Nzobakenga v Costaexchange Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Nzobakenga v Costaexchange Pty Ltd [2023] NSWPIC 11
APPLICANT:	Janviere Nzobakenga
RESPONDENT:	Costaexchange Pty Ltd
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	11 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation pursuant to sections 37 and 38 of the Workers Compensation Act 1987 (1987 Act) and a claim for section 60 expenses, with respondent arguing the applicant had recovered from the injury; the respondent also argued that the Personal Injury Commission (Commission) does not have jurisdiction to make an award pursuant to section 38; Held – the Commission has jurisdiction to determine a dispute involving a claim under section 38; Lee v Bunnings Group Pty Ltd distinguished as it was determined before the legislative amendments made by the Workers Compensation Legislation Amendment Act 2018; the applicant has no current work capacity and awards for weekly compensation made pursuant to sections 37 and 38(2); general order made for the payment of section 60 expenses.
determinations made:	i) Pursuant to s 37 and s 82D of the Workers Compensation Act 1987 the respondent is to pay the applicant weekly compensation as follows: (1) from 22 April 2020 to 30 March 2021 at 80% of the indexed pre-injury average weekly earnings rate of $795; (2) on 31 March 2021 at 80% of the indexed pre-injury average weekly earnings rate of $113.57; (3) from 1 April 2021 to 6 April 2021 at 80% of the indexed pre-injury average weekly earnings rate of $686.57, and (4) from 7 April 2021 to 21 September 2021 at 80% of the indexed pre-injury average weekly earnings rate of $801. ii) Pursuant to s 38 and s 82D of the Workers Compensation Act 1987 the respondent is to pay the applicant weekly compensation at the rate of 80% of the indexed pre-injury average weekly earnings from 22 September 2021 to date and continuing. iii) The respondent is to have credit for any payments made in the above mentioned periods. iv) The respondent is to pay the applicant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts, receipts and or/Medicare Notice of Charge.

STATEMENT OF REASONS

INTRODUCTION

On 26 March 2019 Janviere Nzobakenga, the applicant, sustained injury when she was working at the farm of Costaexchange Pty Ltd, the respondent. She was pushing a trolley loaded with fruit which fell into a hole causing her to fall with the trolley injuring her right side and back.
In these proceedings Ms Nzobakenga seeks weekly compensation pursuant to ss 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act) as set out in her Amended Applicant’s Wages Schedule[1]. She also seeks a general order for s 60 expenses. Her Application to Resolve a Dispute (ARD) is amended to reflect these claims.
[1] AALD-A pp 13-18.
The respondent does not dispute the mathematics of the weekly compensation claim, but maintains the disputes set out in the notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 29 April 2021 and the s 287A review notice dated 2 December 2021.
The main issues in dispute are:
(a)    whether Ms Nzobakenga has recovered from the effects of the injuries sustained on 26 March 2019;
(b)    if not, what is the extent of her incapacity for employment, and
(c)    what is the entitlement, if any, to weekly compensation.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/ arbitration hearing before me on
18 October 2022. Mr Stephen Hickey, counsel, instructed by Mr William Langler, solicitor, appeared for the applicant who was present with her husband. A Burundi interpreter had been arranged by the Commission but did not attend. Mr Paul Stockley, counsel, instructed by Ms Jennifer Gair, solicitor, and Mr Michael Lean from the insurer appeared for the respondent. The hearing was conducted on the MS Teams platform due to the Covid-19 situation and because not all parties were located in Sydney.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (AALD-A) dated 12 October 2022 filed by the applicant;
(c)    Certificate of Capacity dated 29 August 2022;
(d)    Reply and attached documents, and
(e)    Application to Admit Late Documents (AALD-1) dated 13 October 2022 filed by the respondent with the exception of the Rehabilitation Co reports dated
24 July 2020 and 30 April 2021.
Mr Hickey objected to me admitting into evidence the reports of Dr Chris Walls dated
20 November 2020 and 21 February 2021 in the respondent’s reply on the basis that they offend Regulation 44 of the Workers Compensation Regulation 2016. Mr Stockley pressed for the inclusion of the records. Both counsel made submissions and I gave brief reasons for admitting into evidence those reports. I advised the parties I would provide more detailed reasons in my written decision.
Dr Walls is an occupational physician. His reports were commissioned by the insurer to provide injury management advice. He states in his first report that the reason for the referral was to assess Ms Nzobakenga and specify work upgrades and timeframes for treatment. Regulation 44 provides only one forensic medical report may be admitted on behalf of a party in the proceedings. It is argued by Mr Hickey that the reports of Dr Walls come within the definition of “forensic medical report” in sub-paragraphs 4(a) and (b). Sub-paragraph (a) refers to reports that have been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute. At the time
Dr Walls reports were obtained there was no dispute between the parties as the insurer was paying Ms Nzobakenga weekly compensation. I find the reports were not obtained for the purpose of proving or disproving an entitlement rather to advise the insurer on how to manage the rehabilitation, as work upgrades and timeframes for treatment are relevant to the rehabilitation process.
Mr Hickey also relied on Regulation 44(4)(b) which includes in the definition of a forensic medical report, one provided by a specialist in respect of an examination pursuant to s 119 of the 1998 Act. Dr Walls reports do fall within this provision. However, Mr Hickey has overlooked there is the word “and” between sub-paragraph (a) and (b). I have found the reports do not fall within sub-paragraph (a) so therefore the reports do not fall within the definition of a forensic medical report.
In addition, Regulation 44(3) provides where the worker has been treated by more than one specialist medical practitioner with different qualifications then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that speciality. In
Ms Nzobakenga’s case she has been treated by at least three specialists, Dr Summersell, orthopaedic surgeon, Dr Siu, a neurosurgeon, and Dr Clarke, a pain specialist. Once
Dr Walls reports are admitted, then because Ms Nzobakenga has been treated by more than one specialist, the respondent can have the reports of Dr Stephen admitted because his orthopaedic qualifications are in the speciality of those held by Dr Summersell.
Mr Hickey also advised that the Certificate of Capacity in the applicant’s late documents had pages referring to her husband and so his solicitor emailed to me a correct copy of the certificate, which has been admitted into evidence.
In relation to the Rehabilitation Co reports dated 24 July 2020 and 30 April 2021 in the respondent’s late documents, Mr Hickey objected to their admission into evidence on the basis that they offend s 73 of the 1998 Act and Regulation 41 as they were not served with any of the dispute notices. There was no objection to the report dated 21 September 2022. Mr Hickey relied on the decision in Chown v Tony Madden Refrigeration Transport Ltd[2] that it is a mandatory obligation to serve such a report with the dispute notice. Mr Stockley submitted that these documents do not offend the provisions and they were not used to dispute liability.
[2] [2005] NSWWCCPD 189, Chown.
I find these rehabilitation reports fall within Regulation 41 (1)(e). Sub-sections (2) and (3) require the reports to be attached to the dispute notice. In this case they were not attached to the dispute notices dated 29 April 2021 and 2 December 2021. Mr Stockley submitted that the reports were not used to dispute liability, however I find that is not a relevant aspect of the Regulation. Sub-section (4) of Regulation 41 provides that the obligation to provide a copy of the report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates. In this matter, I find the reports do relate to an aspect of the claim, being for weekly compensation. I find for the reports to be admissible they needed to be attached to a dispute notice and, as they were not, I cannot admit them into the evidence in the proceedings.

