Ramsey v Trustees of the Roman Catholic Church for the Diocese of Parramatta

DECISION OF PRESIDENT’S DELEGATE
CITATION:	Ramsey v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2021] NSWPIC 362
APPLICANT:	Michael Ramsey
RESPONDENT:	Trustees of the Roman Catholic Church for the Diocese of Parramatta
PRESIDENT’S DELEGATE:	Parnel McAdam
DATE OF DECISION:	21 September 2021
CATCHWORDS:	WORKERS COMPENSATION- Work capacity dispute; worker with high needs; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; focus on the nature of incapacity; unexplained change in certification; insufficient evidence to make an award from the date of deterioration; consideration of totality of medical evidence; Held - award for the applicant based on evidence of deterioration of symptoms certified in medical evidence.
ORDERS MADE:	1. The respondent pay the applicant weekly compensation pursuant to section 38 of the Workers Compensation Act 1987 for the period 14 June 2019 to 22 October 2020 at the rate of $1,304.48, as indexed from time to time pursuant to Division 6A of Part 3 of the Workers Compensation Act 1987.

Statement of Reasons

Background

Mr Ramsey initially suffered an injury on 16 November 2013. Since that time, he has struggled with the ongoing implications of that injury, affecting his capacity for employment, his permanent impairment, and has undergone multiple surgical interventions.
Mr Ramsey is no stranger to litigation, having been involved in no less than four other proceedings in the Commission (three of which involved determinations) and proceedings concerning unfair dismissal in the Fair Work Commission.
The present proceedings involve Mr Ramsey’s capacity for suitable employment as defined in section 32A of the Workers Compensation Act 1987 (the 1987 Act). The current claim is for weekly compensation for a period commencing on 11 February 2019 to 22 October 2020 (when the applicant underwent surgery in his lumbar spine). It would appear that the respondent commenced payments from around that date (understandably given the nature of the surgery and the recovery period involved).
Mr Ramsey is currently in the section 38 period (that is the period after 130 weeks of compensation) but is entitled to compensation under section 38 (putting aside the requirements of section 32A concerning suitable employment) as he has been assessed as a worker with high needs and has applied for continuing payment in writing, in accordance with the requirements of section 38 (3A).

Issue in dispute

The issue in dispute in this matter is whether and to what extent the applicant has capacity for suitable employment. There is no dispute as to the applicant’s pre-injury average weekly earnings (PIAWE), which is calculated by the insurer to be $1,630.60 per week as at 18 November 2018.

The legislation

As this dispute concerns suitable employment, I must consider the definition in section 32A of the 1987 Act:
“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 issues in dispute in this matter are confined to subsection (a)(i) – the nature of the worker’s incapacity.
I am determining this dispute exercising powers of the President delegated to me. Section 297(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
“When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction.”

The evidence

A large volume of evidence has been filed in this matter, although given the limited nature of the issues in dispute, the majority of it is of limited relevance. Much of the evidence relates more specifically to issues previously litigated and determined by the Commission, including liability for injury, whether medical expenses were reasonably necessary, and a previously determined claim for weekly payments of compensation.

