Riley v BCS Infrastructure Support Pty Limited
[2022] NSWPIC 89
•28 February 2022
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Riley v BCS Infrastructure Support Pty Limited [2022] NSWPIC 89 |
| APPLICANT: | Darren Riley |
| RESPONDENT: | BCS Infrastructure Support Pty Limited |
| PRESIDENT’S DELEGATE: | Kathryn Camp |
| DATE OF DECISION: | 28 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Work capacity dispute; whether the applicant is able to work in “suitable employment”; whether the role of electrical product assembly is suitable employment; section 32A of the Workers Compensation Act 1987; Held– applicant is able to work in suitable employment; work capacity decision upheld; applicant’s claim for compensation declined. |
| DETERMINATIONS MADE: | The applicant’s application for an interim payment direction is declined. |
INTERIM PAYMENT DIRECTION
STATEMENT OF REASONS
INTRODUCTION
This matter concerns a dispute relating to a Work Capacity Decision which determined that the applicant worker’s entitlement to weekly payments of compensation would reduce for reason that he is able to undertake suitable employment within the meaning of s 32A of the Workers Compensation Act 1987 (the 1987 Act). For the reasons discussed below, the applicant’s claim for compensation is unsuccessful.
BACKGROUND
On 13 October 2020, the applicant sustained an injury to his right wrist while in the course of his employment with the respondent. The applicant was employed as a system’s technician and was installing a steel guard to a new conveyor belt when he sustained the injury.
The respondent accepted the applicant’s injury in the nature of “synovitis and tenosynovitis, right hand” and made payments of compensation, including weekly payments of compensation.
On 19 August 2021, iCare issued a Notice of Decision pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to the applicant that his weekly payments would be reduced to $199.50 from 1 December 2021. The reason for this decision was based on the following factors:
(a) Dr Shantha Batuwangala, the applicant’s treating general practitioner, had certified the applicant fit for suitable employment 40 hours per week from 13 October 2020;
(b) the vocational options of electrical product assembly, test and tag technician, and electrical service technician are suitable employment options. In support, the respondent relies on:
(i)the vocational report by Recovery Partners, dated 29 April 2021;
(ii)Dr Batuwangala’s approval of these vocational options as suitable employment on 19 May 2021;
(iii)that the role of electrical product assembly is the most suitable vocational option, which satisfies the 10kg lifting restriction;
(iv)the applicant is participating in Job Seeking Assistance program, approved by EML, via Rehabilitation Provider Recovery Partners;
(v)the vocational assessment report finds that the applicant can secure new employment independently, and
(vi)the Labour Market Analysis by Recovery Partners, indicates employers for each of the roles noted the applicant would be suitable based on his skills, knowledge and experience.
(c) the applicant has capacity to earn $1,558 per week in suitable employment.
On 30 November 2021, the applicant lodged an Application for Expedited Assessment (Form 1) (Application) claiming weekly benefits where a work capacity decision is in dispute.
On 8 December 2021, the respondent lodged a Reply to the Application.
On 13 December 2021, the applicant lodged an Application to Admit Late Documents (AALD).
PROCEDURE BEFORE THE COMMISSION
On 15 December 2021, I convened a telephone conference to resolve the dispute. The applicant attended the telephone conference, with his solicitor Ms Jamie-Lee Hayes of Turner Freeman Lawyers. The respondent was represented by its solicitor Mr Dennis Kim of Gair Legal.
The parties were unable to reach a resolution of the dispute and provided oral submissions during the telephone conference. The parties were informed of my intention to determine the dispute following the telephone conference.
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 to bring the parties to the dispute to a settlement. 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
The parties agreed, during the telephone conference, that the following issue remained in dispute:
(a) whether the applicant has capacity to work in “suitable employment”, having regard to the meaning of that phrase under s 32A of the 1987 Act. That is, whether the roles identified by the insurer, namely the roles of electrical product assembly, test and tag technician and electrical service technician, is suitable employment.
