notice dated 30 November 2021 that there is no need for further physiotherapy treatment, but that it would consider a multi disciplinary pain management program if such a request was received. The respondent also stated in that notice that it did not accept the applicant had secondary chronic right sided cervical spine pain. The notice made no reference to the claim of a consequential condition affecting the left shoulder.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant is entitled to continue to receive weekly payments of compensation because he has no current work capacity (sections 32A, 33, 38 and Schedule 3 of the 1987 Act);
(b) whether the applicant has conditions affecting his left shoulder and neck as a consequence of the injury to his right shoulder, and
(c) whether an order can be made pursuant to section 60 (5) of the 1987 Act that the respondent is to meet the cost of proposed physiotherapy treatment, a pain management program and/or consultations with the applicant’s general practitioner (section 60 of the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The parties attended a conference and hearing on 7 April 2022. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Ms Grotte appeared for the applicant, instructed by Ms Harley. Mr Baker appeared for the respondent, instructed by Mr Dolan.
The hearing was conducted by telephone in accordance with protocols set by the Personal Injury Commission (the Commission) as a result of the coronavirus pandemic.
It was agreed that Mr Baker could be the first party to make submissions. Those submissions were only completed just after 5.00pm, and a timetable was set for the applicant to file and serve written submissions and for a response by the respondent.

Ms Grotte made a request for a transcript of the oral decision of Arbitrator Bell to be provided to the parties if the recording of that decision was still available. The transcript has been made available, and Ms Grotte has referred to parts of the decision in her submissions.
Ms Grotte seeks leave to have the transcript admitted into evidence. That was not opposed by the respondent.
The applicant’s pre-injury average weekly earnings (PIAWE) are agreed at $1,423.98, so that 80% of PIAWE for the purposes of section 38 (7) of the 1987 Act is $1,139.18.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the respondent on 29 March 2022;
(d)    Transcript of the oral decision given by Arbitrator Bell on 5 March 2020 (matter no. 6193/19);
(e)    Written submissions filed by the applicant on 6 May 2022, and
(f)    Written submissions in reply filed by the respondent on 17 May 2022.

Oral evidence

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

FINDINGS AND REASONS

Whether the applicant has no current work capacity and is entitled to receive weekly payments pursuant to section 38 (2) of the 1987 Act

The decision of Arbitrator Bell in matter no.6193/19

Arbitrator Bell reviewed a statement of the applicant, along with medical reports and clinical notes from the following:
(a)    Dr Proudfoot, who was the applicant’s initial general practitioner;
(b)    Dr Dalgliesh, the applicant’s current general practitioner;
(c)    Dr Mison, the applicant’s treating specialist;
(d)    Dr Kinny, independent medical expert qualified on behalf of the applicant, and
(e)    Dr Machart, independent medical expert qualified on behalf of the respondent.
Arbitrator Bell also reviewed surveillance footage, and a vocational assessment report which stated that the applicant could undertake the work of a delivery driver, earthmoving plant machine operator, or storeperson.
Arbitrator Bell said at T19, lines 20-26:
“The medical evidence I’ve summarised and paraphrased gives a clear picture of an unfortunately failed history of treatment for Mr Norford’s right shoulder. The sequence is of a frustrating series of promising treatment strategies followed by disappointment, the worst being the outcome of shoulder surgery by Dr Mison…He suffers from what can only be described as a chronic right arm condition.”
Arbitrator Bell then said at T25, lines 11-18:
“Taking all the opinions into account it seems to me that Mr Norford’s right arm is not usable in the work environment. I prefer the opinion of Dr Kinny supported by
Dr Dalgliesh and Dr Mison to the opinion of Dr Machart, to the extent Dr Machart does not support Mr Norford, because they take a practical approach to the pain associated with the right shoulder use rather than concentrating on the pathology and range of movement.”
In reaching his decision that the applicant was totally incapacitated for work, Arbitrator Bell said the following at T24, lines 1-7:
“What is not highlighted by the vocational assessor and some of the other medical opinions is the role of the constant pain suffered by Mr Norford. He’s on strong analgesics and loses sleep from the pain and the effect of this on his ability to work at all due to lack of sleep was not focussed on in the assessment.”