Oral evidence

There was no application to cross-examine. Oral submissions were made by the respective parties. A sound recording was made of the arbitration hearing, which is available to the parties.

SUMMARY OF EVIDENCE

Applicant’s statement

Ms Nzobakenga has provided a statement which has been translated into English. Her native language is Kirundi. She is now aged 51 and was born in Burundi and migrated to Australia in 2007. She has very limited ability to speak and understand English. She had worked in Burundi as a farm labourer. She commenced employment with the respondent in 2013 as a fruit picker. She describes the work as very physically demanding. She worked six days per week. On 26 March 2019 she was pushing a trolley loaded with raspberries and the trolley and she fell into a hole. Ms Nzobakenga states she landed on her right side and she felt immediate pain in her mid and lower back and the right side of her chest and body. She says she kept trying to work and afterwards she felt pain going down her right leg towards her right foot. She reported the injury and went to her general practitioner, Dr Tyagi.
She says she had bruising on the right side of her bottom. The doctor sent her for X-rays of her pelvis and hips and certified she had no capacity to work to 2 April 2019. Her statement sets out details of her treatment and her current problems. She states that her back and right leg are getting worse. Her right foot feels numb a lot of the time and hot. She states that if she stands, sits, walks for longer than 15 minutes her back pain gets worse as it does when she does tasks involving bending down and twisting and cooking and cleaning. She is often tired due to back pain disturbing her sleep.
Ms Nzobakenga states she does not believe she can return to work as a fruit picker due to her back pain and restriction as the duties required a lot of bending, lifting and carrying and walking on uneven ground. She says she does not think she could undertake work such as a tube stock assistant or product assembler as they involve a lot of standing for long periods, which she says she cannot do. She says the insurer has not provided her with re-training and her lack of English skills means she needs the assistance of an interpreter. She says physiotherapy and hydrotherapy helped with her back pain.

Treating medical evidence

On 26 March 2019 Ms Nzobakenga consulted Dr Tyagi who used a telephone interpreter. She has a history of the fall involving the right buttock, hip and thigh[3]. The doctor records that Ms Nzobakenga referred to a lump on her right gluteal region which appeared after her injury. On examination Dr Tyagi noted she walked with a limp and had a tender lump on the back-right gluteal region but she states, “unlikely acute”. Her thigh was tender and she had full range of movement in her right hip but it was painful. There was no concern with her left side. Dr Tyagi issued a WorkCover NSW -certificate of capacity with diagnosis of right sided thigh pain stating she had capacity for some type of employment to 2 April 2019[4]. It was noted that she should avoid lifting, standing and pushing/pulling and that she had difficulty walking and was using a walking stick/crutches to walk.
[3] ARD p 91.
[4] ARD p 111.
On 26 March 2019 an X-ray of Ms Nzobakenga’s pelvis and hips and ultrasound of her right hip/gluteal region was conducted[5]. The ultrasound revealed two areas of haematoma in the right thigh/ buttock area.
[5] ARD p 81.
On 2 April 2019 Ms Nzobakenga saw Dr Tyagi. She noted she was still in pain and taking Nurofen and she referred her for physiotherapy treatment. Dr Tyagi issued a WorkCover NSW -certificate of capacity noting she had capacity for average hours and days per week for some employment with the restrictions noted on the earlier certificate[6]. On 10 April 2019 Dr Tyagi prescribed Gabapentin and requested a lumbar CT scan. Dr Tyagi issued a WorkCover NSW -certificate of capacity including in her diagnosis lower back pain radiating to the right gluteal region, thigh and leg[7]. She had the same certification about her capacity for some employment as in the previous certificate.
[6] ARD p 113.
[7] ARD p 116.
On 17 April 2019 a CT lumbar scan was performed[8]. The history in the report is lower back pain radiating down to right lower leg. The radiologist concluded there was no significant lumbar disc pathology identified. He refers to an “anterior wedge fracture and invagination of the superior end plate of L3 towards the centre of the body,? fracture rather than a prominent Schmorl’s node. There is however no obvious soft tissue swelling noted adjacent to the vertebral body”.
[8] ARD p 82.
On 1 May 2019 Dr Tyagi recorded that Ms Nzobakenga was still in pain and that she had lower back pain radiating to her right lower leg. She was using crutches and said her pain was improving[9]. A referral to physiotherapy was given. Dr Tyagi issued a WorkCover NSW -certificate of capacity with the same certification relating to capacity for some employment[10]. On 22 May 2019 she recorded that her lower back pain had improved. She prescribed Mobic and Targin. Dr Tyagi issued a WorkCover NSW -certificate of capacity with a lifting capacity of 5 kg, standing tolerance of one hour and pushing/pulling ability of 5 kg. She certified
[9] ARD p 91.
[10] ARD p 120.
[11] ARD p 123.
Ms Nzobakenga fit for some employment for average hours and days per week[11].
On 19 June 2019 Dr Tyagi records that the pain medication was working and
[12] ARD p 126.
Ms Nzobakenga felt fit enough to go back to normal duties, although further down the page she refers to alternate duties. An interpreter and her husband and Judi (from the employer) were present at the appointment. Her back pain was improving the doctor states it was 10 one month ago and now is 7/10. Dr Tyagi issued a WorkCover NSW -certificate of capacity with the same restrictions as previously and that she was fit for some employment but she did not specify the hours or days[12].
On 22 July 2019 Dr Tyagi saw Ms Nzobakenga. She records Ms Nzobakenga had pain down her leg and the workplace said she was unable to do picking. She was unable to squat and had pain on bending forward. Dr Tyagi encouraged compliance with pain medication.
Dr Tyagi issued a WorkCover NSW -certificate of capacity removing most of the restrictions and certifying her fit for some employment for average hours and days per week[13]. On
[13] ARD p 129.
[14] ARD p 93.
[15] ARD p 135.
19 August 2019 Dr Tyagi refers to right gluteal region pain. Also to light duties. Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate. On 17 September 2019 Dr Tyagi notes Ms Nzobakenga attended with Judi and there were interpreter services. She notes she was keen to do light duties. The doctor wanted her to bring all her medications to the next appointment so she could check them.[14] Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate [15].
On 15 October 2019 Dr Tyagi referred Ms Nzobakenga to Dr Summersell. She recorded she was walking with a limp and was not keen on taking Targin. She notes “light duties” in similar terms as the previous certificate. On 18 November 2019 Dr Tyagi records that her lower back pain was persistent and she was not taking pain relief. She was taking some medication from her own country for the pain. She attended with Judi and there was a phone interpreter.
[16] ARD p 140.
Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate[16].
Dr Summersell is Ms Nzobakenga’s treating orthopaedic surgeon. He reported to Dr Tyagi on 22 November 2019[17]. He advised that she has mainly right sided pain in her lower back and down the lateral hip into her thigh extending to her knee. There were no pins and needles or numbness. He records that she said the pain was noticed more on walking and the pain had been present since the injury in March. Dr Summersell noted her pelvic X-ray of 26 March 2019 showed no abnormalities and the lumbar CT scan of 17 April 2019 revealed no obvious bone pathology. He diagnosed a sprain of the lumbosacral spine. He expected Ms Nzobakenga’s symptoms would improve over time and he said she could increase her duties as able.
[17] ARD p 63.
Dr Summersell reported to her physiotherapist on 22 November 2019[18]. He was of the view that she would continue to improve over time and asked for her rehabilitation program to be continued.
[18] ARD p 62.
On 17 December 2019 Dr Tyagi records that he saw Ms Nzobakenga with a phone interpreter and that she was keen to continue alternative duties. It is recorded that her husband is concerned about relocating to Tasmania as Ms Nzobakenga is dependent on him. Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate[19]. On 20 January 2020 Dr Tyagi records that she was limping and complaining of right torso pain[20]. Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate[21] On 18 February 2020 Dr Tyagi notes she is to continue with alternative duties. Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate[22].
[19] ARD p 144.
[20] ARD p 94.
[21] ARD p 146.
[22] ARD p 150.
On 17 February 2020 the physiotherapist reported to the insurer’s rehabilitation provider[23]. It was noted they had been treating Ms Nzobakenga since 27 November 2019. It is stated in the report that Ms Nzobakenga presented with chronic pain and fear avoidance using her right hip and leg. She did not attend appointments regularly and there were significant language barriers. On 3 March 2020 a bone scan was conducted[24].
[23] ARD p 87.
[24] ARD p 84.
On 5 March 2020 Dr Summersell reported to Dr Tyagi that Ms Nzobakenga localised more of her symptoms to the right posterolateral chest region and right loin/iliac crest. He said that the bone scan did not show any focus in her right hip or leg but there were some changes in her spine and SI joints. He said there was a focus on the right 9^th rib. He recommended she see a spine specialist for an opinion[25].
[25] ARD p 64.
On 17 March 2020 Dr Tyagi records a consultation which was mainly about her diabetes but the doctor did request a lumbar MRI scan and gave a referral to Dr Siu. Dr Tyagi issued a WorkCover NSW -certificate of capacity with a restriction on pushing/pulling to 15 kg[26]. The doctor maintained the certification that she could perform some employment for average hours and average days per week.[27] On 8 April 2020 Dr Tyagi conducted a phone consultation with Ms Nzobakenga noting her back pain was persistent and she encouraged her to do light duties. A letter was sent to Judi the supervisor from the Costagroup.
[26] ARD p 153.
[27] ARD p 153.