There was no dispute as to the following matters:
(a) the applicant’s pre-injury average weekly earnings is $1,850;
(b) the applicant’s capacity is, as set out in the work capacity certificate of 30 November 2021, of eight hours per day, five days per week with lifting restrictions, and
(c) the AALD lodged by the applicant on 13 December 2021 is admitted into the proceedings, by consent.
EVIDENCE
The following documents were in evidence before me and have been considered in determining this dispute:
(a) Application, and attached documents;
(b) Reply, and attached documents, and
(c) AALD, and attached documents.
Applicant’s statement
In evidence is a statement prepared by the applicant, dated 11 November 2021. The applicant provides a history of his education and work experience, together with several injuries sustained in the workplace. The applicant states that he studied electrical trade at TAFE Petersham and post-trade electronics at TAFE Mt Druitt. He states that he worked as an industrial electrician, where his main duties “involved maintenance and repairing of freight/sortation equipment which was quite repetitive work”. He also states that he subsequently worked as a systems technician.
Relevantly, on 13 October 2020, the applicant states that he received a separate injury to his right wrist while at work. He states that he was installing a steel guard to a new conveyor belt when the cordless drill (drill bit) suddenly jammed and violently twisted his right upper limb. The applicant states that he reported the injury and visited his general practitioner. He further states that his general practitioner “did not want to be involved with another workers compensation claim as BCS were difficult to deal with [in the previous claim]”. However, the general practitioner provided him with a medical certificates certifying him unfit to return to work until 16 October 2020.
The applicant states that on or about 3 December 2020, his employment with the respondent was terminated because he was no longer suited to the role. He has not returned to work since.
On 2 September 2021, he was given a corticosteroid injection at the hand of Dr Simon Chan, orthopaedic surgeon. He did not have a stable response to the injection.
The applicant asserts that he continues to suffer ongoing disabilities and symptoms as a result of his right wrist injury. He suffers constant pain in his right wrist which is “aggravated when carrying objects such as a frying pan or rake” and with twisting activities. He states that he is unable to lift “any objects at head height as this aggravates my wrist injury”.
In respect the vocational options identified by the respondent insurer, the applicant makes the following assertions.
Electrical product assembly
The applicant asserts that this job “involves putting together components and subassemblies that go into the production of metal products, electrical and electronic equipment, jewellery and precious metal articles, and joinery products”. He adds that it involves welding, which he has no training. He further adds that it involves “general light engineering tools” which he would not be able to do without aggravating his right wrist.
The applicant further states:
“As a result of my of my right wrist injury I experience difficulty performing repetitive tasks with my hands. Therefore I would not be able to work as an electrical product assembly worker as this involves holding welding, soldering, brazing, riveting and/or grinding equipment. Furthermore, the role requires use of a wide range of engineering and mechanical hand, power and machine tools.
I have not used powered hand tools since the date of my injury so as to avoid further aggravation of my right wrist injury.”
Test and tag technician
The applicant states that he has worked as a test and tag technician. However, he states that he would not be able to return to this type of employment due to his back injury.
The applicant contends that this role involves climbing ladders and working at heights. He states he avoids climbing ladders as he experiences “difficulty supporting the wright of [his] body with [his] right hand”. He adds that the role occasionally requires repetitive movements of the hands for screwing and unfastening bolts and attaching wiring, which would cause pain. He further adds that his “right wrist pain is aggravated with twisting activities”. In addition, the role requires use of a “wide range of small hand and power tools” which he has not been able to use since his injury to “avoid further aggravation”.
Electrical service technician
The applicant states that he does not have experience with “audio and visual reproduction equipment including home entertainment systems and computers” for this role. He adds that he has “basic computer skills and would therefore not be able to properly perform this role”.
The applicant asserts that he would be “expected to crawl through roofs which would aggravate [his] wrist injury” and occasionally climb ladders when he experiences difficulty supporting the weight of his body with his right hand.
