Raso v Australian Turf Club Ltd
[2025] NSWPIC 281
•19 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |||||||||||||||||||||
| CITATION: | Raso v Australian Turf Club Ltd [2025] NSWPIC 281 | ||||||||||||||||||||
| APPLICANT: | Raso | ||||||||||||||||||||
| RESPONDENT: | Australian Turf Club Ltd | ||||||||||||||||||||
| MEMBER: | Rachel Homan | ||||||||||||||||||||
| DATE OF DECISION: | 19 June 2025 | ||||||||||||||||||||
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for weekly compensation after 260 weeks at a higher rate; dispute concerning the extent and quantification of the worker’s capacity to earn in suitable employment; where worker had returned to work in own dog grooming business; claim for discretionary interest pursuant to section 109; timing of duly made claim; Held – the worker had capacity to work 25 hours per week as a dog groomer; other roles identified in respondent’s evidence were not suitable having regard to the nature of the incapacity, education, skills and experience; amount able to earn in suitable employment indexed in line with indexation of pre-injury average weekly earnings (PIAWE); application for discretionary interest declined. | ||||||||||||||||||||
DETERMINATIONS MADE: | The Commission determines: 1. From 8 July 2021 to date and continuing, the applicant has been able to earn the following amounts in suitable employment:
2. The respondent to pay the applicant weekly compensation from 8 July 2021 to date and continuing based on the figure representing ‘E’ above and the pre-injury average weekly earnings rate of $1,250.16, as periodically indexed. 3. The award of weekly compensation is reduced by any amounts already paid pursuant to s 46 of the Workers Compensation Act 1987. 4. Liberty to the parties to apply with respect to the calculations within 14 days. | ||||||||||||||||||||
STATEMENT OF REASONS
BACKGROUND
Mr Andrew Raso (the applicant) sustained an injury to his lumbar spine in the course of his employment as a jockey on 26 May 2015. Liability for the injury has been accepted.
As a result of the injury, the applicant underwent a L5/S1 right microdiscectomy and foraminal decompression in May 2016, performed by Dr James van Gelder.
Following the surgery, the applicant made a claim for compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). After commencing proceedings in the former Workers Compensation Commission, the applicant was awarded lump sum compensation for 15% whole person impairment (WPI) of the lumbar spine on 29 August 2018.
The applicant underwent a further surgical procedure, in the form of a L5/S1 left foraminal discectomy, anterior lumbar interbody fusion and iliac crest bone graft, on 7 April 2021.
On 3 February 2022, the applicant’s solicitors wrote to the respondent’s insurer asking it to concede that in light of the further surgery, he had a WPI of 21% or greater resulting from the injury on 26 May 2015.
The insurer replied on 2 March 2022, noting that the applicant had made his one claim for lump sum compensation under s 66(1A) of the 1987 Act.
On 28 April 2022, the applicant forwarded a report of Dr Matthew Giblin, dated 11 April 2022, in which he assessed the applicant as having 28% WPI as a result of the injury. The report was re-served on 9 February 2023, when the applicant wrote making a claim for weekly payments pursuant to s 38(7) of the 1987 Act. The applicant asserted that the five year limit in s 39 of the 1987 Act did not apply as the applicant had greater than 20% WPI as a result of the injury.
On 7 July 2023, the insurer made a work capacity decision in which it was determined that payments of weekly compensation would be made for the period from 8 July 2021 and continuing on the basis that that applicant could earn $832.50 per week in suitable employment, working 30 hours a week.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 4 February 2025. The applicant seeks weekly compensation at a higher rate than that paid as well as discretionary interest pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the difference between any amount awarded and the amount already paid as weekly compensation.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing via Microsoft Teams on 6 May 2025. The applicant was represented by Mr John Dodd of counsel, instructed by Mr Anthony Macri. The respondent was represented by Mr David Saul of counsel, instructed by Mr Stephen Marsh. Mr Warren Mitchell from Racing NSW was also present.
The parties agreed that the Pre-Injury Average Weekly Earnings (PIAWE) rate was that which appeared in the wages schedule attached to the Application to Resolve a Dispute, as periodically indexed and subject to s 82D of the 1987 Act. The parties were unable to resolve the capacity dispute.