The applicant’s evidence

The applicant has provided statements dated 17 May 2021 and 2 August 2021 in response to this dispute.
The applicant states that he continues to experience significant discomfort in his right shoulder. He states that he does not have any real functional use of the shoulder, and that he cannot stretch the shoulder and has difficulty raising his hands above his head. He states that he wears a sling on his right shoulder to give him some relief.
The applicant states that his right shoulder pain is worse at night. He states that he has difficulty sleeping and that he sleeps three hours on a good night. He states that the lack of sleep combined with the pain in his shoulder means that he is always tired and that he gets in a very low mood at times.
The applicant states that he takes six tablets of Panadeine Forte throughout the day and Targin in the morning and at night.
The applicant states that he wears a sling for 80% of the time, and that he drives with a sling.
The applicant states that he now has pain in his left shoulder due to favouring his right side, as well as pain in the neck.
The applicant outlines his past work experience in a statement dated 25 September 2019. He states that in the 1990s he worked as a plasterer and then did explosive blasting work. He states that from 2006 to 2011 he returned to plastering work, but then went back to explosives work with Orica Explosives from 2011 to 2016. Mr Norford states that he moved to the far north coast on NSW in late 2016 and commenced work as a truck driver with the respondent in March 2017.

The expert evidence

Since the decision of Arbitrator Bell in March 2020, Dr Dalgliesh has continued to issue Certificates of Capacity certifying that the applicant has had no current work capacity as a result of a right rotator cuff injury. The certificates states that the applicant has no lifting or carrying capacity with his right arm, but sitting and standing is not affected and there is no issue with the applicant’s driving ability “depending on pain”. The certificates also refer to “persistent neck/shoulder and upper pain and stiffness with reduced mobility”.
The applicant attended Dr Stabler for a second opinion several days after the decision of Arbitrator Bell. In a report dated 16 March 2020, Dr Stabler writes that he found no evidence of muscle wasting of the right shoulder and that the applicant had voluntary inhibition of movement, presumably due to pain. Dr Stabler also found no evidence of adhesive capsulitis.
Dr Stabler writes that he had a discussion with the applicant regarding his pain. Dr Stabler writes that he cannot find any physical cause for the pain, but he also explained to the applicant that his pain is real and disabling, although it is nuisance pain. He writes:
“For the moment he simply has to work around the problem as best he can, but I have told him that he can use the right shoulder with confidence for light activities.
He does still seem to be very anxious about using the right shoulder, but I hope that
I have reassured him today that he will not come to any harm by doing that.”
Dr Porteous, occupational physician, has provided a report to the applicant’s solicitors dated 20 August 2021. He writes that the consultation for the report was conducted by video due to covid restrictions.
Dr Porteous records difficulties that the applicant is having with his right shoulder which are similar to what has been set out in the applicant’s evidence. Dr Porteous records that from mid-2019 the applicant began to get pain in his neck and left shoulder as he began to favour his right shoulder. Dr Porteous records the applicant having right shoulder and right sided neck pain which rates from a pain scale from 7/10 to 10/10, as well as left shoulder and left sided neck pain. He records a similar level of daily medication being consumed as has been set out in the applicant’s own evidence.
Dr Porteous writes that when he asked the applicant if he wanted to add any further information, the applicant said that he felt unsafe driving while using Panadeine Forte on a daily basis.
Dr Porteous concludes that the applicant sustained a soft tissue musculoligamentous sprain injury of the right shoulder, and he has subsequently had chronic right shoulder pain.
Dr Porteous also concludes that the applicant has aggravated degenerative changes in the neck and left shoulder due to the change in biomechanics and overuse of the right shoulder.