The applicant also contends that this role also requires a wide range of small hand and power tools, which he has been unable to use since his injury “to avoid further aggravation”.
Medical evidence
Dr Batuwangala
In evidence are the clinical notes of Dr Batuwangala, including several medical certificates. In the progress notes of 2 February 2021, Dr Batuwangala records pain in respect of the wrist. On 16 February 2021, Dr Batuwangala records that the applicant awaits specialist opinion and “improving ROM but strength still same not improved a lot”. The next relevant entry is 9 April 2021, which records “1 wrist stated EP no great change”. The last progress note is 7 May 2021, which does not specify details regarding the applicant’s right wrist.
From October 2020, Dr Batuwangala has certified the applicant to have capacity for some type of work eight hours per day, five days per week with restrictions.
On 19 May 2021, Dr Batuwangala, answered a questionnaire issued by the respondent insurer. In response to the question of whether he considered the applicant would be able to return to his pre-injury functional capacity, Dr Batuwangala said: “[h]e is still recovering from back and wrist injury but depending on how he improves with time”. In respect of treatment plans, it was recommended that the applicant “continue with his physio and EP for rebuilding and strengthening program”. The following vocational options were approved: electrical product assembly (Max wt 10-15kg caution in wrist); test and tag technician (Max wt lifting 10-15kg) and electrical service technician (keep lifting to max 10-15 kg).
On 7 December 2021, Dr Batuwangala referred the applicant to Dr Alister Ramachandran for an opinion and care in relation to his right wrist.
Dr Simon Chan
On 21 January 2021, Dr Simon Chan, the applicant’s treating orthopaedic hand and wrist surgeon, issued a report. Dr Chan takes a history that the applicant is a right-handed system technician and that his other activities include rifle shooting and archery. He notes that the applicant just returned to work following a back injury, when he sustained the present injury.
Dr Chan records that the applicant underwent radiological investigations, and that an ultrasound reported radiocarpal joint synovitis. The applicant underwent physiotherapy. Dr Chan adds:
“He has had an improvement, but this has plateaued. He has ongoing pain in the same region. He has difficulty turning doorknobs, cutting vegetables and turning an ignition key. He has difficulty holding a kettle containing more than 1 L. He has noticed a slight click in his wrist. There has been occasional paraesthesia over the dorsoradial hand.”
Dr Chan records his findings on examination, including tenderness over the carpal boss and slight tenderness over the ulnar side of the thumb MCP joint. He refers the applicant for a bone scan to help localise his pathology.
On 18 February 2021, Dr Chan reports that the bone scan demonstrated increased uptake around his carpometacarpal boss. He refers him for an ultrasound.
On 18 March 2021, Dr Chan reports that the applicant’s pain in his right hand had returned to its “pre-injection state”. He recommends a further consultation to discuss excision of the carpal boss if the hand did not settle.
On 2 September 2021, Dr Chan issued a further report. In that report Dr Chan records a history of ongoing pain along the index ray and pain occurring when “carrying objects like a frying pan or a rake” and “[w]ith twisting activities”. On examination, Dr Chan records tenderness over the radial midcarpal join and dorsal scapholunate interval. He concludes:
“[The applicant’s] ongoing symptoms seem to be related to the dorsal intercarpal ligament. I gave him a local anaesthetic and corticosteroid injection. The local anaesthetic component gave him quite good relief.”
On 23 September 2021, Dr Chan issued another report. In that report Dr Chan records similar symptoms to 2 September 2021. He states that the applicant has had a mixed response to the steroid injection and was therefore reluctant to suggest surgery.
On 18 November 2021, Dr Chan issued another report. He records that the applicant:
“has had ongoing dorsoradial pain. He has not noticed any distinct pattern to the pain. He has been hesitant to use his hand, for a fear of aggravating his symptoms and damaging his wrist.