The dispute notices

The initial relevant dispute notice in this matter is dated 8 May 2019 but was apparently sent to the applicant’s solicitors on 25 June 2019[1]. That decision determined that Mr Ramsey had a “current work capacity” as defined in section 32A of the 1987 Act.
[1] Pg 73 of the Reply
That decision acknowledged that Mr Ramsey had been assessed as suffering from 27% whole person impairment and was a worker with high needs as defined by section 32A of the 1987 Act. The work capacity decision determined pre injury average weekly earnings (PIAWE), after indexation, to be $1,630.60 per week. The work capacity decision also determined that Mr Ramsey was capable of working in suitable employment for 25 hours per week earning $42 per hour, totalling $1,050 per week.
The decision referred to a number of decisions of the Commission, but most importantly the Certificate of Determination of Arbitrator Harris dated 12 March 2019. That Certificate concerned entitlements under sections 36 and 37 of the 1987 Act, including that from
31 January 2017, Mr Ramsey had some capacity for employment.
In terms of the evidence provided, the insurer referred to a certificate of capacity dated 11 February 2019 which certified no capacity, and a report from Dr Abraszko, which states that Mr Ramsey is “unable to perform any work for the next 12 months”. In relation to those documents, the insurer determined that they do not satisfactorily demonstrate a change in capacity or circumstances from 17 November 2018, when the award of Arbitrator Harris expired.
The decision is in essence a continuation of the previous award of Arbitrator Harris.
A dispute notice dated 12 July 2019 is attached. This concerns proposed lumbar spine surgery. That issue was the subject of previous proceedings, and was determined by Arbitrator McDonald.
A dispute notice dated 13 September 2019 is also attached, concerning ISIS technique, pain management and rehabilitation was also attached. This is not relevant to the present proceedings. It is unclear whether that is no accepted or is still disputed. The medical expenses sought may have been subsumed by the surgery, or may be part of that claim.
The applicant’s solicitors requested a review of the work capacity decision on 17 April 2020. In a decision dated 27 April 2020, the respondent maintained its previously made decision (discussed above).
The only further document related to the dispute notices is a series of email communications between the applicant’s solicitor and the insurer. On 2 March 2021, the applicant’s solicitor responded to a review request apparently made following the determination of Arbitrator McDonald (the request is not before me)[2]. The applicant’s solicitor asserted that the insurer had “failed to undertake a proper review” of its decision, and requested a further review. There was apparently no reply to that correspondence, and on 14 April 2021, the applicant’s solicitor sought a response and threatened to make a complaint with “IRO and SIRA”. It is unclear whether a response was received or if a complaint was made.
[2] Page 314 of the Application

Documents authored by Dr Abraszko

Dr Abraszko provides a letter[3] (it could not be called a report) dated 7 March 2021 in which he certifies Mr Ramsey as “unable to perform any work for next 12 months”. Nothing further is provided in that report.
[3] Page 141 of the Application
Also attached to the Application[4] is a report of Dr Abraszko dated 1 May 2019, seeking approval for an L5/S1 anterior discectomy and fusion. In terms of support, the report states he “presented with low back pain due to his work related injury to his L5/S1 disc”. No further detail is provided other than concerning the operative fees.
[4] Page 142 of the Application
Dr Abraszko provides a further report dated 22 May 2019[5]. It was noted that the above request for surgery was apparently sent to the wrong insurer. That report discusses the recommended surgery. Dr Abraszko records:
“He has pain in the lower back, which radiates to his right leg, and that is confirmed by the provocative discogram at that level”
[5] Page 143 of the Application
The report goes on to discuss the risks associated with the fusion, noting that Mr Ramsey is happy to take those risks. It concludes with the following:
“He now declined any further conservative management due to the lack of improvement and the fact that he has to get better”.
The final report from Dr Abraszko attached to the Application is dated 25 January 2020[6]. Of the reports attached, this most resembles a thorough and considered report dealing with the history of injury and issues relevant to the workers compensation claim. It also highlights that Dr Abraszko has been treating Mr Ramsey for many years and has undertaken some complex and invasive procedures.
[6] Page 157 of the Application
A history relating to the onset of symptoms in the lumbar spine is recorded. However, that history has no specific dates other than the onset of symptoms, and does not discuss
Mr Ramsey’s capacity in any detail. Dr Abraszko records:
“Also his back pain got worse. MRI of the lumbar spine revealed disc protrusion at L5-S1 level.

I recommended him CT lumbar discogram with Dr Glen Schlapoff at L4-L5 and L5-S1 level.

CT lumbar discogram was positive at L5-S1 level reproducing his right leg pain. L4-L5 level was negative.

We had a long discussion. We were discussing conservative management which he did not want since there was no improvement. We discussed the possibility of surgery.