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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) the extent and quantification of incapacity resulting from injury in the period from 8 July 2021 to date and continuing;
(b) whether the Commission ought to make orders pursuant to s 109 of the 1998 Act for the payment of interest on the difference between any amount awarded and the amount already paid as weekly compensation, and
(c) if so, the rate and the period in respect of which interest ought to be paid.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and all attachments;
(c) documents attached to the Application to Lodge Additional Documents lodged by the applicant on 17 April 2025, and
(d) documents attached to the Application to Lodge Additional Documents lodged by the respondent on 1 May 2025.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in written statements made by him on 7 May 2016, 18 August 2020, 7 February 2023 and 22 November 2024.
In his first statement, that applicant gave evidence that he was born in Australia and spoke English at home. The applicant completed primary and secondary school up until Year 10, obtaining his School Certificate. Following high school, the applicant completed a course in horse care and welfare at TAFE New South Wales. Prior to the work injury, the applicant was employed as a track work rider.
After the injury, from December 2015 onwards, the applicant worked in his own business, grooming dogs. The applicant was working approximately 25 hours per week but was able to take breaks and work at his own pace as it was his own business. The applicant continued with pain and took analgesics in order to be able to work. The applicant said he had no other choice but to work given his financial situation.
In the statement dated 7 February 2023, the applicant noted that he had undergone surgery to his lumbar spine on 7 April 2021. From the date of the surgery until 8 July 2021, the applicant received weekly payments from the respondent’s insurer. After that, the applicant resumed his part-time dog washing work.
The applicant noted that he had been certified by his general practitioner as having capacity to work in suitable duties for 20 hours per week. The applicant confirmed that he had performed no less than 15 hours per week of dog washing and estimated that he was currently working approximately 20 to 25 hours per week. The applicant continued to be troubled by ongoing pain in his lower back and was unable to undertake his pre-injury work as a track work rider.
The applicant said that when driving from job to job in the course of his employment as a dog washer he experienced severe pain in his lower back and could not drive for lengthy periods on an unrestricted basis.
In his most recent statement, the applicant confirmed that he had continued to perform no less than 15 hours per week of dog washing work and estimated that he generally worked approximately 20 hours per week. The applicant said that on days when he was in severe pain he did not work or might attend only one job. The applicant tried to spread his work over five days and generally worked no more than four to five hours per day.
The applicant said he continued to be troubled by ongoing pain in his lower back and struggled to take on any additional work or hours.
The applicant noted that it had been asserted by the insurer that he was able to work 30 hours per week in various jobs including courier, fast food delivery driver, enquiry clerk or customer service officer.
The applicant said he could not work in a full-time or part-time structured role because he required frequent rest breaks.
The applicant said that the walking, standing, waiting and frequent driving and alighting from a vehicle meant that he was not fit to undertake fast food delivery work. The applicant said he had no training or qualifications to enable him to work as an inquiry clerk or customer service officer. Due to his ongoing pain, there were days when the applicant was required to cancel dog washing jobs and reschedule. The applicant said that courier work would require him to remain seated for lengthy periods, carry and load objects and walk up and down stairs.
The applicant set out his annual earnings from his work as a pet groomer. In the financial year ended 30 June 2022, the applicant earned $8,053. In the financial year ended 30 June 2023, the applicant earned $24,196. In the financial year ended 30 June 2024, the applicant earned $18,284.
The applicant said he continued to struggle with ongoing back pain. The applicant said he was able to do sporadic dog washing but did not believe he would ever hold down a normal job where he was required to work a certain number of hours per day or week.
Certificates of capacity
The applicant’s general practitioner, Dr Saeid Tahmasebi certified the applicant as having no current work capacity between 7 April 2021 and 5 July 2021.
The applicant was then certified as having capacity for some type of work for four hours per day, five days per week from 7 July 2021 to 6 August 2021. The applicant’s carrying capacity and pushing/pulling ability was less than 5kg. The applicant could drive, sit and stand as tolerated. Bending was not allowed.
Dr Shahzad
The applicant relies on medico-legal reports prepared by consultant occupational physician, Dr Farhan Shahzad, dated 18 December 2024 and 8 April 2025.
In his first report, Dr Shahzad noted that the applicant had completed Year 10 at the age of 16 and had a certificate in horse husbandry from TAFE. The applicant had good English language skills and basic computer knowledge.