On examination, the superficial radial nerve sensation was slightly altered. The ever was not irritable. I could not elicit a Tinel sign. There was no specific area of tenderness today.
[The applicant] and I had a lengthy discussion. I do not have any surgical solution to offer him. He does not need to see me again. I have, however, suggested that he can use his hand. His scans have not demonstrated any major structural abnormality, so he will not cause any irreparable damage, even if he has some pain or discomfort.”
Dr Sunner
On 15 July 2021, Dr Pavitar Sunner, orthopaedic surgeon, prepared a report. In that report, Dr Sunner records a history of the injury and current symptoms. He records that the applicant continues to experience pain, with any twisting or rotation movements of the hand or wrist region. It is painful when he tires to pick up any awkward objects, when he is driving, has to use push and pull manoeuvre with the steering wheel. He adds that picking up any heavy objects such as a cast iron frypan or a kettle is very painful. He adds that he experiences some ache in the forearm region. He further adds that “at rest the pain can be from zero to 2 but when he is twisting it can be 8 to 9 out of 10”.
Dr Sunner records:
“In terms of function issues he says that he gets some pain with dressing and undressing, particularly when he is putting on a heavy jacket. Pulling up socks is also painful. He can still wash his hair without much pain. He says that he lives by himself on acreage, and he is unable to prepare the firewood or spread pesticides around the property. He is unable to go up and down ladders. He says that he does not do much during the day given the fact that he has no work.”
Dr Sunner also records his examination findings. In response to specific questions, Dr Sunner records that the applicant has “a nonspecific diagnosis of wrenching injury to his right hand and wrist region”.
In response to a question about the applicant’s current work capacity, Dr Sunner records:
“This is purely based on his pain, and he reports that he has 8 to 9 out of 10 pain when he is doing any twisting movements with that hand or wrist. Based on that
I would say that his work capacity is that of an office or clerical duties with lifting limits of less than 2 kilograms with that hand.”Dr Sunner said that given the vague nature of the applicant’s diagnosis or a specific injury, it is difficult to give any definitive timeframes on when the injury is likely to resolve or the applicant is able to return to pre-injury duties. He said it depends on how the applicant “responds to further treatment by the hand surgeon where I understand surgery has been proposed”.
Radiological investigation reports
In evidence are several radiological investigation reports. An MRI right wrist/hand report, dated 11 August 2021, records:
“1. There is ulnar negative variance and mild volar subluxation of the ulnar relative to the distal radius, with attenuation of the ulnar styloid attachments of the triangle fibrocartilage complex including the dorsal distal radioulnar ligament.
2. Mild subluxation of the ECU tendon raising the possibility of stripping of its subsheath.
3. Chondral loss and oedema in the proximal pole of the hamate.
4. Ganglion ventral to the scaphoid fossa.”
Vocational assessment report
On 6 April 2021, Recovery Partners issued a vocational assessment report of the applicant. In that report is a heading “Self-Reported Physical and Functional Tolerances”. Relevantly, in respect of gripping, it records “[r]educed grip strength on right side due to wrist injury. Will drop items when holding with right hand only, Cannot open certain door knobs due to reduced strength in wrist”.
The applicant’s educational history is recorded. It records that the applicant has completed Post Trade Electronic Certificate (1986 TAFE Mt Druitt), Industrial Electronics Certificate (1985 TAFE Mt Druitt), and Electrical Trades Certificate (1984 TAFE Mt Druitt). In respect of computer literacy, it records that the applicant has “used computers extensively in the workplace” for running diagnostics, using software operating machines and SAP. However, the applicant has limited experience and skills in MS Office software.
The applicant’s employment history is recorded. He was a freight technician from 2014-2019 and an electrician from 2013-2014, 1983-2012.
The report records that the applicant would benefit from “Rehabilitation counselling” to provide him with information and support for returning to work. It also records that the applicant would also benefit from psychological counselling.