A surgery, which was proposed – was an anterior or posterior L5/S1 fusion.”
The report goes on to discuss the other opinions regarding the need for surgery, including the dispute created by Dr Wallace.
At the time of the report, the current complaints were recorded as:
“Neck pain.
Constant lower back pain radiating to his right leg.
Pain radiating down the right leg is now constant.
He has difficulties with sitting and standing for prolonged period of time.
He has difficulties with walking for prolonged period of time.
he has limited bending forward abilities, since flexion movements of his lumbar spine reproduce sever back pain.”
The report also discusses Mr Ramsey’s fitness for work, and records:
“Due to severity of his back pain he was unable to perform his previous work as a single person IT manager. His job included heavy lifting and he does not have capacity for work which include heavy lifting.
He is not able to lift more than 7kg on the repetitive basis at the waist level.
He is not able to lift anything from the floor to the waist level on the repetitive basis.
He is not fir for his pre-injury duties.
The loss of capacity for such a job is for life.”

Report of Dr Anil Nair

Dr Nair provides a report dated 26 June 2019, which appears to be a second opinion regarding surgery. He records of relevance:
“In regards to his lumbar spine, he has been symptomatic for a number of years. This is worsening in magnitude. He describes pain in the lumbosacral junction. There is radiation into the gluteal region and into the lower extremity. The symptoms are worsening in magnitude. They have been refractory to non-operative care.”
Dr Nair supported the recommendation for surgery.

Certification of Dr Ashraf Aboud

Dr Aboud provides a certificate of capacity on 11 February 2019 (the commencement of the period claimed)[7]. He certifies that Mr Ramsey has no current work capacity for any employment from 11 February 2019 to 9 March 2019. No explanation is provided for the downgrade, but in the section headed “Management plan for this period”, it is recorded:
“pain management Medications Gabapentin 900 daily Nexium 40
[7] Page 295 of the Application
surgical review by Renato Abraszko”
Previous certifications until that point had been for four hours per day, three days per week.
For reasons not abundantly clear, a large number of other certificates are attached to the Application, in a somewhat scattered order, for periods that pre-date the period currently in dispute and that were the subject of determination by Arbitrator Harris.

Report of Dr Wallace

Dr Wallace examined Mr Ramsey on 14 June 2019. This report was prepared in light of the claim for lumbar fusion at L5/S1 level as recommended by Dr Abraszko. At the time of the report, present complaints were recorded as being:
“At the lumbar spine, he notes a constant aching pain at the L5 spinous process radiating to the bilateral buttocks and the posterior aspects of the lower limbs to the level of the ankle bilaterally, worse on the right side. He notes intermittent shooting pain at the posterior aspect of the lower limbs to the level of the ankles bilaterally which feels like ‘electricity’.

His lumbar spinal pain is worse on forward flexion, walking, standing or sitting and has no relieving factors.

He notes intermittent paraesthesia at the anterior aspect of the left thigh. He complains of intermittent weakness at his bilateral lower limbs and stiffness at his lumbar spine, particularly in rotation.”
In terms of current activities, Dr Wallace describes difficulties in dressing and driving a motor vehicle. Mr Ramsey was unable to perform housework tasks or home maintenance.
Dr Wallace was of the opinion that surgery was not reasonably necessary as it has a poor prognosis. That issue has been resolved by determination. He notes that “There is no evidence that his current pain generator is entirely attributable to pathology at the L5/S1 level.” He opines that it is “highly unlikely that Mr Ramsey will return to work at his full-time pre-injury duties at work after undergoing spinal fusion”.