The applicant had worked as a strapper for two years and spent 20 years working with various trainers as a track work rider. The applicant’s pre-injury employment involved grooming, training and exercising racehorses.
Dr Shahzad noted that the applicant was currently self-employed as a mobile dog washer/groomer. The applicant’s work involved driving to clients with a dog trailer, lifting small dogs and walking larger dogs into the trailer, de-matting and detangling fur, bathing, conditioning and drying the pets, trimming their nails, brushing their teeth and cleaning their ears. The applicant worked in a limited capacity for around 20 hours per week, spread over five days.
Dr Shahzad took a history of the treatment the applicant received for his injury, culminating in the L5/S1 left foraminal discectomy and anterior lumbar interbody fusion on 7 April 2021. Post surgery, the applicant’s leg pain had largely resolved. The applicant reported persistent back pain and weakness in both legs. The applicant continued to visit his general practitioner and took pain relief medications. The applicant reported that standing for long periods and getting up from a seated position was particularly difficult.
Dr Shahzad noted that the applicant had been certified as fit to perform suitable duties for four hours per day and five days per week with medical restrictions. It was further noted that a vocational and functional assessment conducted at the insurer’s request in April 2023 determined that the applicant could potentially work 30 hours per week in sedentary and light roles.
Dr Shahzad gave the opinion that the applicant had a poor prognosis and was unfit to return to work. The applicant would benefit from continued support and management involving pain medication and physiotherapy along with reviews with a spinal surgeon. Dr Shahzad explained:
“Mr Raso was employed as a track horse rider, a physically demanding role involving extensive physical exertion. Since the accident, he has been unable to return to his former career due to persistent back pain, leg weakness, and other symptoms. His condition has affected his ability to perform physically demanding tasks, such as those required in his previous job. While he continues to work in a reduced capacity as a mobile dog groomer, his limitations, including back pain, weakness, and numbness in his legs, restrict his work activities. Therefore, I opine that he is unfit to work.”
In his supplementary report, Dr Shahzad clarified that in stating that the applicant was “unfit to work” he was referring specifically to the applicant’s ability to perform his pre-injury work as a horse/track rider given the physical limitations and ongoing symptoms he was experiencing.
Dr Shahzad was asked whether the applicant had an ability to work 30 hours per week in sedentary or light roles, noting that he was currently working 20 hours per week on restricted basis. Dr Shahzad responded:
“In my opinion as an occupational physician, Mr Raso would be unable to work 30 hours per week as either a Dog/Pet Groomer, Fast Food Delivery Driver, Inquiry Clerk, or Customer Service Officer. Given his ongoing physical limitations, including back pain, weakness, and numbness in his legs, it is unlikely that he would be able to work 30 hours per week, even in a restricted capacity, without exacerbating his symptoms.”
Asked to comment specifically on the applicant’s capacity to work as a fast food delivery driver, inquiry clerk or customer service officer, Dr Shahzad stated:
“Considering Mr Raso’s current physical limitations, including back pain, weakness, and numbness in his legs, I do not believe he has the capacity to work as a Fast Food Delivery Driver. However, he may have the capacity to work as an Inquiry Clerk or Customer Service Officer on a part-time basis for 20 hours per week, provided the duties are light and sedentary, with appropriate accommodations to manage his symptoms.”
Capacity assessments
The respondent procured a functional capacity assessment from the Vocational Capacity Centre dated 20 April 2017. That report found that the applicant was, at that time, physically capable of working on a full-time basis in suitable employment. Various vocational options were considered including the applicant’s current job as a dog groomer. The gross “market pay rate” for a dog groomer as at 2015 was noted to be $525.70 for 20 hours part-time or $999 full-time.
The report noted that the applicant’s reading skills were assessed to be in the well below average range:
“Mr Raso’s general reasoning score was assessed to be in the average range. His reading score was assessed to be in the well-below-average range. Mr Raso’s reading score is consistent with his reports of significant difficulties with reading while at school. Mr Raso said that he has long suspected that he suffers from dyslexia, although apparently this has never been formally investigated. Mr Raso’s reasoning score, on the face of it, indicates a person capable of training up to the trade level. However, his major limit on his vocational capacity, other than any physical restrictions due to the accident in question, relate to his reading ability. It is strongly recommended that Mr Raso further investigate the cause of his reading problems and undertake whatever additional training is deemed necessary in order to improve his skills in this area. If Mr Raso improved his reading ability, his vocational capacity would be significantly enhanced.”