On 15 April 2020 Ms Nzobakenga underwent an MRI Lumbosacral scan[28]. The radiologist found a large prominent depression at the superior endplate at L3 consistent with a large Schmorl’s node with very mild surrounding osteoedema. There was no focal disc protrusion, spinal canal stenosis or exiting nerve root compromise. On 22 April 2020 Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate[29].
[28] ARD p 85.
[29] ARD p 156.
On 19 May 2020 Dr Tyagi refers to Coryn rehabilitation consultant being present in the consultation and that Ms Nzobakenga was not doing any paid work at that stage. She records that Ms Nzobakenga had a “slow walk minimal no pain, fast walk has pain not sure how much”. Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate.[30] Thereafter, there are several consultations recorded which were conducted via telehealth due to Covid 19 restrictions. On 9 June 2020, 7 July 2020,
[30] ARD p 159.
3 August 2020, 24 and 30 September 2020, 10 and 30 November 2020 Dr Tyagi issued WorkCover NSW -certificates of capacity in similar terms as the previous certificates.
On 3 June 2020 the physiotherapist reported she had five sessions with Ms Nzobakenga ending on 1 April 2020. It is noted she had also been undertaking hydrotherapy with her exercise physiologist with limited benefit and it had to cease due to Covid-19 restrictions. She says collectively they saw little improvement in her pain and function despite multiple rehabilitation approaches. There were challenges due to the language barrier and attempts to work with an interpreter were unsuccessful.
Ms Nzobakenga saw Dr Timothy Siu from Macquarie Neurosurgery who reported to
[31] ARD p 65.
Dr Clarke at Pathia Pain Management, Coffs Harbour, on 24 June 2020[31]. He related the history that she had been suffering from persistent right lateral chest wall pain and some back pain which clinically appeared to originate from the sacroiliac area since the workplace injury. Dr Siu stated that the bone scan demonstrated intense uptake in the right 9^th rib laterally and some mild arthritis in the sacroiliac joints. He said that a prolonged course of physiotherapy did not result in improvement. Dr Siu advised that her pain had a clear mechanical flavour and noted she had not been able to do any physical work. He requested Dr Clarke review Ms Nzobakenga. Dr Siu also reported to Dr Tyagi and advised that on examination her reflexes were present and symmetrical in her lower limbs with no marked focal weakness. He said she had a reasonable range of active spinal movement despite her pain. He found some focal tenderness in the right lateral chest wall and right sacroiliac region.
Dr Siu referred to the MRI lumbar spine scan dated 15 April 2020 which he said demonstrated no neural compromise. He said there was a prominent superior endplate depression anteriorly at L3 suggestive of a Schmorl’s node. Dr Siu referred to the bone scan dated 2 March 2020 advising it demonstrated a focal intense uptake in the right 9^th rib laterally. He said there was no significant uptake in the lumbar spine but mild bilateral sacroiliac joint activity, suggestive of low-grade arthritis.
Dr Siu said clinically Ms Nzobakenga’s reported pain from her work accident correlated with a right 9^th rib fracture and arthritis in the sacroiliac joints, rather than her lumbar spine. He recommended she have a pain specialist review and hence the referral to Dr Clarke.
On 2 September 2020 Dr Tyagi recorded that Ms Nzobakenga was not working at that stage and work makes her pain worse. She was able to cook without pain and worked at home avoiding pushing, pulling and bending down.[32] On 10 November 2020 Dr Tyagi noted that she was unable to work in the farm and has persistent back pain.
[32] ARD p 97.
Dr Clarke reported to Dr Siu on 15 January 2021[33]. He advised that he did not think the L3 Schmorl’s node was the cause of her pain although he said there is some slight surrounding oedema. He stated separate from this was the potential for painful diabetic neuropathic pain in the context of poorly controlled diabetes. He thought the chest pain might be from the previously fractured rib. He added there were potentially cultural issues which may affect pain presentation but said he was not able to explore them at that time. Dr Clarke wanted to exclude the sacroiliac joint as a source of pain and so he wanted to perform an injection which would be both diagnostic and potentially therapeutic.
[33] ARD p 68.
On 18 January 2021 Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate that Ms Nzobakenga could perform some employment with average hours and days per week with a 15 kg pulling/pushing limit[34].
[34] ARD p 183.
On 18 February 2021 Dr Clarke performed the right sacroiliac injection at Baringa Private Hospital. On 15 February 2021 and 16 March 2021 Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificates[35]. On 22 April 2021
[35] ARD p 189.
Dr Clarke reported to Dr Tyagi that no analgesia effect seemed to have occurred from the injection as Ms Nzobakenga continued to complain of right-sided lower back, hip and “burning” sensation in the right thigh. Dr Clarke said he reviewed the imaging again and an obvious pain generator was not suggested by it. On examination he found reasonable range of movement in the hip and Dr Clarke went for a 200m walk with Ms Nzobakenga to assess her function. He said she walked unaided with a slow antalgic gait. He advised he thought she was significantly depressed and he thought there were significant pain behaviours although he accepted she had pain. He prescribed low dose of nortriptyline to help with her sleep and any neuropathic component. Even though Dr Clarke was doubtful about there being a biomechanical issue he proposed performing various diagnostic blocks.
On 28 April 2021 Dr Tyagi issued a WorkCover NSW -certificate of capacity with the push/pull limit reduced to 12 kg but the doctor still certified her being fit for some employment for average hours and days per week[36]. On 12 May 2021 Dr Tyagi issued a WorkCover NSW -certificate of capacity in similar terms as the previous certificate but removed the push/pull limit[37].
[36] ARD p 192.
[37] ARD p 195.
Ms Nzobakenga commenced seeing Dr Kuppusamy, general practitioner, and in his clinical notes he records that he saw her on 21 February 2022 about her diabetes. He saw her again on 8 March 2022 noting a history of pain in the lateral lower chest wall/abdomen with a sudden onset which start the prior evening. He formed the impression it was muscular pain[38]. On 22 March 2022 he reviewed her again about her diabetes. On 22 April 2022 the doctor reviewed her and immunised her with Vaxigrip Tetra, which is a vaccine for influenza.
[38] ARD p 213.
A thoracic X-ray dated 20 April 2022 was requested by Dr Hopcroft it revealed subtle anterior wedging of T6 which the radiologist said may suggest an old compression fracture. An MRI scan of thoracic spine also referred to this finding and added no acute compression fracture was found in the thoracic spine. The depression of the superior endplate of L3 vertebral body was noted and stated may be due to a compression fracture or a prominent Schmorl’s node. There were no significant disc bulges or thecal sac narrowing in the thoracic spine[39].
[39] Reply p 45.
On 5 May 2022 Ms Nzobakenga attended Dr Kuppusamy to ask for a work cover certificate and so he took a history about the work injury. He records that she has ongoing pain mainly lower thoracic and lumbar spine with some neuropathic features.
On 9 May 2022 Dr Kuppusamy issued a WorkCover NSW -certificate of capacity with a diagnosis of thoraco-lumbo-sacral low back pain. He certified her as having no current capacity for any work[40]. On 15 June 2022 Dr Kuppusamy issued a WorkCover NSW -certificate of capacity with a diagnosis of low back pain and certifying her as having no current capacity for any work[41]. The same certification was made on 25 July 2022.
[40] ARD p 198.
[41] ARD p 200.
On 25 July 2022 Dr Kuppusamy records that Ms Nzobakenga was complaining of bilateral foot pain, with pain in the dorsum of the foot. He sought X-rays.
On 29 July 2022 Dr Kuppusamy notes worsening back pain with radiculopathy and requested a lumbar CT scan.
On 8 August 2022 Dr Kuppusamy issued a report detailing the history of the workplace fall. He notes that Ms Nzobakenga walks slowly with a limp due to pain and has tender lower thoracic/lumbar spine. The doctor advises that she has never been back to work since the fall and he believes she will have ongoing low back pain and radiculopathy. He expresses the view that she will not be able to return to normal berry picking work[42].
[42] ARD p 210.
On 29 August 2022 Dr Kuppusamy issued a SIRA certificate of capacity certifying her as having no current capacity for any work to 27 September 2022.
On 30 September 2022 the doctor issued a further certificate in the same terms covering the period to 28 October 2022.