Reports of Emad Girgis

Mr Girgis is a psychologist. There are two reports from Mr Girgis attached to the Application. The first, dated 12 October 2017[8], provides some background information, details of the work incidents, and some (at that time) present complaints. Mr Girgis provides a diagnosis of adjustment disorder with depressed mood, which has significantly impacted on Mr Ramsey’s life.
[8] Page 131 of the Application
At the time of the report, Mr Girgis assessed the degree of “disability” (a different question to that of capacity) as being “moderate to severe”, but was unable to provide a prognosis. He recommended ongoing treatment on a fortnightly basis.
Mr Girgis also provides a psychological evaluation in a report dated 7 November 2019[9].
[9] Page 150 of the Application
He takes a history of injury and the sequelae thereof, noting that Mr Ramsey has reported ongoing physical pain and psychological symptoms as a result of the incidents that occurred.
In terms of present symptoms recorded at the date of assessment, Mr Ramsey reported emotional and cognitive changes as a result of his injury. He reports issues with memory and concentration, as well as agoraphobic symptoms when considering leaving home. He also reports various impacts on his home and social life. Mr Girgis conducted a series of psychometric tests on Mr Ramsey, recording results for anxiety, stress, depression and hopelessness within the high to severe range.
The report concludes with the following under the heading “recommendations”:
“Overall, Mr Ramsey continues to suffer from Adjustment Disorder with Depressive Mood. The onset of his reported psychological symptoms occurred after his work place injury. He continues to suffer from the debilitating symptoms of his disorder. These symptoms have a negative impact on his overall functioning and quality of life. Due to the nature of his workplace injury and the constant pressure that Mr Ramsey was exposed since 2013. In my opinion Mr Ramsey has total incapacity to return to work with his pre injury employer (Catholic Diocese of Parramatta) due to his psychological condition and physical limitation. Due to Mr Ramsey’s conditions he is restricted to learn new profession due to his lack of concentration and low mood and he is unable to return to any type of work at the present time and the foreseeable future”.

Submissions

The parties were unable to resolve the dispute during the teleconference. Accordingly I issued a direction calling for written submissions, which have been provided by both parties. A summary of the submissions will be provided below.

Applicant’s submissions

The applicant provided written submissions on 3 September 2021.
The applicant’s primary case is that he has no work capacity for the period 11 February 2019 to 21 October 2020. The applicant submits that taking into account the medical evidence and the definition of suitable employment under section 32A, primarily subsection (a)(i), a finding of total incapacity should be made.
The applicant refers to the injuries he has suffered to his lumbar spine, cervical spine, and a secondary psychological injury, which are noted to be undisputed. The applicant refers to the previous proceedings in the Workers Compensation Commission, in particular with reference to the decision of Arbitrator Harris who made a determination in respect of weekly benefits. The applicant submits that this determination was made primarily in respect of injury to the cervical spine.
The applicant refers to the insurer’s work capacity decision, and asserts that the insurer has completely failed to consider the clinical history and the treatment that occurred following the decision of Arbitrator Harris.
The applicant asserts that up until the end of 2018, the most significant injury was to the cervical spine. At the end of 2018, his lumbar spine symptoms became more apparent and on 11 February 2019, he sought advice from his general practitioner. This is the point when Mr Ramsey was certified unfit for work. The applicant’s submissions then summarise his medical interventions, including scans, consultations with Dr Abraszko and the second opinion of Dr Nair, until the point of the fusion surgery on 22 October 2020.
The applicant also refers to the reports of Mr Emad Girgis in terms of the secondary psychological condition.
The applicant submits that the medical evidence from his treating health practitioners demonstrates a significant deterioration in respect of the lumbar spine, an increase in symptoms, and a change in work capacity reflected in the certificates. The applicant submits that the referral for surgical review was made in February 2019, and was recommended by Dr Abraszko. The surgery was invasive and significant, and generally would not be recommended or undertaken unless the severity of the symptoms would warrant it.
It is further submitted that at the time of the decision of Arbitrator Harris, no consideration was given to the psychological injury. The applicant acknowledges that it is his onus to prove incapacity and submits that the overwhelming clinical evidence supports such an assertion.
The applicant submits that the increased symptomatology would have a significant impact on his capacity for work. It is the applicant’s view that one must consider the totality of the medical evidence and injuries sustained by the applicant when assessing his work capacity for the period claimed.