The report noted that the applicant had a personal computer at home and was proficient with email, Word and Excel. The applicant could use internet banking, eBay and in the past, had used online gambling sites.
The respondent also relies on an Earning Capacity Assessment performed by Compensation Assistance Services Pty Ltd (CAS) dated 24 May 2023.
According to that report, the applicant described his current employment as follows:
“Mr Raso reported he currently works as a mobile dog groomer for five to six hours per day, five days per week. He said the average time spent grooming each dog is 40 minutes. He said he needs to lift small dogs and can walk larger dogs into the grooming trailer. He said he mostly stands and finds bending to clip claws the hardest aspect of the job. He said that due to the prolonged standing, he needs breaks between grooms. He said his clients use an app to book appointments.”
The applicant’s education and work experience were noted. The applicant was said to have demonstrated customer service, interpersonal and communication skills in his previous employment.
According to a functional assessment, the applicant was fit for sedentary to light levels of work.
The assessor gave the opinion:
“In the assessor’s opinion, Mr Raso is fit for full-time work. He demonstrated multiple functional activities without issue, e.g., no additional pain, including stair climbing, crawling, reaching forward, reaching overhead, and fine motor skills. Regarding pain, his reported levels remained between low/mild to moderate throughout the assessment, i.e., the highest reported pain was 4/ 10 following the manual handling assessment. Furthermore, he demonstrated the ability to intermittently perform more challenging activities, e.g., lifting from the floor, squatting, and bending forward.”
The assessor did not consider the applicant could increase his current hours of 30 per week as a dog groomer given the prolonged standing required beyond the applicant’s ideal tolerance and the consequential need for breaks.
The following limitations were recommended:
“• Lifting bilaterally up to 6 kilograms from floor to waist height, 7.5 kilograms from waist to chest height and 5 kilograms from chest height to overhead.
• Carrying up to 5 kilograms bilaterally and 5 kilograms with the left and right arms. • Avoid repetitive bending, squatting, and twisting.
• Avoid stooping and other awkward spinal positions.
• Avoid prolonged walking.
• To have the ability to adjust/ alternate position, e.g. sitting and standing, as required.”
The assessor recommended the roles of Fast Food Delivery Driver, Inquiry Clerk or Customer Service Officer as suitable. It was stated that the applicant could earn $1,060.96 gross per week based on 38 hours as a Fast Food Delivery Driver or $1,106.18 gross per week as an Inquiry Clerk or Customer Service Officer.
Dr Bentivoglio
The respondent relies on a medico-legal report prepared by neurosurgeon, Dr Peter Bentivoglio on 24 April 2023. Dr Bentivoglio had previously prepared reports on 10 July 2017 and 9 August 2017.
Dr Bentivoglio took a history of the injury and subsequent treatment that was consistent with the other evidence. The applicant’s current symptoms were described as follows:
“His current symptoms are low back pain brought on by bending and numbness in his left leg and weakness and cramping of his right leg. He still gets these symptoms today. He rates his low back pain as 5-8/10 and the right leg pain is anywhere between 0-9/10, rating 9 when he gets the cramping in his leg. There is no left leg pain. His walking is normal. He can drive for an hour or two. He is restricted in his home domestic duties.”
The applicant was noted to be taking Lyrica, Maxigesic and Voltaren on a daily basis.
The applicant reported that he was working as a dog groomer for six hours per day five days per week.
Dr Bentivoglio said he did not find any signs of exaggeration or inconsistent responses and the examination was reliable. With regard to the applicant’s capacity to work, Dr Bentivoglio gave the opinion:
“I do not believe he is incapacitated to work. He has to do appropriate work and he is doing that and he has been doing it since the first operation, which is as a dog groomer, and he is working 6 hours a day, 5 days a week. He seems to be able to cope with this. He says this is a lot less physically demanding than working as a jockey. He seems to be able to cope with that and I would recommend he continue it.”
Asked specifically how many hours per week the applicant could work, Dr Bentivoglio responded:
“At this stage, he is working 30 hours a week and I think that is probably appropriate in the job that he is currently working. He will never get back to work as a track work rider because this is far more physically demanding and his back will not tolerate it. I have clearly stated that he is currently working about 30 hours a week as a dog groomer and he seems to be able to cope with that.”