Dr Porteous opines that the applicant is restricted from activities involving moderate or heavy lifting, pushing, pulling or carrying, and activities requiring stretching or reaching out with his arms, using his arms above chest height and work that involves sustained neck movements. He considers that the applicant could not return to truck driving work because he cannot get in and out of a cab, and he cannot secure loads, and the applicant is incapacitated to work as a plasterer.
Dr Porteous writes: “I would also note that given his narcotic-type medication he is on, he also would be further from most workplaces for health and safety reasons”.
Dr Porteous specifically addresses jobs which have been identified as suitable for the applicant to do by Christy Barni, rehabilitation counsellor and consultant, in a report dated 1 June 2020, being an equipment hire controller, product assembler and courier. Dr Porteous notes that these jobs which involve stretching and reaching out and that the jobs of equipment hire controller and product assembler also require lifting, which can include heavy lifting, and that the job of courier involves frequent carrying. Dr Porteous considers that the applicant is reasonably restricted from these activities.
Dr Scholz, specialist in pain medicine, has provided a report dated 3 September 2021.
Dr Scholz diagnoses the applicant suffering from radicular neck pain affecting both shoulders and the right arm.
Dr Scholz records that the applicant developed acute neck pain when trying to support a heavy bucket of concrete. He records that this developed into a chronic pain syndrome.
Dr Scholz records that the applicant’s decline in physical activity has resulted in physical deconditioning, and that his condition has worsened due to long term opioid use. He recommends a referral to the Multidisciplinary Pain Clinic at Lismore Hospital for assessment.
Christy Barni, rehabilitation counsellor and consultant, has provided a report dated 1 June 2020. She writes that her report is in response to a request “to complete an assessment of Mr Norford’s vocational capabilities in order to identify suitable employment options for Norford in relation to his employment history, education, qualifications and transferrable skills”. She writes that the assessment was conducted by telephone due to covid 19.
Ms Barni notes that Dr Dalgliesh certified the applicant medically unfit for work, but that
Dr Machart in a report dated 24 January 2020 considered the applicant fit for full time work with restrictions on the use of the right arm.
Ms Barni records that the applicant left school at Year 10 and provides an employment history which is consistent with the applicant’s evidence. She records that the applicant has basic computer and technology skills, which includes being able to send and receive emails and can use the internet, but he does not own a computer.
Ms Barni acknowledges that the applicant remains unfit for work but identifies the following options as light in physical demand as possible within the applicant’s vocational capabilities:
(a)    equipment hire controller;
(b)    light product assembler, and
(c)    courier.
Dr Keller, occupational physician, has provided a report at the request of the respondent dated 10 December 2020.
Dr Keller records restricted movement of the right shoulder compared to the left shoulder. He records full range of motion of the left shoulder and cervical spine. Dr Keller records that the applicant rates his constant right shoulder pain as 9 out of 10, and his constant neck pain at 8 out of 10. He records that the applicant can lift 15 kg with the left arm, but only 1 kg with the right arm, and that he can drive an automatic vehicle for up to 30 minutes.
Dr Keller opines:
“Mr Norford continues to report high levels of constant neck and shoulder pain that he attributes to the events of March 2018. It is not possible for me to state that he suffers no pain. He appears to have genuine restriction of motion in the shoulder joint. He has not recovered from this incident.”
Dr Keller considers that the applicant is not fit for work as a truck driver. He considers that the applicant has capacity to work up to 40 hours per week, but to avoid lifting more than 5 kg in the right hand, to avoid work over chest height with the right arm, and to avoid pushing and pulling with the right hand. The applicant is also limited to driving automatic vehicles.
Dr Keller considers that the applicant could work full time in the roles of equipment hire controller, product assembler and courier within the restrictions he had outlined.