Respondent’s submissions

Per my direction, the respondent provided written submissions on 10 September 2021.
The respondent concurred with the summary of the issues in dispute per the applicant’s submissions, that is:
(a)    there is no dispute that the applicant sustained injuries to his cervical spine and lumbar spine;
(b)    the applicant received weekly payments of compensation pursuant to the determination of Arbitrator Harris. That award related only to weekly payments under sections 36 and 37 of the 1987 Act;
(c) the respondent issued a work capacity decision determining entitlements under section 38 of the 1987 Act, determining that the applicant was capable of earning suitable employment in the amount of $1,050 per week;
(d)    there is no dispute as to the applicant’s PIAWE (being $1,304.48);
(e)    no weekly payment claim is brought for the period beyond 21 October 2020, being the date when the applicant underwent surgery to his lumbar spine. The respondent accepts that from that date the applicant had no current work capacity, and
(f) the respondent agrees that the applicant, as a worker with high needs, is not subject to the test posed by section 38(3) of the 1987 Act.
The respondent submits that the Commission should decline to order weekly payments as claimed, as the evidence supports the applicant has an ability to work in suitable employment earning $1,050 per week.
The respondent refers to and relies on the decision of Arbitrator Harris, who rejected the general practitioner’s certification, made a finding that the applicant could perform professional IT work from 31 January 2017, and was of the view that the certification of the general practitioner “overstates the applicant’s incapacity”.
The respondent submits that the findings made by Arbitrator Harris, concerning the applicant’s transferrable skills, remain applicable to the current proceedings. It may be inferred from the qualifications held by the applicant and his pre-injury employment that he had significant transferrable skills and abilities for the purpose of section 32A to work in IT, administrative or similar work.
In terms of the certification provided and the apparent deterioration, the respondent submits that the applicant has effectively at all times asserted he was totally unfit for work. The respondent refers to the report of Dr Abraszko dated 10 April 2017, which concluded the applicant was fit to work not lifting more than 7kg and not able to lift anything from floor to waist level. The respondent refers to the report of Dr Abraszko dated 7 March 2019, which the applicant submits is “not a conclusive opinion in respect of capacity for work”. The respondent submits that Dr Abraszko does make a conclusion on the applicant’s capacity to work, which is essentially the same opinion as provided in the report dated 10 April 2017 and which was largely accepted in the previous proceedings.
The respondent submits that, contrary to the applicant’s submission, Dr Abraszko’s opinion provided in January 2020 is largely the same opinion as provided in 2017.
The respondent refers to the applicant’s reliance on the secondary psychological condition. The respondent submits that this condition is not a recent development and was a matter well known in the course of the earlier proceedings. The statement of Mr Girgis that the applicant is unable to return to any type of work at the completion of his report in November 2019 is not reasoned or explained. The respondent also notes that the opinion is provided by a psychologist, not a psychiatrist.
The respondent then concedes that there is no estoppel in a matter capable of change, but the reasons of Arbitrator Harris contained a detailed review of the medical evidence and is highly persuasive.
The respondent submits that the work capacity decision should be confirmed, and the applicant has not discharged his onus of establishing that he has no current work capacity.

Discussion

There are number of relevant considerations in the definition of “suitable employment” in section 32A that must be considered when determining whether a worker has a current capacity for suitable employment.
In the present case, the major issue of dispute between the parties concerns the nature of the worker’s incapacity. In relation to the worker’s age, education, skills and work experience, the applicant’s submissions and evidence do not address that point. The respondent did not go as far as to suggest that the decision of Arbitrator Harris created an estoppel in terms of that consideration, but did place significant emphasis on that decision. The respondent submits that “the Arbitrator made certain determinations with respect to the applicant’s transferable skills, which remain applicable to the current proceedings”.
In the absence of any submissions or contrary evidence from the applicant I agree with the respondent’s submissions, in that Mr Ramsey clearly has a set of relevant transferrable skills that are relevant to a role as an IT worker or similar. I do not intend to delve any further into that aspect of the definition of suitable employment in section 32A, as it is really of limited relevance to the issues in dispute as contextualised by the evidence provided and the submissions of the parties.