Dr Bentivoglio did not consider that the applicant should increase his working hours. Asked about other particular roles the applicant could perform, Dr Bentivoglio stated:
“From the point of view of his lumbar spine, he could do clerical or administrative type work, depending on whether his education is high enough to do that. He probably could do driving as a courier with light activities. He could do customer service activities.”
Business and financial records
The applicant’s income tax returns between 2017 and 2024 are in evidence. In the relevant period, the returns confirm that the applicant worked as a “pet groomer”.
For the year ending 30 June 2022, the applicant declared a net business income of $8,053 from a gross business income of $40,680.
For the year ending 30 June 2023, the applicant declared a net business income of $16,599 and gross business income of $54,035.
For the year ending 30 June 2024, the applicant declared a net business income of $18,284 and gross business income of $55,885.
Also amongst the materials in evidence are tax returns for the applicant’s spouse, Rebecca Raso for the years ending 30 June 2021, 2022 and 2023, indicating that she also claimed income and expenses from a mobile dog grooming business.
Work diary entries for the business show bookings between 28 July 2023 and 6 March 2025. Bookings varying in duration were shown for approximately 20 to 23 dogs per week.
Applicant’s submissions
The applicant noted that he was 46 years old and had worked as a jockey prior to the work injury.
The applicant submitted that the legislation required the Commission to consider the amount the applicant was able to earn in “suitable employment” or his current weekly earnings. Noting the definition of suitable employment in s 32A of the 1987 Act, the applicant submitted that the Commission had to consider the applicant’s age, education, skills and work experience.
The applicant noted that the evidence from Dr Shahzad suggested that he had an ability to earn in the vicinity of $600 per week, representing $30 per hour for 20 hours per week. Dr Shahzad thought the applicant may have capacity to work as an Inquiry Clerk or Customer Service Officer on a part-time basis for 20 hours per week, provided the duties were light and sedentary, with appropriate accommodations to manage his symptoms.
Dr Bentivoglio recorded that the applicant had persistent low back pain, persistent radiculopathy and numbness at left leg. The applicant’s presentation was observed to be consistent with no signs of exaggeration. It was observed that the applicant was able to cope with his current work. Various restrictions were recommended.
The applicant observed that he was trained and had only ever worked as a jockey. The applicant also noted that the functional capacity assessment from the Vocational Capacity Centre dated 20 April 2017 referred to his suspected dyslexia and well-below average reading ability.
In those circumstances, it would be difficult for the applicant to transition into clerical work despite the capacity assessment stating the applicant had that ability.
The applicant observed that he had a significant injury requiring two surgeries. The applicant had done his best to return to work. His presentation had been noted to be consistent.
Having regard to the market pay rates suggested in the Vocational Capacity Centre’s report, the applicant submitted that he had a capacity to earn around $500 per week and up to $600 per week in suitable employment.
The applicant noted that the insurer’s work capacity decision applied the maximum possible amount the reports suggested he could earn. The decision failed to take into account the nature of the applicant’s incapacity and significantly overestimated his capacity to earn.
While accepting that the respondent should have credit for payments already made, the applicant submitted that the Commission should order discretionary interest of the difference between what the insurer found he could earn and what the Commission ordered at a rate of 2% above the Reserve Bank cash rate.
The applicant submitted that the insurer should have reassessed his capacity after the second surgery but did not do so until February 2023. The applicant submitted that interest should be ordered from 30 September 2021.
Respondent’s submissions
The respondent submitted that the applicant bore the onus of demonstrating that he was entitled to a higher rate of weekly compensation.
The respondent submitted that the Commission should find that the applicant could work at least 30 hours per week. Dr Bentivoglio was told the applicant was working 30 hours per week. The Earning Capacity Assessment dated 24 May 2023 also indicated that the applicant was working 30 hours per week.
The restriction to 20 hours per week came from Dr Shahzad. The respondent submitted that Dr Shahzad’s first report was nigh on useless. Dr Shahzad said the applicant had no work capacity, although later he clarified that he was referring to the applicant’s capacity to work in pre-injury duties.
The respondent observed that there were some certificates of capacity in evidence but they did not cover the duration of the claim.
