Patel v Philip Leong Stores Pty Ltd
[2021] NSWPIC 493
•1 December 2021
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Patel v Philip Leong Stores Pty Ltd [2021] NSWPIC 493 |
| APPLICANT: | Dhavalkumar Patel |
| RESPONDENT: | Philip Leong Stores Pty Ltd |
| PRESIDENT’S DELEGATE: | Belinda Gamble |
| DATE OF DECISION: | 1 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Applicant was a storeman who suffered accepted lower back injury and developed secondary psychological condition; work capacity decision issued by insurer identified suitable work as customer service management, catering manager and concierge; whether the applicant was able to work in suitable employment having regard to the section 32(A) of the Workers Compensation Act 1987; Held - weight of medical opinion supported that the applicant was not able to undertake the roles identified in work capacity decision; evidence supported the applicant had no current work capacity; work capacity decision set aside; award for the applicant in relation to payment of weekly benefits compensation. |
| DETERMINATIONS MADE: | 1. The Work Capacity Decision dated 29 July 2021 is set aside. 2. The respondent is to pay the applicant weekly compensation benefits from 5 November 2021 to date and continuing at the rate of $1,386.25 per week pursuant to section 37 of the Workers Compensation Act 1987. |
BACKGROUND
On 12 July 2019 Dhavalkumar Patel sustained an injury to his lumbar spine as a result of the nature and conditions of his employment as a Storeperson for Philip Leong Stores Pty Ltd (the respondent). Mr Patel was undertaking work at the Woolworths Erskine Park Distribution Centre. Mr Patel developed a secondary psychological condition.
Following his injury, Mr Patel received weekly benefits compensation paid in accordance with sections 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act).
On 29 July 2021 the respondent issued a notice under section 43(1) of the 1987 Act and section 80 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The notice advised that the respondent has made a Work Capacity Decision under sections 43(1)(a), (b), (c) and (d) of the 1987 Act (the WCD). In the WCD the respondent was of the view that Mr Patel had a current capacity to work fulltime (40 hours per week) in suitable employment as a customer service manager, catering manager and concierge. The respondent stated Mr Patel could earn up to $1,337 per week in this suitable employment, and, as a result Mr Patel’s entitlement to weekly benefits compensation was to be reduced to $49.25 per week. The WCD came into effect on 5 November 2021.
On 8 November 2021 Mr Patel lodged an application challenging the WCD. Mr Patel seeks an order that he be paid weekly benefits compensation from 5 November 2021 to date and continuing pursuant to section 37 of the 1987 Act. For the reasons set out below it is appropriate that the Commission make such order.
PROCEDURE BEFORE THE COMMISSION
The parties attended a telephone conference before me, as a delegate of the President, on 24 November 2021. Mr Luke Morgan of counsel appeared for Mr Patel instructed by Turner Freeman Lawyers. The respondent was represented by Ms Stephanie Dunn from BBW Lawyers.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
ISSUE FOR DETERMINATION
The issue in dispute is whether the applicant is able to return to work in suitable employment, having regard to the roles identified by the respondent in the WCD.
There is no dispute between the parties that:
(a) Mr Patel is not able to return to his pre-injury employment; and
(b) that Mr Patel’s pre-injury average weekly earnings (PIAWE) is $1,732.81.
DOCUMENTS
The following documents were in evidence before the Commission and have been taken into account by me in making this determination:
(a) Application for Expedited Assessment, and attachments (the Application); and
(b) Reply, and attachments.
EVIDENCE
In a statement dated 8 November 2021, Mr Patel gave evidence of the injury to his lower back which developed as a result of his work as a storeman, which involved repetitive lifting, pushing and pulling of items that weigh up to 20 kilograms. Mr Patel stopped working in August 2019 due to ongoing pain in his lower back.
On 1 August 2019, Mr Patel saw Dr Lim, General Practitioner. Dr Lim was of the opinion that Mr Patel was unfit for work and referred him for MRI scan, and consultation with Dr Peter Khong, Neurosurgeon. Dr Lim recommended that Mr Patel commence physiotherapy (Application, page 367).