The nature of the incapacity

The crux of this issue concerns the nature of the incapacity of Mr Ramsey. The claim for compensation is for the period 11 February 2019 to 22 October 2020. This period commenced when Mr Ramsay was certified totally unfit by his treating doctor on 11 February 2019. He remained with that certification until 22 October 2020, when he underwent a lumbar fusion. The respondent has conceded that from the date of that surgery, the applicant has no capacity, and as far as I am aware, has been paying Mr Ramsey since that date.
The definition of suitable employment is a complex one and involves matters that one must have regard to and matters that one must ignore. Even within each listed consideration, the considerations themselves are complex. For example, when considering the nature of the worker’s incapacity (a shorthand which I am using for item (a)(i) in the definition in section 32A), the nature of the worker’s incapacity is followed by the following words which must be considered: “and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B)”.
This consideration is one that takes into account the worker’s medical restrictions, but is not limited to the certification provided by the treating doctor. If it were so limited, the applicant’s case would be straightforward. From 11 February 2019 he was certified as totally unfit in a certificate of capacity.
The applicant’s general case is that the totality of the medical evidence supports a finding that from that date he was totally incapacitated. The respondent’s general case is that essentially nothing changed since the award of Arbitrator Harris until the surgery took place.
In my view the reality of the situation falls somewhere between the two.
The difficulty I have in accepting the applicant’s case is that there is no explanation for the change in certification on 11 February 2019. The applicant has not provided a report from

Dr Aboud or referred to any clinical notes that may explain the reason for the downgrade. Their case for incapacity from the 11 February 2019 is based on inference and supposition. As the applicant bears the onus of proving their case, there is insufficient explanation of:
(a) what occurred to cause the downgrade in the applicant’s capacity in terms of symptoms and restrictions, and
(b) how the applicant’s capacity differs from that found by Arbitrator Harris and certified by Dr Aboud up until that point.
On the other hand, I do not accept the respondent’s case that the applicant had no change in capacity until the surgery that occurred on 22 October 2020. The applicant underwent invasive and complex surgery in his lumbar spine, having previously undergone similarly invasive surgery in his cervical spine. I accept that that type of surgery is not generally undertaken unless the person is experiencing significant symptoms, symptoms that would result in diminished capacity.
However, I am not able to simply infer incapacity from a certain date. It must be an evidence-based decision considering the “details provided in medical information”. I have already rejected the certificate of capacity as being insufficient. Whilst I am not bound by the decision of Arbitrator Harris, I place significant weight on that decision, including the finding made that Dr Aboud’s certification, in the past, “overstates the applicant’s incapacity”.
There is other medical evidence that must be considered. Dr Abraszko also provides a certification regarding Mr Ramsey’s capacity. On 7 March 2021, Dr Abraszko provides a letter that certifies Mr Ramsey as “unable to perform any work for next 12 months”. There are multiple issues with this document. Firstly, it is a bald assertion. Secondly, much like the certificate of capacity provided by Dr Aboud, does not provide any contextual explanation for the change in certification. Thirdly, the certification for a period of 12 months is excessive and unexplained. This document is insufficient to provide a point at which Mr Ramsey’s capacity may have changed.
On 22 May 2019, Dr Abraszko provides a report recommending surgery. It does not particularly discuss Mr Ramsey’s capacity with reference to the requirements in section 32A (a fact common to much of the medical evidence), but does report some ongoing symptoms, which include pain in the lower back radiating to his leg. There is no discussion of the extent of the pain or how it is affecting his activities of daily living. Again, it is difficult to draw a conclusion on Mr Ramsey’s capacity from this report. This provides some evidence for the symptoms he was experiencing in May 2019, but not the extent of those symptoms. A worker may be experiencing back pain with some radiating pain to the leg but still have capacity to work in an office environment taking suitable precautions as to not aggravate the pain. This is not discussed at all by Dr Abraszko.
Dr Abraszko provides another, more comprehensive report dated 25 January 2020. There is a history of the symptoms Mr Ramsey has experienced, although there is no timeline associated with their initial onset or deterioration. The report actually discusses Mr Ramsey’s fitness for work, but is focussed on his pre-injury employment. Dr Abraszko opines that