Findings and reasons

In the final paragraph of the respondent’s written submissions in reply to the submissions which had been made by the applicant, Mr Baker submits that the applicant did not deal with serial inconsistencies in his statements and the records of the treating doctors, nor other issues in respect of the applicant’s work and mental and other health histories dating back to at least 2010, including psychological issues.
Mr Baker had spent some considerable time in his oral submissions identifying what he contends are inconsistencies in the applicant’s evidence and the records of treating doctors. Some of the material he referred to was directed to the claims of consequential conditions affecting the left shoulder and neck, which are disputed by the respondent, and also a broader argument that caution should be taken in regard to the veracity of the applicant’s complaints.

However, other submissions were made which traversed evidence that had already been before Arbitrator Bell. For instance, Mr Baker referred to MRI scans taken in May 2018, July 2018, and May 2019 which did not identify any significant abnormalities, but on a review of all the medical evidence, Arbitrator Bell was satisfied that the applicant did suffer from a chronic right arm condition.
I agree with the submission made by Ms Grotte that an issue estoppel arises in relation to those matters determined by Arbitrator Bell. Dixon J said in Blair v Curran [1939] HCA 223; 62 CLR 464 (Blair v Curran) at [532]:
“In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.”
The ‘groundwork of the decision’ of Arbitrator Bell was a review of all relevant lay and medical evidence which led him to conclude the applicant was totally incapacitated for work due to the ongoing effects of the injury to the right shoulder.
However, the estoppel can only be relied upon by the applicant up until the date of the determination of the previous dispute. Within a matter of days after Arbitrator Bell delivered his decision, Dr Stabler had seen the applicant for a second orthopaedic opinion. Dr Stabler then wrote that the applicant had some pain in his right shoulder, but that he considered it ‘nuisance pain’, and the applicant should have confidence in using his right shoulder for light activities.
It is also not apparent from my reading of the transcript of the decision of Arbitrator Bell as to whether the Arbitrator had seen a report from Dr Mison dated 12 October 2019 addressed to the applicant’s solicitors, which is included in the ARD in this dispute, and which was referred to by Mr Baker in his submissions. Arbitrator Bell refers to reports from Dr Mison dated 23 July 2019 and 26 September 2019, but he does not mention a report dated 12 October 2019.
However, a report from Dr Mison of that date is referred to by Dr Machart in a report dated 24 January 2020, which was admitted as a late document in those previous proceedings. That report from Dr Mison is also referred to in a section 287A review notice dated 25 November 2019.
Dr Mison opines in that report dated 12 October 2019 that the applicant has developed “an idiosyncratic post operative complication of an adhesive capsulitis”, but there was the prospect of further improvement over the 12 months. He also wrote that he expected the adhesive capsulitis to gradually settle over 12 to 24 months. Dr Mison noted morale and psychological factors at play which were placing the prognosis in question. Dr Mison opined that he had doubts that the applicant could return to his previous employment but would be capable of more sedentary occupations that do not require the use of the right arm for powerful activities.
There are two treating specialists who consider the applicant can undertake, or is capable of undertaking, suitable light activities in a work environment. Furthermore, although
Dr Dalgleish has continued to issue Certificates of Capacity certifying that the applicant has no current work capacity, there are details contained in those certificates which set out restrictions on the applicant’s work capacity, which arguably suggests a concession by
Dr Dalgleish that the applicant might be able to do some work.
However, the decision made by Arbitrator Bell that the applicant was totally incapacitated for work is primarily based upon the constant and debilitating pain which the arbitrator accepted the applicant was continuing to suffer from. There is not a lot of evidence to indicate that much has changed in regard to that in the past two years.
The prescription history set out in the clinical records from Dr Dalgliesh’s practice records the regular prescription of analgesic medication, which is consistent with the evidence provided by the applicant. Entries made by Dr Dalgliesh from 10 March 2020 to 26 November 2020, and from 25 February 2021 to 14 May 2021 consistently record the applicant continuing to seek treatment for chronic right shoulder pain.
Mr Baker refers to an entry made by Dr Davies on 16 April 2021 of:
“still having quite bad shoulder pain
Keeps aggravating it when picking up grandchild/kettle.”
Mr Baker submits that this entry indicates that the applicant does not feel so incommoded if he continually attempts to lift his grandchild without thinking of the consequences of such actions, and that such activity it is at least consistent with a level of capacity commensurate with an ability to undertake some limited work activities.
I consider that caution must be exercised in regard to what appears to be an isolated entry regarding some strenuous activity undertaken by the applicant. I do not accept that a spontaneous act of lifting a grandchild can be extended to a conclusion that the applicant is far less disabled than he claims to be. In any event, the entry also includes aggravation of shoulder pain from lifting a kettle, which is of course much lighter in weight, but which is a regular activity of domestic life.
Dr Stabler accepted that the applicant continued to have pain in his right shoulder when he saw the applicant soon after the decision of Arbitrator Bell, even though Dr Stabler considered it ‘nuisance pain’.
Dr Mison does not address issues of pain in his report dated 12 October 2019, or in his last report to Dr Dalgliesh dated 26 September 2019, but Dr Mison appears to accept in those reports that the applicant is still having problems with his right shoulder due to adhesive capsulitis and considered that it would be one to two years before that condition would gradually settle.
Dr Keller states that he cannot dispute the applicant’s complaints of pain in his neck and right shoulder, and he accepts that the applicant has genuine restriction of movement in the right shoulder.
Dr Porteous concludes from his examination and consideration of relevant material that the applicant has chronic right shoulder pain.
From my review of the evidence there has been little change in the condition of the applicant’s right shoulder since the decision of Arbitrator Bell in March 2020.
I accept the conclusion reached by Dr Porteous that the applicant has chronic right shoulder pain because that is consistent with the evidence from the applicant’s treating doctors.