The respondent referred to the business diary entries and said they seemed to contradict what the applicant said in his statement evidence. It was apparent from the diary entries that the applicant was earning $50 per dog washing several dogs per week. The applicant’s tax returns suggested the applicant had claimed substantial sums as business expenses including $14,000 for motor vehicle expenses. The respondent submitted that the income after the claimed business expenses was not a reliable indicator of the applicant’s capacity.
The respondent noted that the applicant’s work as a dog groomer involved some physical work including handling dogs of various sizes. The work was not sedentary and involved driving.
The respondent submitted that the applicant could work 30 hours per week at $30 per hour reflecting an earning capacity of $900 per week. At a bare minimum, $750 per week might be considered, however, $25 per hour was too low.
The respondent submitted that the Commission ought to have regard to the fact that the applicant had conducted a business for 10 years. This involved customer facing skills, invoicing and some computer skills. The applicant was quite young. The evidence about the business and the manner in which it was carried on was quite scant but it was clear that the applicant was working more than 20 hours per week.
The respondent noted that the PIAWE figure was indexed and submitted that there should be some indexation of what the applicant was able to earn. The differential ought to be roughly the same. To find otherwise would lead to an unfair and unjust result.
The respondent submitted that the work capacity decision was reasonable and supported by the vocational reports. Dr Bentivoglio had endorsed the respondent’s position. In contrast, Dr Shahzad had provided an opinion which was unsupported by evidence. Dr Shahzad did not explain why the applicant could work 20 hours per week but not 30 hours per week. His earlier report was affected by error.
The applicant’s physical restrictions were thoroughly addressed in the vocational reports. The applicant had demonstrated a capacity to work for several years despite undergoing two operations. Not enough information had been provided by the applicant regarding the hours he worked and how his business operated. In the circumstances, the Commission would conclude that the work capacity decision constituted a fair representation of the applicant’s ability to earn.
The respondent submitted that the power to order interest was discretionary. There was no letter of demand or claim. The applicant could have brought proceedings to challenge the work capacity decision at an earlier date. Proceedings in the Commission were not commenced until February 2025. The applicant had not acted expeditiously to challenge the insurer’s decision. The approach advocated by the applicant for interest from 2021 was erroneous.
Applicant’s submissions in reply
The applicant agreed that indexation ought to apply to the PIAWE rate.
The applicant submitted that his evidence was broadly consistent with the tax returns. The applicant’s business income was approximately $1,000 per week. The business was a mobile dog grooming business and so required the applicant to drive to his customers. The applicant’s expenses were about $600 per week.
The applicant noted that he had not been crossed examined and there was nothing to suggest his evidence was inconsistent.
The applicant submitted that Dr Shahzad’s opinion was supported by reasoning. Dr Shahzad noted that the applicant had undergone surgery, had restricted movements and ongoing symptoms at his back radiating into his legs. The applicant observed that the medical evidence with regard to his ongoing symptoms and restrictions was largely consistent.
The applicant observed for the purposes of the interest claim that letters of demand were sent on 3 February 2022 and 9 February 2023.
FINDINGS AND REASONS
Capacity
The applicant claims weekly compensation pursuant to s 38(7) of the 1987 Act from 8 July 2021 to date and continuing at a higher rate than that at which he has been paid to date.
Subsection 38(7) governs the rate of pay and relevantly provides:
“(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.”
The term ‘AWE’ is defined in s 35 of the 1987 Act to mean “the worker’s pre-injury average weekly earnings” (PIAWE).
The term ‘D’ means:
“…the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker”.
The term ‘E’ means the amount taken to into account as the worker’s earnings after the injury, calculated as the greater of the amount the worker is able to earn in suitable employment or the worker’s current weekly earnings.
The term ‘MAX’ means “the maximum weekly compensation amount”.
The expression, “suitable employment” is defined in s 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.”
In Wollongong Nursing Home Pty Ltd v Dewar[1] Roche DP commented on this definition:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
[1] [2014] NSWWCCPD 55.
The evidence regarding the nature of the applicant’s incapacity resulting from the injury on 26 May 2015 is broadly consistent. The applicant sustained a significant injury to his lumbar spine which required surgical intervention in 2016 and again on 7 April 2021. There is no dispute that for a period after the second surgery the applicant had no current work capacity. The dispute in these proceedings concerns the extent and quantification of the applicant’s incapacity in the period from 8 July 2021 onwards.