Mr Ramsey is not fit for his pre-injury duties for life. There does not appear to be any dispute that the role Mr Ramsey was performing prior to his work injuries is never going to be suitable. That is not the relevant question, however. The relevant question is whether

Mr Ramsey has some capacity for suitable employment consistent with the definition in section 32A of the 1987 Act. Again, I have difficulty accepting this report as conclusive evidence of incapacity from a certain date, as no dates of symptoms or relevant discussions of capacity are recorded.
However, there is other evidence, when read in conjunction with the reports provided by

Mr Ramsey’s treating practitioners, that assist to provide some contextual support to a decline in capacity at a point in time earlier than that asserted by the respondent (but later than that asserted by the applicant).
Dr Nair provides a second opinion regarding surgery in a report dated 26 June 2019, and records symptoms in the lumbar spine “for a number of years”. He describes the symptoms as “worsening in magnitude”.
The respondent notes that Dr Abraszko’s conclusion regarding Mr Ramsey’s capacity for work in 2020 is essentially the same from that in 2017. I agree with that submission. There are certainly weaknesses in the evidentiary basis of the applicant’s case that have made piecing the onset of the deterioration together more difficult than it should have been. However, I must have regard to the totality of the medical evidence, including other reports. Dr Nair’s report provides support for the applicant’s case as it considers the history of lumbar spine symptoms and shows a definite and recorded increase in those symptoms. Whilst symptoms are not necessarily equivalent to capacity, as discussed above, this is contextual information that must be considered as provided for by the definition of suitable employment in section 32A of the 1987 Act.
Despite preparing a report for the respondent, used to support their declinature of the applicant’s request for surgery, the applicant’s present case gains some support from the report of Dr Wallace dated 14 June 2019. Dr Wallace records constant aching pain in the lumbar spine radiating to the lower limbs, and intermittent shooting pain. The lumbar spinal pain is worse on forward flexion, walking standing or sitting, and importantly, has “no relieving factors”, as well as intermittent paraesthesia and weakness. He also reports difficulty in dressing, driving a motor vehicle, and performing housework and maintenance. In terms of an opinion specifically going to capacity, Dr Wallace opines that it is “highly unlikely” that Mr Ramsey will return to his pre-injury duties. Again, the report does not explicitly consider other duties, in particular suitable employment per the definition in section 32A.
This report provides a time-specific record of the applicant’s symptoms, produced at a similar time to that of Dr Nair, who described symptoms that were worsening in magnitude. Although the discussion of capacity in Dr Wallace’s report is not relevant for present circumstances, as it focusses on Mr Ramsey’s pre-injury employment, the extensive and comprehensive record of symptoms is persuasive evidence of the issues plaguing Mr Ramsey from, at least, June 2019. Based on those symptoms, I do not believe that Mr Ramsey would have had any capacity for employment. The pain was described as having “no relieving factors” and effected Mr Ramsey’s self-care and home care capabilities.
The above physical symptomatology is complicated by Mr Ramsey’s ongoing mental health issues as diagnosed by Mr Girgis, his treating psychologist. The respondent has criticised the reliance on this report noting that it is “simply a psychological evaluation provided by a psychologist”, rather than a qualified medical opinion from a psychiatrist. I do not accept that submission. Mr Girgis is the applicant’s treating psychologist and has treated him for a number of years. The weight that can be given to the report, in the context of the specific issues in dispute, is not reduced by Mr Girgis’ qualifications.
In terms of his capacity, in his report dated 7 November 2019, Mr Girgis records that

Mr Ramsey would be unable to return to work with his pre-injury employer (rather than his pre-injury employment), he is restricted in learning a new profession, and he is “unable to return to any type of work at the present time and the foreseeable future”. This opinion contributes to the details provided in the medical information (per the relevant definition in section 32A) from at least 7 November 2019. It is uncontested evidence (other than the respondent’s assertions concerning the weight that can be given to the report, as well as the submissions that suggest it was a matter considered in the proceedings before Arbitrator Harris).