Dr Porteous then applies that diagnosis to a consideration of the functional requirements of each of the three jobs which Dr Keller contends the applicant can undertake on a full time basis. Dr Porteous concludes that the applicant is reasonably restricted from the activities of stretching and reaching out and lifting, as well as frequent carrying in a courier job, which are required on those jobs.
Mr Baker submits that Dr Porteous asserts that the applicant is unfit for the three proposed positions based on certain requirements of those positions which Dr Porteous has referred to, yet there is no evidence from Ms Barni that those are actual requirements for the jobs she has recommended.
Dr Porteous does not state that the applicant is unfit for the three jobs recommended by
Ms Barni. What he does do, in his expertise as an occupational physician, is analyse whether those jobs require physical activities that are within the applicant’s capacity given his conclusion that the applicant is suffering from chronic right shoulder pain. His opinion, once he has undertaken that analysis, is that the applicant should be restricted from doing those jobs.
In addition to those restrictions, Dr Porteous is also aware of the significant amount of strong analgesic medication that the applicant is continuing to take every day. His opinion that: “given his narcotic-type medication he is on, he also would be further from most workplaces for health and safety reasons”, is clumsily worded. However, what I understand that to mean, and which I accept, is that the level of analgesic medication which the applicant is taking makes it very doubtful that the applicant can travel to a work location and to undertake actual activities in a workplace.
I agree with a submission made by Ms Grotte for the applicant that Dr Keller does not explain his reasoning as to why he considers that the applicant has the capacity to work up to 40 hours per week with certain restrictions on lifting, pushing and pulling, and working over chest height. Dr Keller merely states that “based upon the evidence available to me” he considers that this is the applicant’s current work capacity.
Dr Keller also does not explain why the applicant could work full time in the three jobs identified in the report from Ms Barni given that Dr Keller accepts that the applicant continues to experience pain and restriction of movement in the right shoulder.
Dr Keller is aware of the amount of pain medication that the applicant is continuing to consume, and the applicant specifically informed Dr Keller that he felt unsafe driving while using Panadeine Forte on a daily basis. Yet Dr Keller gives no consideration as to whether the applicant could travel to a workplace or carry out any work safely when the applicant is taking a significant amount of analgesic medication on a daily basis.
I also agree with a submission made by Ms Grotte that consideration must be given to the tiredness that the applicant suffers from as a result of disturbed sleep, which places the applicant at risk in travelling to any workplace and in his ability to work. This is not referred to specifically by Dr Porteous or Dr Keller, but it must be a practical consideration when determining if the applicant has any capacity for work.
For the applicant to continue to receive weekly payments of compensation as a result of the injury sustained on 9 March 2018, he must satisfy section 38 (2) of the 1987 Act, which provides:
“A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.”
‘No current work capacity’ is defined in clause 9 (2) of Schedule 3 of the 1987 Act as:
“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.”
‘Suitable employment’ is defined in section 32A of the 1987 Act:
“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.”
I have concluded from a review of the evidence that little has changed for the applicant since Arbitrator Bell found the applicant to be totally incapacitated in March 2020. I accept that the applicant continues to have significant pain and restriction of use of his right shoulder. That is supported by the evidence from the applicant’s treating doctors and Dr Porteous and
Dr Keller.
The applicant continues to take strong analgesic medication, which makes it unsafe for him to drive any distance to get to a job, or to undertake work in paid employment, especially if the job involves the use or handling of goods or equipment.
I have provided my reasons as to why I prefer the opinion of Dr Porteous over that of
Dr Keller in regard to the three particular jobs identified by Ms Barni as being suitable for the applicant to do. The applicant’s restrictions in the use of his right arm means that he is not suited to undertaking any of those three jobs.
I accept that the applicant is restricted in stretching, reaching, lifting and carrying with his right arm, which would be required in each of those three jobs. There is no suggestion by any expert that the applicant could do any of those jobs, especially as equipment hire controller or light product assembler, with the use of his left arm only. I note that the applicant states that he is right hand dominant.
The job of a courier might involve less lifting and carrying, but there are serious safety issues for the applicant in undertaking such a job because of the analgesic medication he is taking and his use of a sling while he drives.
It is difficult to envisage what jobs the applicant is currently suited for. It is nearly 40 years since the applicant left school in Year 10. He has worked in manual jobs all his life and is approaching 54 years of age. He is not suited to the three jobs proposed by Ms Barni, and the respondent has not suggested any other jobs of a manual nature that the applicant might be suited to having regard to the condition of his right shoulder.
The vocational assessment report from Rehab Management dated 7 June 2019, which was relied upon by the respondent in the proceedings before Arbitrator Bell, referred to the applicant having ‘strong’ computer literacy skills, although Ms Barni considered the applicant’s computer skills to be basic. The applicant does not have a computer, so he does not have the daily experience of using a computer which so much of the workforce in this nation have become accustomed to. I therefore consider, having regard to the applicant’s age, education and skills, that he would not be suited to any jobs of a clerical nature.
Having regard to the nature of the applicant’s incapacity due to the ongoing effects of the injury to his right shoulder, which not only includes the actual pain and restriction of movement of the shoulder, but also the constant use of analgesic medication, and the applicant having had a working life of almost 40 years in manual work, I find that the applicant has continued to have no current work capacity since the previous determination made by Arbitrator Bell.
The applicant therefore satisfies the provisions of section 38 (2) of the 1987 Act and there will be an award of weekly payments of compensation at the rate of $1,139.18 per week from 7 April 2021 to date and continuing.