Dr Hopcroft

Ms Nzobakenga’s solicitors qualified Dr Hopcroft, general surgeon, who has provided medico-legal reports dated 27 October 2021[43], 23 June 2022[44] and 11 October 2022[45] .
[43] ARD p 56.
[44] ARD p 207.
[45] AALD-A p 10.
Dr Hopcroft in his first report stated that unlike Dr Walls and Professor Stephen, he could not find any exaggerated behaviour and found Ms Nzobakenga to be cooperative, intelligent and there was no disconnection with her history and clinical examination. He said he closely observed her over an hour and a half. He found she had quite marked pain over the lower thoracic spine extending to her right chest wall and some restriction of movement in the thoracolumbar and lumbosacral segment.
Dr Hopcroft expressed the opinion that the L3 vertebral body was most likely fractured rather than being a Schmorl’s node because he said it would be most unusual to have only one Schmorl’s node as the cause routinely affects multiple vertebrae. He said a fracture is also consistent with her clinical outcomes. He also stated the presence of osteoedema at L3 is indicative of acute change having occurred at this site.
Dr Hopcroft found Ms Nzobakenga was currently unfit for her pre-injury employment as she struggles with flexion, extension and rotation manoeuvres of her spine. He thought this restriction would be ongoing both in regard to her duties and hours worked. He recommended thoracic radiological studies which he said her prognosis would be pivotal upon the results. The reason why Dr Hopcroft recommended such studies be undertaken was to exclude the possibility of a significant cause arising from the lower thoracic spine where he said she suffered a fracture 9^th rib which he stated could be a sentinel injury associated with her thoracic spine injury.
In his second report dated 23 June 2022 Dr Hopcroft discusses the thoracic spine radiology of April 2022. He again expresses the opinion that the finding at L3 is most likely due to trauma than the presence of a Schmorl’s node. He expresses the view that Ms Nzobakenga is unfit to return to berry picking as it involves repetitive bending and lifting and carrying objects and often working on uneven surfaces. He states she is fit for sedentary work only. Dr Hopcroft says he disagrees with Dr Stephen’s view that there was a very large non- physical component as he states the radiology reveals significant pathology in the thoracic and lumbar spines and her clinical presentation is consistent with this. He also dismisses
Dr Walls opinion as he says it was given without considering the radiology.
In his third report Dr Hopcroft says he observed Ms Nzobakenga when she attended with her husband for his medical examination on 14 June 2022. The doctor says she was still severely disabled with back pain and spent the hour she was present lying supine in the examination couch. He observed her struggling to walk to the carpark afterwards with “exactly the same significant forward flexion tilt and problems with ambulation, which are consistent with her diagnosis of fractures of the thoracic and lumbar spine”. He states:
“In fact, so severe was her recent observed deterioration that it is quite possible that the flexion deformity caused by her thoracic and lumbar spinal injury could have caused spontaneous osteoporotic fractures to have developed, and I believe follow-up x-ray of the thoracic and lumbar spine to be compared with the previous x-rays would lend considerable credibility to her ongoing and significant incapacity.”
Dr Hopcroft refers to the Labour Market Analysis report dated 21 September 2022 and opines that Ms Nzobakenga cannot undertake the work of an egg sorter and grader due to her back pain symptoms when standing. He suggests that if she were to do such work there would be a risk of further deterioration in her spinal function and he says perhaps even the development of spontaneous osteoporotic wedge fractures occurring because of her significant flexion deformity. He concludes his opinion by referring to Ms Nzobakenga’s significant limitations in the English language and states because of her physical and language limits he feels she has no realistic capacity for work.