The applicant has, in his statement evidence, described ongoing symptoms of pain in his lower back fluctuating in severity.
Dr Shahzad recorded that the applicant had reported persistent back pain and weakness in both legs. The applicant continued to consult his general practitioner and took pain relieving medications. The applicant reported that standing for long periods and getting up from a seated position were particularly difficult.
The independent expert qualified by the respondent, Dr Bentivoglio, also recorded that the applicant continued to experience symptoms of lower back pain as well as numbness and weakness in his left leg and weakness and cramping of the right leg. The applicant’s low back pain ranged between 5 and 8 out of 10. The applicant was taking Lyrica, Maxigesic and Voltaren on a daily basis.
Despite experiencing ongoing symptoms and requiring medication on a daily basis, the applicant has returned to work in his own mobile dog grooming business. The evidence with regard to the nature and extent of the applicant’s work in the business has been criticised by the respondent as scant. While the nature of the applicant’s duties has been adequately described, the evidence with regard to the volume of work performed during the period in question is somewhat lacking.
There is a suggestion in the tax return documents that the applicant’s spouse may be involved in the dog grooming business although it is not clear what her role in fact was. Work diary entries for part of the period in question have been provided showing that the business was taking bookings for around 20 to 23 dogs per week. In some weeks there were more bookings and in some weeks there were less.
The applicant’s statement evidence was that he was working approximately 20 to 25 hours per week. The applicant said he was able to arrange his work around his symptoms. On days when he was in severe pain he might not work or only attend one job. Generally, the applicant worked no more than four to five hours per day over five days per week.
The Certificates of capacity from the applicant’s general practitioner certified him as having capacity to engage in suitable work for 20 hours per week. It is noted, however, that the certificates only cover the period up until 6 August 2021, which was around the time when the applicant first returned to work after a period of convalescence following the second lumbar surgery.
The applicant was reported to have told Dr Bentivoglio in April 2023 that he was working six hours per day, five days per week or 30 hours per week. The Earning Capacity Assessment performed in May 2023 also noted that the applicant was working five to six hours per day, five days per week. The average time spent grooming each dog was 40 minutes.
In his most recent report, Dr Shahzad disagreed that the applicant would be able to work 30 hours per week even in a restricted capacity due to his symptoms. Dr Shahzad noted that the applicant was currently working 20 hours per week and could continue to do so.
On this review of the evidence, noting the fluctuating nature of the applicant’s business as well as the fluctuating nature of his symptoms, I am satisfied that the applicant could, on average, during the relevant period, work for 25 hours per week in his dog grooming business. While at times I accept that he may have in fact worked more hours, I also accept that at times he may have in fact worked less hours.
It has been suggested in the more recent Earning Capacity Assessment, that the applicant could work up to 30 hours in more sedentary roles including those of fast food delivery driver, inquiry clerk or customer service officer. The applicant has submitted, however, that these did not constitute suitable roles having regard to the nature of his incapacity as well as his education, skills and work experience.
I accept that fast food delivery driver is unlikely to constitute a suitable role having regard to the nature of the applicant’s incapacity. Although the applicant’s current work involves driving from client to client, I accept that work as a fast food delivery driver would involve considerably more driving as well as more frequent alighting from a vehicle. Both Dr Shahzad and Dr Bentivoglio have commented that the applicant was limited in his ability to drive and found standing from a seated position particularly difficult.
While an inquiry clerk or customer service officer role may be less physically demanding and give the applicant an ability to adjust his position as required, I accept that there are real questions as to the suitability of such work having regard to the applicant’s education, skills and experience.
The applicant’s evidence is that having left high school in Year 10, he subsequently trained in and only ever worked in roles that involved the care and training of animals. While his current work has presumably involved a degree of customer interaction, it is primarily concerned with grooming dogs. The evidence demonstrates that the applicant has a “well below average” reading ability and possible dyslexia. This was not a matter commented upon in the more recent Earning Capacity Assessment. I am not satisfied, in these circumstances, that a clerical or customer service role is suitable for the applicant having regard to his education, skills and work experience.