The report recommends the vocational roles of electrical product assembly, test and tag technician and electrical service technician.
In respect of the role of electrical product assembly, the report records that no formal qualifications were required to undertake this role and that some on the job training may be provided. It also records that a certificate I or II in a related manufacturing field “might be helpful”. In respect of the typical physical demands of the job, it records amongst other things:
“Repetitive tasks are frequent especially in the use of hands and arms for holding welding, soldering, brazing, riveting or grinding equipment.
…
Uses a wide range of engineering and mechanical hand, power and machine tools.”
The typical work tasks and functional requirements of the role include lifting items which “will weigh up to 2kg”.
On 25 August 2021, Recovery Partners issued a return to work progress report. It records that Recovery Partners is providing the applicant with vocational counselling and offering to provide job seeking assistance. The vocational options identified by the insurer were recorded as return to work goals.
On 27 September 2021, Recovery Partners issued a further return to work progress report. The vocational options identified by the insurer were recorded as return to work goals. The barriers to return to work were noted to concern the need to avoid heavy manual work due to low back injury. It also records that the applicant is apprehensive about actively seeking work without further assessment and review of wrist condition by his treating hand surgeon.
SUBMISSIONS AND DISCUSSION
The applicant and respondent provided oral submissions during the telephone conference which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.
Whether the applicant has capacity to work in “suitable employment”, having regard to the meaning of that phrase under s 32A of the 1987 Act.
Electrical product assembly
Submissions
The applicant submits that the medical information and his statement demonstrate that the role of electrical product assembly is not suitable employment. Firstly, the applicant submits that this role involves welding, which the applicant believes would “aggravate his right wrist pain”. Secondly, the applicant asserts that he has “never been trained to weld and does not believe he can perform the role”. Thirdly, the applicant refers to Dr Chan’s report of 21 January 2021 where he records a history of difficulties with daily activities, including holding a kettle and turning doorknobs. Lastly, the applicant states that the duties involve repetitive use of “power tools” and while the general practitioner certified the role he said “caution in wrist”.
The respondent submits that there is no medical evidence to support the applicant’s position. The respondent asserts that it is the perception of the applicant that he will be caused pain by undertaking the duties of the vocational options or that he perceives he receives pain. The respondent asserts that the medical evidence supports this. In respect of the role of electrical product assembly, the respondent asserts that not all roles as an electrical product assembly require welding. The evidence provides that some roles require soldering, and the applicant has the relevant skills.
Consideration
The present dispute concerns the applicant’s work capacity and ongoing payments of weekly compensation. The dispute is governed by the Commission’s expedited assessment procedure under Pt 5 of the 1998 Act. In particular, s 297(1) of the 1998 Act provides that an interim payment direction may be issued for the payment of weekly payments of compensation.
A dispute concerning a worker’s work capacity requires consideration of whether the worker has “current work capacity” or “no current work capacity” for “suitable employment” within the meaning of those phrases under the 1987 Act. The meaning of these phrases has been interpreted and applied in many decisions, and, in particular, Wollongong Nursing Home Pty Ltd v Dewar[1].
[1] [2014] NSWCCPD 55.
“Current work capacity” and “no current work capacity” is defined under cl 9 of Sch 3 of the 1987 Act 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.”
“Suitable employment” is defined under s 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.”
Suitable employment
It is not disputed that the applicant has capacity for suitable employment eight hours per day, five days per week. What is disputed is whether the applicant has the physical capacity to undertake the role of electrical product assembly. That is, whether the role of electrical product assembly is “suitable employment” within the meaning of that phrase under s 32A of the 1987 Act.
Nature of the worker’s incapacity
Section 32A(a)(i) of the 1987 Act provides that a factor to be considered in determining suitable employment is the “nature of the worker’s incapacity and the details provided in medical information”. For the reasons that follow, the evidence weighs in favour of the applicant’s physical capacity to engage in the role of electrical product assembly as suitable employment.