Whether the applicant has conditions affecting his left shoulder and neck as a consequence of the injury to his right shoulder

The ARD filed on behalf of the applicant nominates the dispute as being in regard to weekly benefits where a work capacity decision is in dispute. The work capacity decision which was issued by the respondent on 13 January 2021 was in regard to an injury to the right shoulder only. At that time there had been no claim made by the applicant for consequential conditions affecting the left shoulder or neck.
I have now made a determination which is in response to the work capacity decision dated 13 January 2021. It has not been necessary for me to consider whether the applicant has consequential conditions affecting his left shoulder and neck because the injury to the right shoulder on its own continues to cause the applicant to have no current work capacity.
If the injury to the applicant’s right shoulder has not caused him to continue to have no current work capacity, then the claims for those consequential conditions would need to be the subject of consideration in order to determine if a combination of the injury to the right shoulder and the alleged consequential conditions have caused the applicant to have no current work capacity. However, given the findings that I have made and the specific dispute which has been brought before the Commission, being a dispute of a work capacity decision that is in regard to the right shoulder only, it is not necessary to determine the issue of the consequential conditions in these proceedings.

The orders sought pursuant to section 60 (5) of the 1987 Act

The ARD claims future treatment for the following:
(a)     physiotherapy treatment as recommended by Dr Dalgliesh;
(b)    pain management program as recommended by Dr Scholz, and
(c)    GP consultations.
There are three separate referrals for physiotherapy in the ARD:
(a)    on 19 February 2021 to Veronica Barker at Velocity;
(b)    on 14 May 2021 to Fluid Physio, and
(c)    on 8 June 2021 to Allan Nye at Yamba Maclean Physiotherapy.
The referrals to Ms Barker and Fluid Physio list a number of current problems including neck pain and depression. However, the actual history provided by the referring doctors only refers to an injury the right shoulder.
The referral to Mr Nye does not refer to any particular body parts which require treatment but simply asks Mr Nye to see the applicant for “ongoing health care needs” and a functional assessment with non-pharmacological pain management strategies.
The Certificates of Capacity issued by Dr Dalgliesh during 2021 refer to persistent neck pain, but without there being a report from Dr Dalgliesh, there is not enough information contained in the referrals to determine if the requests are for treatment for any other body parts other than the right shoulder. Furthermore, the clinical notes from Dr Dalgliesh and Dr Davies between 19 February 2021 and 19 May 2021, which coincide with at least the first two referrals, only record problems that the applicant is having with his right shoulder. There is no mention of the neck or left shoulder in those notes.
Neither Dr Mison nor Dr Stabler recommend any further physiotherapy treatment. The recommendation made by the physiotherapy department at Maclean Hospital on the day after the applicant’s manipulation on 11 September 2019 was to use a pulley system at home.
Dr Keller opines that the applicant is unlikely to benefit from physiotherapy. Dr Porteous considers that the applicant will need courses of physiotherapy once or twice a year “for flares and setbacks”. He does not state if that is only for the right shoulder or for the neck and left shoulder.
The referrals for physiotherapy made by the applicant’s general practitioners are not for “flares or setbacks”, but for an assessment of the applicant’s needs. Furthermore,
Dr Porteous is not a treating doctor and acknowledges this at the commencement of his report when he states: “I was not able to provide any advice”. Section 60 (5) of the 1987 Act provides a benefit to a worker for ‘proposed treatment’.
In Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose), Burke CCJ said at [48A-C]:
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”
The respondent contends that the applicant has had sufficient physiotherapy treatment and there is no need for any further treatment. However, given that the applicant has been experiencing chronic pain in his right shoulder for several years now, the applicant should at least have the benefit of an up to date assessment by a physiotherapist to consider whether any further treatment might alleviate the consequences of his injury.