On 3 August 2019, Mr Patel underwent an MRI scan of his lumbosacral spine which showed a broad-based disc bulging at the L3/4 level with loss of disc height and disc desiccation of L3/4 (Application, page 391).
On 3 September 2019 Mr Patel saw Dr Ian Smith, Injury Management Consultant. Dr Smith opined:
“At most, Mr Patel has a simple thoracic strain injury, mainly on left-hand side. There is no evidence of radiculopathy or discogenic injury in the lumbar spine. On balance he is unfit for his preinjury duties. However, he is perfectly capable of working full time in a sedentary role wherein he can alter his posture according to his level of symptoms and without manual demands. In terms of the current duties on offer, he is perfectly fit to commence the graded retuned to work plan, number 1 as provided by Woolworths commencing on four hours, five days per week” (Reply, page 5).
In a report dated 4 October 2019, Dr Khong noted that Mr Patel had presented with two months of lower back pain stemming from his work which required a “fair amount” of heavy lifting. Dr Khong recommended Mr Patel continue with physiotherapy and oral analgesia (Application, page 65).
On 17 January 2020 Mr Patel saw Dr Khong for review. In a report of the same date,
Dr Khong recorded that Mr Patel’s lower back pain had continued to improve. Dr Khong noted that Mr Patel planned to return to work in February 2020. Dr Khong recommended
Mr Patel engaged in light duties and reduced hours initially, gradually increasing his return to work as tolerated (Application, page 61).On 20 February 2020 Dr Lim issued a Certificate of Capacity in which he certified Mr Patel as having capacity to undertake office work for eight hours per week with a lifting restriction of
2 kilograms and a standing tolerance of one hour (Application, page 192).In March 2020, Mr Patel returned to work. Unfortunately, Mr Patel was only able to work for one day and he was unable to continue due to pain (Application, page 2). Mr Patel said he was currently in more pain since attempting to return to work (Application, page 318).
Mr Patel has not undertaken any work since March 2020.On 5 March 2020, Mr Patel attended on Dr Sebastian Calvache-Rubio, General Practitioner. Dr Calvache-Rubio certified Mr Patel as being unfit for work (Application, page 315). Mr Patel has continued to be certified unfit for work by his general practitioners to date. He has continued to receive physiotherapy treatment.
In or around April 2020, Dr Calvache-Rubio recorded that Mr Patel was in distress as a consequence of his workplace injury and required psychological support (Application, page 311). Mr Patel was referred to see Mr Carl Nielsen, Psychologist and Dr David Kumagaya, Consultant Psychiatrist.
On 7 September 2020, Dr Kumagaya diagnosed Mr Patel with adjustment disorder with depressed mood and recommended he undergo psychological therapy. Mr Patel was prescribed melatonin. Mr Patel continued to consult with Dr Kumagaya.
In a report dated 12 February 2021 Dr Khong said:
“Mr Patel continues to complain for lower back pain. This is likely coming from the degenerative disc disease at L3/4. I explained to him that if his pain becomes intolerable, I would recommend a fusion at L3/4, He would like to persist with non-operative management for now. I would recommend physiotherapy” (Application, page 24).
In a report dated 4 April 2021 Dr Kumagaya opined that given the severity of Mr Patel’s depressive symptoms he has not demonstrated capacity to work (Application, page 85).
On 4 May 2021 Dr Richa Rastogi, Consultant Psychiatrist, examined Mr Patel via telehealth. In her report of the same date, Dr Rastogi diagnosed Mr Patel as suffering from chronic adjustment disorder with anxious mood and distress.
Dr Rastogi noted that Mr Patel’s prognosis was dependent upon physical functioning improvement and vocational support in providing alternative suitable placement. Dr Rastogi opined that Mr Patel had no capacity to work currently and his future options were limited and bleak. Dr Rastogi said there were psychological impediments in addition to physical restrictions that impacted Mr Patel’s ability to return to work (Application, page 80).