Decision

As indicated above, there are some deficiencies in the evidence that have made my consideration of the issues in dispute more difficult. For reasons unclear, very little attention has been paid by any treating doctor to the precise issue in dispute, nor has an independent expert report been obtained by the applicant.
The issue itself is one of diametrically opposed cases. The applicant makes a claim for payment from the first date of incapacity. The respondent says there should be an award in their favour for the entire period – that is the applicant had ongoing capacity in line with the certification of Arbitrator Harris until he underwent surgery on 22 October 2020. I do not think either case is realistic or reasonable. The applicant’s case ignores the distinct lack of evidence provided (at least for parts of that period). The respondent’s case ignores the reality that the surgery performed on Mr Ramsey was complex, invasive, and was provided to treat obviously quite significant symptoms. The real question is when those symptoms corresponded with incapacity for suitable employment as defined in section 32A of the 1987 Act.
Weighing all of the medical evidence, including, but not limited to, the certificate of capacity,

I find that the nature of the worker’s incapacity, at 14 June 2019, meant the applicant had no capacity for suitable employment. That date corresponds with the report of Dr Wallace, which is the first real and concrete certification of the symptoms and restrictions suffered by

Mr Ramsey.
Prior to that date, Dr Aboud had certified Mr Ramsey as having no capacity for employment and Dr Abraszko had provided a letter in which it was stated that Mr Ramsey would have no capacity for the next 12 months. The problem with accepting both of those documents is that there is no explanation for the downgrade or deterioration in the applicant’s condition, and no discussion or apparent consideration of the requirements of section 32A of the 1987 Act.

I am guided in this view by the comments of Arbitrator Harris, who opined that Dr Aboud was overstating the applicant’s incapacity.
The respondent’s submissions take pains to read the report of Dr Abraszko dated 25 January 2020 in the context of the previously authored report dated 10 April 2017. The respondent submits that Dr Abraszko’s opinion has essentially not changed since April 2017, and in the context of the findings of Arbitrator Harris, this establishes that at 25 January 2020, the applicant retained capacity to work in suitable employment. The respondent submits that limited restrictions are placed on the applicant and would not prevent him from obtaining the kind of work identified by Arbitrator Harris.
I do not accept this submission. As the respondent concedes, I am not bound by the decision of Arbitrator Harris as capacity is a circumstance capable of change and I am considering an award in the period after 130 weeks (i.e. under section 38), whilst Arbitrator Harris considered the section 36 and 37 periods. I am required to consider all of the medical evidence. Dr Abraszko’s comments concerning his lifting restrictions, similar as they are to previously made comments are focussed on the applicant’s pre-injury duties. Further, the applicant clearly has different and more substantial symptoms between the two reports (as established in the opinions of Dr Nair and Dr Wallace).
Weighing all of the competing evidence, I am satisfied that from the time of the report of

Dr Wallace (14 June 2019), Mr Ramsey had no capacity. I have chosen this date as it provides a concrete reference point for an explanation of the symptoms suffered by

Mr Ramsey which is otherwise absent from the evidence. The range of symptoms present on examination explain the certifications of Drs Aboud and Abraszko, who at that time had already opined that Mr Ramsey was totally unfit.
Accordingly, the President directs the respondent pay the applicant weekly compensation pursuant to section 38 of the 1987 Act for the period 14 June 2019 to 22 October 2020 at the rate of $1,304.48 as indexed from time to time pursuant to Division 6A of Part 3 of the 1987 Act.

[2021] NSWPIC 362

21 September 2021