On 19 May 2021, Dr Batuwangala certified the applicant fit for the role of electrical product assembly with lifting restrictions of 10-15 kg and “caution in wrist”. The vocational assessment evidence confirms that the role does not require lifting of more than 2 kg.
The medical evidence may record a history of the applicant reporting symptoms in his wrist and “caution in wrist”, and this is consistent with the applicant’s statement evidence. In this regard, I note the evidence identifies that the applicant reports pain in his wrist using the fry pan, turning doorknobs and lifting a kettle of up to 1 kg. It also identifies that the applicant does not undertake certain activities due to fear he will aggravate pain in his wrist. However, the medical evidence does not explain what “caution in wrist” means in relation to the applicant’s capacity. Importantly, the medical evidence does not demonstrate that because of the applicant’s alleged symptoms or caution that the applicant does not have capacity to undertake the inherent functions of the role. Nor does the medical evidence demonstrate that undertaking the inherent functions of the role would lead to an aggravation of the applicant’s symptoms in his right hand. Indeed, the medical evidence is silent in that regard.
In Dr Chan’s latest report of 18 November 2021, he records that the applicant reported ongoing dorsordial pain. He also reports that the applicant was hesitant to use his hand “for fear of aggravating his symptoms and damaging his wrist”. Dr Chan then stated:
“I do not have any surgical solution to offer him. He does not need to see me again. I have, however, suggested that he can use his hand. His scans have not demonstrated any major structural abnormality, so he will not cause any irreparable damage, even if he has some pain or discomfort.”
While, on 15 July 2021, Dr Sunner reports that “purely based” on the applicant’s report of pain in his wrist his “work capacity is that of an office or clerical duties with lifting limits of less than 2 kilograms with that hand”. Dr Sunner later said, in response to a question about return to work, that this would depend on how the applicant responds to further treatment by the hand surgeon which included future surgery.
I prefer Dr Chan’s evidence on capacity over Dr Sunner’s evidence for the following reasons. Firstly, Dr Sunner said that his opinion on capacity was “purely based” on the applicant’s self-reporting of pain. There is no objective evidence to suggest structural impairment of the hand. Secondly, Dr Sunner’s opinion on capacity was also in-part founded on an assumption that hand surgery was contemplated for the future. Hand surgery was ultimately not recommended by Dr Chan. Thirdly, Dr Chan is the applicant’s treating specialist hand surgeon. Fourthly, Dr Chan’s opinion that the applicant “can use his hand” without causing any irreparable damage was formed on the basis of having seen and examined the applicant on multiple occasions. Fifthly, Dr Sunner prepared one report, dated 15 July 2021, at the request of the respondent and having examined the applicant on one occasion. Sixthly, Dr Chan’s expert opinion is the most contemporaneous medical evidence on capacity. Lastly, Dr Chan’s opinion on capacity that the applicant can use his hand is not inconsistent with the applicant’s treating general practitioner, Dr Batuwangala.
I also prefer the expert medical opinions of Dr Chan and Dr Batuwangala on capacity over the applicant’s lay opinion on capacity. The opinions of these medical professionals are founded on their clinical knowledge, expertise and frequent examination of the applicant. I am not satisfied that the applicant’s statement evidence justifies an inference being drawn that because of his self-reported symptoms that he does not have the functional capacity to undertake the inherent requirements of the role.[2] The evidence does not give rise to a reasonable inference to that effect.[3] For these reasons, I find the opinions of Dr Chan and Dr Batuwangala on capacity more persuasive than the applicant’s opinion.
[2] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5 (Bradshaw);
[3] Bradshaw; Marshall v Prescott [2015[ NSWCA 110, [83]-[84] per Beazley P (Macfarlan and Emmett JJA agreeing).