On 5 May 2021 Mr Patel attended a telephone conference with Associate Professor Saji Damodaron, Consultant Psychiatrist. In his report dated 14 May 2021, Associate Professor Damodaron opined that Mr Patel was suffering from adjustment disorder with mixed general anxiety and depressed mood along with chronic pain disorder associated with his general medical condition. Associate Professor Damodaron recorded that Mr Patel had been seeing a psychiatrist and a psychologist on a regular basis and recommended that he trial antidepressant medication (Reply, page 34).
In relation to Mr Patel’s capacity for employment, Associate Professor Damodaron said:
“Purely from a psychiatric point of view, I am of the opinion that Mr Patel has a capacity for alternative duties with another employer up to 20 hours per week within his physical limitation in the area of office-based duties or duties where he is able to periodically change his position and manage his physical demand. He may require targeted educational and training support to secure employment in the area of office-based or clerical duties where he is flexibly able to manage the work and the work demand in a self-based manner” (Reply, page 34).
Mr Patel was referred to see Dr Horace Ting, Occupational Therapist/ Vocational Assessor, for the purposes of an opinion as to his capacity to undertake work.
In a report dated 17 May 2021 Dr Ting identified the roles of customer service manager, catering manager, and concierge as being potentially suitable employment for Mr Patel.
Dr Ting assessed that Mr Patel could potentially earn $1,337 in the role of catering manager. It is the report of Dr Ting upon which the respondent primarily based the WCD. It is worthwhile setting out some of the content of the report.In his report Dr Ting stated:
“When Mr Patel becomes fit, considering his transferable skills, vocational aptitudes and functional capabilities, positions that are suitable for him may include, but not limited to the following occupations Customer Service Representative, Catering/ Events Manager and Concierge” (emphasis added) (Application, page 36).
Dr Ting said when Mr Patel became “work ready” the abovementioned roles would be suitable (Application, page 39).
Under the heading “Work Readiness” Dr Ting stated:
“Mr Patel is certified to have no capacity for work and is not work ready at this stage. His ongoing treatment needs, physical restrictions, psychological difficulties, cognitive sequelae, persistent pain, disturbed sleep pattern and restricted access to the open labour market have resulted in his low level of readiness for work…
Mr Patel demonstrates a residual physical capacity to perform sedentary work for eight hours, five days per week or light work for six hours, five days per week in selective work environments” (emphasis added) (Application, page 35).
Dr Ting opined that Mr Patel was not shown to be work ready and did not demonstrate a real earning potential (Application, page 38). Dr Ting recommended a number of rehabilitation and vocational services to improve Mr Patel’s work readiness.
On 24 May 2021, Dr Mohammed Assem, Rehabilitation Specialist, provided a report following an assessment of Mr Patel via Zoom. Dr Assem opined:
“Mr Patel is fit for suitable duties commencing four hours per day, four days per week in a position where he is able to sit, stand and change his posture when needed. He should avoid repetitive bending or prolonged static back flexion. He will be able to lift items repetitively up to 5kg and occasionally up to 10kg. The services of a rehabilitation provider will be necessary to explore suitable vocational options within the restrictions specified above. As his condition improves, his hours and physical restrictions can be incrementally upgraded according to tolerance” (Application, page 69).
Dr Assem noted that Mr Patel had remained off work for the past two years. Dr Assem said although Mr Patel was fit for suitable duties at reduced hours, given his ongoing subjective complaints and self-reported limitations, he would have difficulty working in a regular and reliable manner (Application, Page 71).
On 15 June 2021 a detailed vocational assessment was undertaken by IPAR Rehabilitation Services. IPAR’s vocational assessment report concluded that no job options could be identified as appropriate for Mr Patel to pursue based on his physical and psychological tolerances, transferable skills, previous education and work experience (Reply, page 7).
On 23 July 2021, Dr New, Orthopaedic and Spinal Surgeon, said that Mr Patel had significant lumbar spondylosis, particularly at L3/4 and substantial disturbance in his normal gait. Dr New said that Mr Patel would obtain functional gain from paramedical treatment including physiotherapy, hydrotherapy and pilates (Application, page 44).