If a physiotherapist can provide cogent reasons for further treatment, then the respondent should give due consideration to this having regard to the ongoing problems that the applicant has had with his right shoulder. However, given the referrals made by the general practitioners are limited to an assessment by a physiotherapist, and there is no indication of how many sessions of physiotherapy might be required, the benefit derived from section 60 (5) of the 1987 Act at this point of time can be no more than an order that the respondent is to meet the cost of an assessment by a physiotherapist.
In regard to the pain management program outlined by Dr Scholz in his report dated 3 September 2021, the only actual proposal for treatment in the ‘Recommended Management Plan’ is a referral to Lismore Base Hospital Multidisciplinary Pain Clinic for assessment. Otherwise, Dr Scholz states that if the applicant “feels he needs assistance” there can be a referral to psychologist to manage depression, and to an exercise physiologist for physical rehabilitation. Dr Scholz also asks for consideration of an epidural steroid.
The applicant’s presentation to Dr Scholz is for radicular neck pain affecting both shoulders, which Dr Scholz records as having occurred in 2018 when the applicant was supporting a heavy bucket of concrete. That understandably causes the respondent to query whether it should meet the cost of treatment proposed by Dr Scholz because that doctor is under a misapprehension as to what body part was injured by the applicant in 2018. The applicant does not assert that he injured his neck on 9 March 2018.
I have accepted from a review of the evidence that the applicant continues to suffer from chronic right shoulder pain. I therefore consider it is reasonably necessary that the applicant have the benefit of an assessment from a specialised pain clinic at least in regard to his right shoulder injury. If the applicant is regarded as a suitable candidate for further treatment, then the respondent should give due consideration to meeting the cost of pain management.
I note there is a concession made in the dispute notice dated 30 November 2021 that the respondent would consider a multi disciplinary pain management program if it were received, but it appears from the contents of that notice that the respondent only had a recommendation from Dr Porteous, and the respondent did not have the report of Dr Scholz dated 3 September 2021.
I appreciate that if the recommendation for pain management extends to treatment of the neck or left shoulder, and the respondent disputes this, then further litigation might ensue. However, the extent of any order that can be made within the provisions of section 60 (5) is for the payment of an assessment by the Lismore Base Hospital Multidisciplinary Pain Clinic because that is the only actual referral for further treatment which is proposed by Dr Scholz.

The notices issued by the respondent on 8 March 2021 and 30 November 2021 which dispute the claim made by the applicant for physiotherapy treatment, also extended the dispute to all future medical expenses in general under section 60. No reason is given for this by the respondent, and it appears to me that this particular decision is quite unfair. There is no evidence to suggest that the effects of the injury have resolved or are now only of a trivial nature.
It should not be necessary for the applicant to seek an order pursuant to section 60 (5) for the payment by the respondent of future consultations with his general practitioner. Surely if it is reasonably necessary for the applicant to attend his general practitioner for treatment for his work injury, it should be met by the respondent.
I consider the appropriate way to deal with this particular claim is to make a general order that the respondent is to pay the reasonably necessary medical expenses for the applicant’s attendances upon his general practitioner for treatment of his right shoulder injury.

[2022] NSWPIC 256

30 May 2022