Dr Walls

Dr Walls is an injury management consultant who has prepared reports for the insurer dated 21 February 2020 and 20 November 2020. In his first report Dr Walls states that the interpreter did not attend and he used Ms Nzobakenga’s partner but Dr Walls says there were considerable language difficulties and the Injury Management Consultation was unsatisfactory for that reason. Dr Walls stated he had no investigations available to him. He said the examination of Ms Nzobakenga was difficult as she could not comprehend instructions so he did not test her hips or knees. He says she walked with a right limp. The doctor states that Ms Nzobakenga had been working the same hours but in a different lighter job washing trays. This does not appear to be correct as Ms Nzobakenga has given other histories that she has not worked since the fall at work. Dr Walls stated as she was coping with that the certification should remain unchanged.
In his second report, Dr Walls notes he was referred additional documentation and that he spoke to Dr Tyagi who was apparently confident that Ms Nzobakenga had some work capacity perhaps initially with restricted hours and physical restrictions. Dr Wall says they discussed work options and the work factors likely to aggravate Ms Nzobakenga’s back pain are heavy work, work related lifting and forceful movements, awkward postures such as bending and stooping. Dr Walls says the pre-injury work is not appropriate and he suggested tube stock nursery assistant if the work benches were at a correct height and product assembler where the product is light and line is not particularly paced and stacking to pallet not continuous. He suggested a work trial.

Dr Stephen

Dr Stephen, orthopaedic surgeon, provided a medico-legal report for the respondent dated
8 March 2021[46]. He examined her without an interpreter but Ms Nzobakenga’s partner was present and Dr Stephen said his English was quite good. Dr Stephen noted that
[46] Reply p 30.
Ms Nzobakenga at times limped on the right side but it was not constant. He diagnosed that she did sustain a significant contusion to her right lower ribs, flank and right buttock. He expected that her symptoms would have resolved over two to three months and he said he could not explain her ongoing complaints in terms of physical injury. He thought there was a large non-physical component to her complaints. From a physical point of view he assessed her as having her pre-injury capacity for employment.
In his second report dated 20 July 2022, Dr Stephen noted he had been referred the 2020 and 2022 MRI scan reports and Dr Hopcroft’s reports[47]. He advises that Ms Nzobakenga did not complain of any thoracic pain excepting in relation to the right lower rib area. He found inconsistencies on examination. Dr Stephen considered at L3 there was a Schmorl’s node and stated he had never seen such a node produced by trauma. He advised that Schmorl’s nodes are the product of a gradual herniation of an intervertebral disc through a weakened end plate, mostly at the time of an adolescent growth spurt. He disagrees with Dr Hopcroft’s opinion that the Schmorl’s node was an acute injury and says it does not correlate with the distribution of Ms Nzobakenga’s symptoms which are essentially right sided and extend from the lower rib cage to the foot. He maintained his view that Ms Nzobakenga had capacity for employment.
[47] Reply p 35.

Labour Market Analysis

The respondent relies on the Labour Market Analysis by Rehab Co dated
[48] AALD-1 p 29.
21 September 2022[48]. It refers to Ms Nzobakenga working 29 hours per week pre-injury with pre-injury average weekly earnings (PIAWE) of $761.15. It states that Ms Nzobakenga was not interviewed for the purpose of the report.
The report refers to Dr Stephen’s opinion in his report dated 8 March 2021 that from a purely orthopaedic point of view Ms Nzobakenga is fully fit for her pre-injury employment.
The author of the report identifies work, such as an egg factory worker such as an egg sorter and grader earning between $27 to $28 per hour. The job description is set out and the functional demands of the position, which include light to medium physical demands, standing constantly, operating machinery, walking about the machinery, squatting, crouching and kneeling. It was also noted that bending might be involved occasionally to lift ingredients or finished products and occasional lifting or carrying. In addition, there may be computerised control systems and mental skills required including practical and technical skills.
However, there is a section of the report compiled from conversation with Pace Farm which states bending and twisting is constantly required at waist level to assist moving the eggs from the conveyor belt as part of the sorting and grading process. Details from two other egg producing operations are included but all include similar physical requirements. All state they can accommodate a worker with limited English skills and they can have translated any safety information into a worker’s chosen language. They were not asked specifically about Kirundi language, which is spoken in Burundi.

Submissions

Mr Hickey in his submissions referred to Ms Nzobakenga’s statement, in particular her ongoing complaints since the treatment was ceased by the insurer. She states that standing, sitting, walking for longer than 15 minutes and tasks involving bending down all affect her back pain making it worse. Mr Hickey referred to her statement that the insurer had not provided her with re-training to do the jobs the insurer suggested in product assembly and tube stock assistant.
He also read out the medical evidence, which I have summarised earlier in these reasons. He submitted that Dr Clarke examined Ms Nzobakenga just before the insurer’s declinature. Dr Clarke found sacroiliac joint pain and performed an injection in April 2021. Mr Hickey noted that while Dr Clarke found some pain behaviours he did not doubt that she did suffer from pain. Mr Hickey acknowledged that throughout this period Dr Tyagi did certify
Ms Nzobakenga as having some work capacity with restrictions on pushing/pulling from 12 to 15 kg.
Mr Hickey referred to Dr Walls’ opinion that Ms Nzobakenga’s limited English ability was limiting her treatment and would limit her work capacity. Her lack of English also affected his examination of her as she could not comprehend instructions. Mr Hickey submitted that the physiotherapy reports dated 17 February 2020 and 3 June 2020 also referred to significant language barriers and attempt to work with an interpreter was unsuccessful.
Mr Hickey submitted that Dr Hopcroft’s opinion that the L3 endplate deformity was more consistent with a fracture rather than a Schmorl’s node was significant and that the doctor had explained this was because it is highly unusual for only one Schmorl’s node to be present and that there was some osteoedema at L3. He also relied upon Dr Hopcroft’s observations of Ms Nzobakenga in June 2022 as supporting a finding of ongoing symptoms and limitations and concerns about her developing a significant flexion deformity. Mr Hickey relied on Dr Hopcroft’s final opinion that due to her physical issues and lack of English skills Ms Nzobakenga realistically did not have a capacity for employment.