On 29 July 2021 the respondent issued the WCD.
On 30 July 2021, Dr Ting provided a further report. Dr Ting confirmed his opinion that
Mr Patel does not demonstrate a real earning potential despite showing a residual physical capacity for work (Application, page 25).
In a report dated 8 September 2021 Dr Lim said:
“He [Mr Patel] does have alternate skills to perform some office-based work. He may return to some alternate work with workplace modifications should his chronic back pain resolve. Unfortunately, he is prevented from doing so currently due to his psychological state. He requires retraining however he is not well enough to psychologically undertake this. He reports benefit from physiotherapy but this only lasts 1-2 days. Unfortunately, this does not appear to be the long-term solution. In the longer term, Dr Khong has recommended a spinal fusion should his symptoms and incapacity persist. He will not return to work as a storeman, or alternate physical work. He is suffering from depression and will require ongoing treatment for this, as he is not psychologically well to return to an office at his stage” (Application page 19).
REASONS
A dispute concerning work capacity requires consideration of whether a worker has current work capacity or no current work capacity.
Clause 9 of Schedule 3 of the 1987 Act sets out the meaning of “current work capacity” and “no current work capacity” as follows:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The term “suitable employment” is defined in section 32A of the 1987 Act as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and(iv) the worker's place of residence.”
The respondent’s WCD outlined three positions it assessed as suitable employment for
Mr Patel. The positions identified in the WCD are those recorded in the report of Dr Ting dated 17 May 2021.In this matter the fundamental issue in dispute is whether Mr Patel is capable of engaging in the suitable employment specified in the WCD having regard to the medical information (section 32A(a)(i) of the 1987 Act). Mr Patel is a reasonably young man, 36 years old at present. There is no dispute that Mr Patel does not have the education, skills and work experience to engage in the roles identified in the WCD.
Mr Patel submitted that the weight of medical evidence supported that he had no capacity to engage in the suitable employment identified. Mr Patel submitted his capacity for work had to be assessed with regard to the evidence regarding his psychological decompensation.
The respondent submitted that Mr Patel had a clear residual capacity to work. The respondent submitted that if I was not satisfied Mr Patel had the capacity to engage in the work identified in the WCD on a full time basis, I should find that he has the capacity to work 20 hours per week in office-based duties, in accordance with the opinion of Associate Professor Damodaron.
Firstly, it is necessary to consider whether Mr Patel is capable of undertaking the roles identified in the WCD having regard to the nature of his incapacity and the details provided in medical information.
I accept Mr Patel’s opinion that the weight of medical opinion supports that he is not able to undertake the roles identified in the WCD.
Whilst the respondent seeks to rely on the opinion of Dr Ting to support that Mr Patel has a residual capacity to work in the positions identified, it is quite clear that Dr Ting’s opinion is contingent on Mr Patel becoming work ready. Dr Ting clearly stated that Mr Patel’s was not ready for work based on his physical restrictions, psychological difficulties, cognitive sequelae, persistent pain, disturbed sleep pattern and restricted access to the open labour market. When read fairly, and as a whole, Dr Ting provides no support for the proposition that Mr Patel can return to work part-time in the positions identified.
To the extent that the respondent seeks to rely upon the opinion of Dr Smith, his opinion is far from contemporaneous having been provided in early September 2019. Dr Smith’s opinion was provided prior to the onset of Mr Patel’s secondary psychological condition in or around April 2020. There is no dispute on the medical evidence that Mr Patel has developed a psychological condition associated with his physical injury which has impacted upon his work capacity.
I am not satisfied that Mr Patel has the capacity to undertake suitable employment in the roles identified in the WCD. In making this finding I also have regard to Mr Patel’s failed return to work in March 2020, the opinions of his general practitioner and the opinions of
Dr Kumagaya and Dr Rastogi.