I note the letter of referral from Dr Batuwangala to Dr Ramachandran, a pain medicine specialist, on 7 December 2021. However, I am not persuaded that because of this referral letter that the applicant has no current work capacity to undertake the role of electrical product assembly or that for reason of his capacity he lacks the functional ability to perform the inherent requirements of the role. The referral letter lacks detail and does not address the applicant’s capacity for suitable employment.
Having regard to the available evidence, I am not persuaded that the role of electrical product assembly is not suitable employment for reason of the applicant’s physical capacity.
Age, education, skills and work experience
The evidence supports that the applicant’s age, education, skills and work experience is not a barrier to his return to suitable employment.
The only barrier raised in submissions by the applicant concerned the alleged requirement of welding skills. I do not accept the applicant’s submission that the role of electrical product assembly is not suitable employment because he does not have the relevant welding qualifications.
It is accepted that the applicant does not have skills or experience in welding. However, the evidence does not demonstrate that welding is an essential requirement of the role of electrical product assembly. The uncontradicted labour market research report indicates that the three prospective employers were contacted, and all three confirmed that the applicant was qualified for the role of electrical product assembly. While the vocational evidence indicates that the “typical physical demands” of the role of electrical product assembly includes “[r]epetitive tasks are frequent especially in the use of hands and arms for holding welding, soldering, brazing, riveting or grinding equipment”, the description of the typical work tasks of each prospective employer did not mention welding. Indeed, the vocational evidence does not demonstrate that welding is a requirement of the role but suggests it may be a typical physical demand. I am not satisfied that “welding” is an essential requirement of all electrical product assembly roles, and, if it were, that the absence of relevant welding qualifications would preclude the applicant was engaging in the role. In any event, if I am wrong, this factor only forms one part of a totality of factors which regard must be had to in determining suitable employment within the meaning of s 32A of the 1987 Act.
The applicant’s age is not a barrier to engaging in suitable employment.
The vocational evidence indicates that the applicant has the relevant skills, education and experience to undertake the role of electrical product assembly. He has completed a Post Trade Electronic Certificate, Industrial Electronics Certificate and Electrical Trades Certificate. The applicant has extensive experience as an electrician and in industrial electronics, having worked in the electrical industry from 1983. I am satisfied that the applicant has the necessary transferrable skills for the role of electrical product assembly.
The evidence concerning the applicant’s age, education, skills and work experience lends favour in support of the role of electrical product assembly being suitable employment.
Any plan or document prepared as part of the return to work planning process
The respondent has actively taken steps to help facilitate the applicant’s return to work. In the Recovery Partners return to work progress reports, the role of electrical product assembly is identified as a return to work goal. In those reports it records that the applicant has undergone vocational counselling and job seeking assistance has been provided as part of his return to work goals. While the latest progress report records that the applicant is apprehensive about seeking work without further assessment and review by his treating hand surgeon, a subsequent report by Dr Chan indicates the applicant’s capacity to use his hand without “irreparable damage, even if he has some pain or discomfort”.
The return to work progress reports support the applicant’s return to work in suitable employment.
Any occupational rehabilitation services
The evidence does not indicate that the applicant needs to undergo or plans to undergo any occupational rehabilitation services or that occupational rehabilitation services are an impediment to his return to suitable employment. The applicant’s medical evidence indicates that he has ongoing capacity for some type of employment, since October 2020.
While I note the applicant has been referred to see Dr Ramachandran, a pain specialist, there is no evidence of a planned appointment or evidence that indicates that occupational rehabilitation services may be or have been recommended for the purposes of return to work.
CONCLUSION
For the above reasons, I am not satisfied to a degree of actual persuasion that the applicant has no current work capacity to return to work in the role of an electrical product assembly. I am also not satisfied, having regard to the totality of factors under s 32A of the 1987 Act, that that role is not suitable employment. As a result, it is not necessary that I determine whether the vocational options of test and tag technician and electrical service technician is suitable employment.
Accordingly, I decline to set aside the work capacity decision.
It follows that the applicant’s application for an interim payment direction is declined.
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