It was also submitted that Dr Kuppusamy’s certificates and report also support that
Ms Nzobakenga has no capacity for employment and that she walked with a right sided limp and had back and buttock pain.
He submitted that Ms Nzobakenga should be considered as in reality having not marketability of her labour and should be found to have no capacity from the end of the section 37 period. He referred to restrictions with sitting, standing and moving about and lack of English. It is submitted that egg sorting was not suitable according to Dr Hopcroft due to such physical restrictions which are involved in egg factory work as set out in the Labour Market Analysis report. It was submitted that even if the employer could accommodate her lack of English, she would have to learn various skills to perform the work as an egg sorter.
It was submitted that the requirements as set out in the Labour Market Analysis would exclude Ms Nzobakenga due to repetitiveness, standing, lifting and combined with her lack of English. Mr Hickey referred to Wollongong Nursing Home Pty Ltd v Dewar[49] and submitted that it is difficult to find a real job that she could do. Mr Hickey referred to the terms of the definition of “suitable employment”. It was submitted the consideration of the details in the medical information also includes the fact she has diabetes and has suffered fatigue and sleep issues are also factors that need to be taken into account.
[49] [2014] NSWWCCPD 55, Dewar.
It was submitted that Dr Stephen’s view that she should have recovered within two to three months is a “limited” approach. It was argued that Dr Stephen’s opinion that she is fit for her pre-injury employment cannot be the case because all of the treating doctors accept that she does have ongoing symptoms.
Mr Hickey relied on Chea v Woolworths Group Limited[50]a decision of Member McDonald finding that the Commission has jurisdiction to make an award under s 38 of the 1987 Act.
[50] [2022] NSWPIC 26, Chea.
Mr Stockley argued that Dr Hopcroft is an outlier as a number of treating doctors have expressed difficulty in diagnosing Ms Nzobakenga’s injury. It was submitted that Dr Tyagi on 26 March 2019 had the assistance of a telephone interpreter. It was noted the only injury recorded was a tender lump on the back of the right gluteal region and right hip pain. She was walking with a limp. He also noted that on 1 May 2019 the pain was improving but not gone. It was submitted that nowhere in these treating consultations with Dr Tyagi is there a reference to thoracic pain.
Mr Stockley submits Dr Summersell’s reports are significant and in the report of
22 November 2019 the doctor notes the symptoms can be more significant for a few days and then be gone for a week or so and that Ms Nzobakenga felt she was getting better over time with her rehabilitation program. Mr Stockley noted this consultation was conducted with the benefit of a phone interpreter. He noted at the next consultation she localised more of the symptoms with the right chest region and right loin/iliac crest and he suggested she see a spine specialist.
Dr Clarke expressed the opinion he did not think there was a biomedical issue and the issue was psychosocial problem which Mr Stockley says has not been addressed. Counsel submitted that Dr Hopcroft’s view that there was no non-physical component was not consistent with the treating medication.
It was submitted by Mr Stockley that she was certified continually by Dr Tyagi of having some capacity for work yet Dr Kuppusamy found no capacity and there is no explanation for such a change in certification. Counsel submitted this is three years post injury and the initial presentation had been for a localised injury that was on the mend. It is submitted that this is an evidentiary conflict in Ms Nzobakenga’s case that goes unanswered.
Mr Stockley says when considering s 32A one of the considerations as to what suitable employment is, includes occupational services which have been provided to the worker. It is noted in the rehabilitation report that she has no interest in improving her English skills. He submitted there is no explanation as to why she has refused that.
It was submitted that Ms Nzobakenga’s partner also has a workers compensation claim and this is evident from the incorrect certificate included in her late document application and it is unsatisfactory that he has been used to speak for her in many of the consultations.
The respondent submits that the Commission should not find she has no capacity for employment under ss 37, 38 and 32A of the 1987 Act. It was noted she had sat for two hours during the hearing so at the very least some sedentary capacity even at a basic part time level.
It was submitted by the respondent there are difficulties in diagnosis and assessment and that Dr Hopcroft’s theory is difficult to accept and understand and fails to explain why bony injury to two levels of her spine went unnoticed for months. It was also submitted that changes on radiology for a person of 50 years are not extraordinary. It was argued that
Dr Hopcroft’s opinion should be rejected. It was also submitted that the early medical opinion was in keeping with that of Dr Stephen of improvement. Mr Stockley submitted that
Ms Nzobakenga has a capacity for work as supported by Dr Tyagi and there is no explanation for the change in certification of her capacity.
It was submitted that Lee v Bunnings Group Pty Ltd[51] applies as the Commission cannot consider her entitlement to weekly compensation beyond 130 weeks.
[51] [2013] NSWWCCPD 54, Lee.
Mr Hickey in reply said there is an application made to the insurer for payments beyond 130 weeks dated 20 June 2022[52] which meets requirement in s 38 of the 1987 Act. He pointed out that this application was served on the insurer by letter dated 13 July 2022[53] and so complies with s 38(3)(a). Mr Hickey submitted Lee is no longer a preventative authority as there has been a denial of liability, the Commission has jurisdiction as discussed in Chea.
[52] ARD p 233.
[53] ARD p 226.
Mr Hickey sought for a finding of no current work capacity to be made.