Finally, the WCD is entirely inconsistent with the IPAR vocational assessment report undertaken on 15 July 2021, which concluded that no job options could be identified as being appropriate for Mr Patel to pursue based on his physical and psychological tolerances, transferable skills, previous education and work experience (Reply, page 7).
It follows that the WCD dated 29 July 2021 is to be set aside.
It is necessary to deal with the respondent’s alternative submission – that I should find
Mr Patel has the capacity to earn 20 hours per week in office-based employment.The respondent submitted that paragraph 33 of Procedural Direction WC5 – Work Capacity Disputes enabled the Commission to consider all of the medical evidence when determining work capacity disputes. As such the reports of Associate Professor Damodaron and
Dr Assem were capable of being relied upon even though they were not expressly referred to in the WCD.I am not persuaded that is the case. Paragraph 33 of the of the Procedural Direction sets out the manner in which disputes will be determined, including by having regard to the information in the Application and the Reply. The Procedural Direction does not override a party’s duty to properly articulate its case in order to provide procedural fairness to its opponent. It seems to me that if the respondent wished to rely upon the opinions of Associate Professor Damodaron and Dr Assem, then those reports ought to have been referred to in the WCD. Both reports were obtained prior to the issue of the WCD however for some reason, unexplained to the Commission, those documents have not been referred to in the WCD.
In any event, it is not necessary for me to provide a conclusive view on this issue. This is because I am not persuaded by the opinions of Associate Professor Damodaron and
Dr Assem. I am satisfied that Mr Patel has no capacity for work.In making my finding that Mr Patel has no capacity for work I rely on the following matters:
(a) I am satisfied that Mr Patel continues to suffer from the effects of his physical injury. In February 2021, over 18 months after he ceased work, Mr Patel continued to complain of low back pain to his treating neurosurgeon (Application, page 24);
(b) Dr Ting’s opinion concerning Mr Patel’s low level of work readiness given his ongoing treatment needs, physical restrictions, psychological difficulties, cognitive sequelae, persistent pain, disturbed sleep pattern and restricted access to the open labour market have resulted in his low level of readiness for work. Contrary to the respondent’s position, as articulated in the WCD, Dr Ting provides no support for the proposition that Mr Patel can engage in the roles identified in the WCD;
(c) I am satisfied that Mr Patel has suffered a secondary psychological condition that has, and continues, to impact upon his capacity for work. My finding is supported by the opinions of Dr Kumagaya, Dr Rastogi and Dr Ting. Whilst Associate Professor Damodaron diagnosed a psychological condition, he opined Mr Patel had residual capacity for employment;
(d) I rely on the IPAR’s vocational assessment report, which is consistent with the opinion of Dr Kumagaya, Dr Rastogi and Dr Ting and the certification given by
Mr Patel’s general practitioners;(e) I am not persuaded by the opinion of Associate Professor Damodaron. Associate Professor Damodaron opinion is not consistent with the opinions of Dr Kumagaya and Dr Rastogi. Associate Professor Damodaron is not qualified to provide any opinion on Mr Patel’s physical incapacity for work. Associate Professor Damodaron opined that Mr Patel may require targeted educational and training support to secure employment in the area of office-based or clerical duties. There is no evidence that Mr Patel has been offered or provided with such services (see section 32A(a)(iv)); and
(f) I am not persuaded that Dr Assem properly considered the issue of Mr Patel’s capacity to work. Dr Assem’s assessment was undertaken for the purposes of determining whether Mr Patel required ongoing physiotherapy treatment.
Dr Assem’s opinion is brief and, in my view, it is not consistent with the weight of medical evidence. Moreover, Dr Assem noted that Mr Patel’s capacity to return to work was contingent upon the engagement of the services of a rehabilitation provider to explore suitable vocational options within his restrictions (Application, page 69). There is no evidence that Mr Patel has been offered or provided with such services (see section 32A(a)(iv)).For the above reasons, I am satisfied that Mr Patel has no work capacity. There will be an award for Mr Patel on the claim for weekly benefits compensation.
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