In quantifying the applicant’s capacity to earn in suitable employment, the applicant has suggested that his declared income or “actual earnings” are an appropriate reflection of his capacity to earn in suitable employment. The respondent has suggested otherwise, submitting that it appeared the applicant was capable of earning significantly more than his net business income after the significant deductions of business expenses.
The 2017 report from the Vocational Capacity Centre included a labour market analysis that found that the market pay rate for a full-time dog groomer was $999 per week, or $525.79 for a part-time dog groomer working 20 hours per week (about $26 per hour). Accepting that the applicant had capacity to work as a dog groomer for 25 hours per week, that would correlate to an earning capacity of $650 per week.
The amount of $650 per week exceeds the applicant’s net business income or “actual earnings” at all relevant times during the period in question.
The respondent has submitted that this amount ought to be indexed periodically in line with the indexation of the applicant’s PIAWE. The applicant did not make submissions to the contrary. Given that the claim for past weekly compensation spans a period of almost four years, and that the rate of $26 per hour was taken from a publication which is now almost 10 years old, I accept that there is merit in the respondent’s submission.
I find that the amount representing “E” for the purpose of s 38(7) of the 1987 Act was, at 8 July 2021, $650 and ought to be indexed at the same rate as the accepted PIAWE figure in accordance with the table below:
Date
Indexation rate
PIAWE[2]
‘E’ earnings
8/7/2021 to 30/9/2021
N/A
$1,250.16
$650
1/10/2021 to 31/3/2022
1.0119
$1,270
$658
1/4/2022 to 30/9/2022
1.0184
$1,290
$670
1/10/2022 to 31/3/2023
1.0337
$1,330
$692
1/4/2023 to 30/9/2023
1.0414
$1,390
$721
1/10/2023 to 31/3/2024
1.0237
$1,420
$738
1/4/2024 to 30/9/2024
1.0179
$1,450
$751
1/10/2024 to 31/3/2025
1.0198
$1,470
$766
1/4/2025 to date and continuing
1.0043
$1,480
$769
[2] Rounded in accordance with s 82D of the 1987 Act.
I note that the wages schedule annexed to the Application to Resolve a Dispute at p 252 suggests that there may have been a period remaining in which the applicant was entitled to compensation under s 41 of the 1987 Act at the rate in s 37(2)(a) being, “(AWE × 95%) −
(E + D)”. This was not addressed in the respondent’s evidence and was not the subject of submissions. In the circumstances, I consider it appropriate to leave the final calculations to the parties, with liberty to apply.The applicant has conceded and I accept that it is appropriate that the award for weekly compensation be reduced by the amount already paid to the applicant in the relevant period in accordance with s 46 of the 1987 Act.
Discretionary interest
Section 109 of the 1998 Act provides:
“109 Interest before order for payment (cf former s 113)
(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section:
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3) This section does not:
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
In Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burragong Pet Foods Pty Ltd,[3] Deputy President Fleming discussed the reasoning behind an award of interest and the relevant interest rate. She said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSW CCR; Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139).”
[3] [2005] NSWWCCPD 9.
The discretion to award interest is subject to the limitations set out in ss 109(2) and (3). Relevantly, sub-s (2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for the compensation was “duly made”.
In Kaur v Thales Underwater Systems Pty Ltd[4] (Kaur), President Keating J stated at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
[4] [2011] NSWWCCPD 6 at [139].
The phrase “duly made” has been held to mean “fully particularised”.
While a claim for compensation was made by the applicant shortly after the injury occurred in 2015, the current proceedings concern a claim for compensation pursuant to s 38 of the 1987 Act after 260 weeks on the basis that the degree of permanent impairment resulting from the injury was more than 20% for the purposes of s 39 of the 1987 Act. This entitlement only arose following the assessments of impairment which took place after the second surgery.
I do not accept that the claim was fully particularised at the time of the second surgery. While letters of claim were forwarded to the insurer in 2022 and again in 9 February 2023, particulars relevant to the claim continued to be provided as recently as the Application to Lodge Additional Documents lodged on 17 April 2025 annexing Dr Shahzad’s supplementary report, which was admitted at the arbitration hearing.
In the circumstances, I do not believe it is appropriate that I exercise my discretion to award the applicant interest on the award of weekly benefits, pursuant to s 109(1) of the 1998 Act, and I decline to do so.
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