DETERMINATION

The s 78 notice dated 29 April 2021 states the weekly payments of compensation will end from 21 June 2021. The review notice dated 2 December 2021 maintained this declinature. On 15 February 2022 the insurer issued a review notice relating to the calculation of the PIAWE figure which was stated to be $773.96 with the rate subject to an indexation review[54].
[54] Reply p 11.
The first period of compensation claimed by Ms Nzobakenga relates to the period
22 April 2020 to 22 June 2021 when the respondent was paying weekly compensation but it is claimed there was an underpayment because the respondent did not adjust the PIAWE figure to reflect indexation under s 82D of the 1987 Act. In Ms Nzobakenga’s late documents is a schedule of the indexed PIAWE figures. The respondent has not in these proceedings questioned the mathematics of this calculation, the figures are based on the original PIAWE figure of $773.96.
Ms Nzobakenga’s late documents also contains an Amended Wages Schedule detailing the underpayment in the period 22 April 2020 to 22 June 2021. As the respondent has not disputed this calculation and noting their dispute notice acknowledged there was to be indexation of the PIAWE, it follows that there should be an award in Ms Nzobakenga’s favour in accordance with this schedule for this period.
The second aspect of the weekly compensation claim is for the period 23 June 2021 to
21 September 2021. This period falls within s 37 of the 1987 Act. The rate claimed by
Ms Nzobakenga is $640.80 being 80% of the indexed PIAWE figure of $801. This is the applicable rate for a worker who has no current work capacity.
The third period of the claim is pursuant to s 38 of the 1987 Act. Again Ms Nzobakenga claims she has no current work capacity in this period from 22 September 2021 to date and continuing.
The reason for the insurer’s declinature is based upon Dr Stephen’s opinion that
Ms Nzobakenga has recovered from the effects of the injuries sustained on 26 March 2019 and is fit for her pre-injury duties.
Notwithstanding that Dr Tyagi issued many certificates indicating that Ms Nzobakenga had capacity for some employment and refers to some improvement in her condition, by
15 October 2019 she did refer Ms Nzobakenga to Dr Summersell, orthopaedic surgeon. I find this referral supports the argument that Ms Nzobakenga had not recovered from the effects of her workplace injury in the time frame postulated by Dr Stephen. Also at the time of this referral Dr Tyagi advised that Ms Nzobakenga walked with a limp. This was at a point seven months post- accident, whereas Dr Stephen opined she would have recovered from the effects of the injury within two to three months.
I find in light of such physical presentation I cannot accept the opinion of Dr Stephen because it is based on an incorrect premise. I find Ms Nzobakenga had not recovered from the effects of the injury within this time frame. Dr Summersell thought she would improve over time and recommended continuation of the rehabilitation program. Again this provides evidence that for “all intents and purposes” she had not recovered as Dr Stephen opines.
However, it is apparent from a consideration of all of the treating medical evidence that a precise diagnosis for Ms Nzobakenga’s symptoms was difficult for her doctors to ascertain. Nowhere in the early medical evidence is there reference to the fractured right 9^th rib. Yet this was detected on the bone scan performed on 3 March 2020. Dr Summersell found she had symptoms to the right posterolateral chest region and did not suggest an alternate cause apart from the fractured rib. Dr Siu also noted this finding from the bone scan and found some focal tenderness in the right lateral chest wall. He expressed the opinion that her reported pain from her work accident correlated with such a rib fracture. Dr Clarke also believed her chest symptoms could be from the fractured rib.
Even though Dr Stephen was aware of the bone scan finding, and he notes that she did sustain a significant contusion to the right lower ribs and Ms Nzobakenga complained to him of diffuse tenderness on the right side from the lower ribs downwards, he does not appear to have considered whether she did fracture her right 9^th rib in the fall. I am satisfied that it is more likely than not on the balance of probabilities that Ms Nzobakenga did sustain a fracture to her rib in the workplace fall.
Apart from the rib fracture, the doctors had difficulty pinpointing the cause of
Ms Nzobakenga’s pain in her back. The radiologist who performed the CT lumbar scan on
17 April 2019 raised the possibility that there could be a fracture of the L3 endplate rather than a Schmorl’s node. Dr Stephen expressed the view he had never experienced a Schmorl’s node being caused by trauma. However, the radiologist did not suggest that trauma produced a Schmorl’s node rather that the L3 deformity was actually a fracture.
Dr Summersell suggested she had a sprain to her lumbar spine from the fall, but he did not express a concluded view about the cause of her back pain and recommended a referral to a spine specialist. Dr Siu believed clinically the back pain originated from the sacroiliac region and on the bone scan there was some mild activity in the sacroiliac joints, which he found suggestive of low-grade arthritis. Dr Siu did not think the lumbar spine was the source of Ms Nzobakenga’s symptoms. However, Dr Clarke did undertake injections of the sacroiliac joints but due to their being no analgesic effect he discounted that area as being the source of pain.
Dr Clarke proposed performing a series of diagnostic blocks to identify the source of pain. However, the outcome of the same, if they were undertaken, is not known. He also queried if Ms Nzobakenga had diabetic neuropathic pain due to her diabetes being poorly controlled and also whether she had depression. Again there is no mention of further tests being undertaken to exclude or confirm such factors.
However, none of the treating doctors did not believe that Ms Nzobakenga was still suffering the physical effects of the workplace fall. Dr Clarke walked with her and observed she walked with a slow antalgic gait. Limping has been a constant feature of her presentation since the accident.
I find Dr Walls’ reports do not assist because of the issues he expressed due to communication difficulties and also because he seemed to have a history that
Ms Nzobakenga was still performing some work for the respondent. This led him to recommend maintaining the certification of capacity for some work. I find I cannot accept this view about her work capacity because of these issues. Also, his reports are before the period for which the claim is made on the basis of Ms Nzobakenga having no current work capacity.
However, Dr Walls did advise that pre-injury work was not appropriate. He seemed to accept that Ms Nzobakenga did suffer from ongoing back pain because he discusses postures that would be likely to aggravate her back pain. He recommended she avoid heavy work, lifting, forceful movements, awkward postures such as bending and stooping. He did recommend tube stock nursery assistant but stipulated the work benches needed to be at a correct height and not particularly paced. He suggested a work trial. I note no work trial has been arranged.
All of the aspects of Dr Hopcroft’s opinion are somewhat difficult to understand. He recommended thoracic radiological studies be undertaken to exclude a significant cause from the thoracic spine. However, once he had received that scan dated 14 April 2022 he focuses more on the L3 situation. He quotes the radiologist’s finding that there is a suggestion of an old minor anterior wedge compression fracture of the T6 vertebral body. However, he does not go further and state this was caused by the workplace fall.
Of concern are his comments about Ms Nzobakenga’s deterioration in June 2022, when he did not examine her but observed her when she accompanied her husband. He queries whether spontaneous osteoporotic fractures have developed and recommends further X-rays to be compared with the previous X-rays. I am not prepared to make a finding that such fractures have developed without further testing, given Dr Hopcroft at this stage is only speculating.
However, notwithstanding I have found that I cannot accept all of Dr Hopcroft’s opinion about Ms Nzobakenga’s condition, in relation to the lumbar spine the doctor does explain why he believes the endplate of the L3 was fractured in the fall. He finds the presence of osteoedema at L3 is indicative of acute change having occurred at this site. The MRI scan dated 15 April 2020 did identify very mild surrounding osteoedema. He also explained it is unusual to have one Schmorl’s node as he says it would be usual to have more than one node present. Finally, Dr Hopcroft says such a fracture is consistent with her clinical presentation. Because Dr Hopcroft is the one doctor who has had the benefit of considering all the treating medicine and Dr Stephen’s opinion and he has given the most detailed reasons for his finding about the L3 level, I consider that his opinion should be accepted and preferred to that of Dr Stephen.
Even though the diagnosis of her back symptoms is not clear, what seems to be the case is that from the outset Ms Nzobakenga walked with a limp and at least from April 2019 she was complaining of lower back pain, which Dr Tyagi found radiated to the right gluteal region, thigh and leg. Dr Summersell also found she had mainly right sided pain in her lower back, down her thigh. I find that given Dr Tyagi and Dr Summersell found the back pain to be right sided is consistent with Ms Nzobakenga falling on her right side. The insurer did not place injury per se in issue but declined liability on the basis that the effects of the injury had resolved. I have rejected that assertion because I find the treating medical evidence shows she had not recovered as suggested by Dr Stephen. Mr Stockley, however, did submit that it was important for Ms Nzobakenga to establish what is the nature of her injury and he submitted that due to the uncertainty about her complaints Ms Nzobakenga has not done so.
Dr Siu advised her pain had a mechanical flavour but was focused on the sacro-iliac joint area. Dr Hopcroft has explained why he thinks the most probable scenario is fracture to L3. It also could be there is an element of both. This is a claim predominantly for weekly compensation where it seems investigations were ongoing but affected by Covid-19 situation precluding some in person examinations and there have been some difficulties with language. It is reasonably clear the fall was severe enough to cause a fracture to
Ms Nzobakenga’s right 9^th rib, haematomas on her right thigh/buttock area and some lumbar symptoms, with limping. Notwithstanding the lack of precision in diagnosis, I find the evidence does support Ms Nzobakenga having sustained an injury to her back which has affected her work capacity.
In the period 23 June 2021 to 21 September 2021 s 37 of the 1987 Act applies. It is necessary to ascertain whether Ms Nzobakenga had no current work capacity which is defined (in Schedule 3, Part 9 (2) of the 1987 Act) as a present inability arising from the injury to return to work either in the pre-injury employment or in suitable employment.
Apart from Dr Stephen, whose opinion I have rejected, no other doctor has found she could perform her pre-injury work. Dr Walls does not hold that view.
“Suitable employment” is defined in s 32A of the 1987 Act and requires me to take into account the nature of her incapacity and the medical information and certifications, as well as her age, education, skills and work experience, occupational rehabilitation services and injury management plans.
Ms Nzobakenga was 49 in the period in question, she is now aged 51. Her education was to age 18 in Burundi and thereafter she worked as a farm labourer in Burundi. She cannot read English and says she has a very limited ability to speak and understand English. She migrated to Australia in 2007 and started work with the respondent picking berries and fruit in 2013. This has been her only employment in Australia. I find she has limited skills and work experience and her lack of English skills is a significant factor when considering what is suitable employment for her. There have been no injury management plans or work trials. There has been a Labour Market Analysis.
However, I find I cannot place weight on the conclusions in the Labour Market Analysis for many reasons, mainly because the job descriptions and functional demands of the roles referred to include physical demands which involve constant standing, walking around machinery, squatting, crouching, some lifting, bending and twisting. Dr Walls states work factors that would aggravate her back include work relating to lifting, bending and stooping. Dr Hopcroft who first examined her in October 2021 found she struggles with flexion, extension and rotation manoeuvres of her spine. I find the work in an egg factory is not suitable employment because these physical limitations are involved to varying degrees in each of the egg farms interviewed.
Also while the operators of the various egg farms state they can have instruction manuals translated, I consider they have not been adequately appraised of the fact that
Ms Nzobakenga has very limited English skills. I have concerns about her ability to learn to operate machinery from manuals as she has had no experience in the past with machinery and in person instruction may well be required and her native language is not a common language and there is no information in the Labour Analysis report regarding availability of a Kirundi interpreter.
In addition, I note Ms Nzobakenga was not interviewed for the report and it was prepared based upon Dr Stephen’s assessment that she was fit for pre-injury employment, which I have rejected. The author of the report suggests work as an egg factory worker is suitable employment however, I find the physical aspects of the job are not within her capacity.

Dr Walls had canvassed work as a tube stock nursery assistant but he stipulated that the work benches need to be of a correct height and the work could not be paced and no continuous stacking to pallet. He suggested a work trial but this did not take place. I find that without such a work trial, Dr Walls suggestions remain just that, a suggestion, and one cannot conclude that type of work would be suitable employment without knowing if in fact
Ms Nzobakenga could perform such work.
Dr Hopcroft in his report dated 23 June 2022 found Ms Nzobakenga would be fit for sedentary work only. However, it is very difficult to conceive of a real job that
Ms Nzobakenga could perform sitting with her level of education, skills and language barriers. Mr Hickey relied on the final view of Dr Hopcroft and the assessment of Dr Kuppusamy that Ms Nzobakenga had no current work capacity, whereas Mr Stockley was critical of Ms Nzobakenga’s case because there was no explanation from the change in certification from Dr Tyagi to that of Dr Kuppusamy. Despite Dr Tyagi certifying Ms Nzobakenga having capacity for some work in most of her certificates she placed a restriction of 12 to 15 kg push/pull limit. She also recorded that in many of the consultations Judi from the employer was present, yet there do not seem to be any plans having been put into place to trial Ms Nzobakenga’s work capacity with the employer on lighter duties. For instance, there was no return to work on alternate duties.
Taking into account all the matters set out in the definition of suitable employment I find that Ms Nzobakenga in the period from 23 June 2021 to date and continuing is not suited for employment. I find that she does not have a current work capacity in suitable employment in the relevant period to date and this is likely to continue indefinitely based upon the current medical information before the Commission.
I note Mr Stockley submitted that because Ms Nzobakenga sat during the arbitration hearing she would have capacity for sedentary work. I do not accept that it is appropriate I draw an inference from her presentation at the hearing when she was not questioned about the same. I do not know if she had taken medication or the effect on her subsequently. It was also submitted that it was not satisfactory that her husband was used as an interpreter at many of the medical consultations. I agree this is not desirable but it appears various doctors including the respondents had to engage the assistance of her husband due to no official interpreter being available. The other criticism raised concerns Ms Nzobakenga’s refusal to undertake further English tuition. Certainly it would be of assistance to her in many facets of her life to try to learn English, however I consider this is not a disentitling factor.
The respondent argued that because of the decision in Lee the Commission cannot make an order under s 38 of the 1987 Act. However, I accept the argument of Mr Hickey and find that Lee was determined before the legislative amendments made by the Workers Compensation Legislation Amendment Act 2018 (the 2018 Amending Act) which removed from s 43(1) the provision that work capacity decisions are final and binding on the parties and not subject to appeal or review except under s 44BB or judicial review by the Supreme Court. As well, other amendments were made at that time such as omitting the former s 43(3) and omitting Part 3, Division 2, Subdivision 3A about review of work capacity decisions and repealing the note in s 105 of the 1998 Act relating to the restriction of the Commission’s jurisdiction to determine any dispute about a work capacity decision. Lee was determined before these amendments were made and at a time when there was a different entity to review work capacity decisions.
In Ms Nzobakenga’s case she seeks an order pursuant to s 38(2) of the 1987 Act on the basis that she has no current work capacity and is likely to continue indefinitely to have no current work capacity and so is entitled to compensation after the second entitlement period. While the insurer’s dispute notices dated 29 April 2021 and 2 December 2021 do not refer to s 38 they do dispute liability on the basis of Dr Stephen’s opinion that she was fit for pre-injury duties and “for all intents and purposes” the effects of the injury had resolved. These dispute notices are work capacity decisions. The 2018 Amending Act enacted s 78 of the 1998 Act which included in sub-section 2 the provision that an insurer’s decision notice can involve both a liability dispute and a discontinuation or reduction of weekly compensation. As a further example of the change in legislative regime since Lee, the 2018 Amending Act inserted s 81 and s 83 in the 1998 Act to enable a stay of a work capacity decision where a dispute for determination is referred to the Commission. These sections certainly include jurisdiction for the Commission to determine disputes that have been referred to it about an insurer’s decision to discontinue or reduce weekly compensation payments.
In summary, I find that the Commission has jurisdiction to make findings about work capacity and orders for payment of weekly compensation relating to the s 38 period. Mr Hickey submitted that Ms Nzobakenga’s solicitor had served a notice meeting the requirement in
s 38(3)(a), however s 38(3) is not the relevant provision in Ms Nzobakenga’s case because she has not returned to work for 15 hours per week. The only basis for her obtaining an award of weekly compensation under s 38 is if she meets s 38(2), which I have found she has.
Accordingly I make the following orders:
(a) Pursuant to s 37 and s 82D of the 1987 Act the respondent is to pay the applicant weekly compensation as follows:
(i) from 22 April 2020 to 30 March 2021 at 80% of the indexed pre-injury average weekly earnings rate of $795;
(ii) on 31 March 2021 at 80% of the indexed pre-injury average weekly earnings rate of $113.57;
(iii) from 1 April 2021 to 6 April 2021 at 80% of the indexed pre-injury average weekly earnings rate of $686.57, and
(iv) from 7 April 2021 to 21 September 2021 at 80% of the indexed pre-injury average weekly earnings rate of $801.
(b) Pursuant to s 38 and s 82D of the 1987 Act the respondent is to pay the applicant weekly compensation at the rate of 80% of the indexed pre-injury average weekly earnings from 22 September 2021 to date and continuing.
(c) The respondent is to have credit for any payments made in the above mentioned periods.
(d) The respondent is to pay the applicant’s treatment expenses pursuant to s 60 of the 1987 Act on production of accounts, receipts and or/Medicare Notice of Charge.

[2023] NSWPIC 11

11 January 2022