Riley v Valaze Group Number 4 Pty Ltd ATF Valaze 4 Trust
[2025] NSWPIC 199
•13 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Riley v Valaze Group Number 4 Pty Ltd ATF Valaze 4 Trust [2025] NSWPIC 199 |
| APPLICANT: | Eric Riley |
| RESPONDENT: | Valaze Group Number 4 Pty Ltd ATF Valaze 4 Trust |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 13 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits compensation pursuant to sections 33 and 37 and medical expenses pursuant to section 60; applicant had accepted injury to right knee; whether the applicant had no current work capacity as a result of the accepted injury since 16 August 2024; Held – applicant had no current work capacity as a result of the accepted right knee injury from 16 August 2024 ongoing; respondent pay the applicant weekly compensation pursuant to section 37(1); liberty to apply within 14 days in respect of calculation of the weekly compensation amounts; the respondent to pay the applicant’s medical expenses in respect of the injury pursuant to section 60. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant had no current work capacity as a result of the accepted right knee injury from 16 August 2024 ongoing. The Commission orders: 2. The respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the Workers Compensation Act 1987 as follows: (a) $676 per week from 16 August 2024 to 30 September 2024; (b) $688.80 per week from 1 October 2024 to 31 March 2025, and (c) $692 per week from 1 April 2025 ongoing. 3. Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts. 4. The respondent to pay the applicant’s medical expenses in respect of the injury pursuant to s 60 of the 1987 Act. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Eric Riley (the applicant) was employed by Valaze Group Number 4 Pty Ltd ATF Valaze 4 Trust (the respondent).
On 16 January 2024 the applicant sustained an injury to his right knee in the course of his employment and to which his employment was a substantial contributing factor (the injury).
The applicant initiated a claim for weekly compensation pursuant to s 33 of the Workers Compensation Act 1987 (the 1987 Act) and medical expenses pursuant to s 60 of the 1987 Act in relation to the injury.
The respondent’s insurer accepted liability for the injury and paid weekly compensation and medical expenses to the applicant in respect of the injury up to 15 August 2024.
However, by notices dated 20 September 2024 and 31 December 2024 issued pursuant to ss 78 and 287A respectively of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the insurer disputed liability for further payment of weekly compensation and medical expenses after 15 August 2024 on the basis that:
(a) it disputed that the applicant had total or partial incapacity for work resulting from the injury as required by s 33 of the 1987 Act, and
(b) it disputed that the medical or related treatment was reasonably necessary as a result of the injury as required by ss 59 and 60 of the 1987 Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The applicant initiated the present proceedings in the Personal Injury Commission (Commission) by Application to Resolve a Dispute (ARD) lodged on 4 February 2025, which claims:
(a) weekly compensation pursuant to ss 33 and 37 of the 1987 Act from 16 August 2024 ongoing, and
(b) specified future medical expenses pursuant to s 60 of the 1987 Act.
The respondent lodged a Reply to ARD (Reply) on 24 February 2025.
At a conciliation/arbitration hearing (the hearing), conducted by MS Teams on 28 April 2025, Mr Stephen Hickey, counsel, appeared for the applicant, instructed by Sky Injury Lawyers. Mr Paul Rickard, counsel, appeared for the respondent, instructed by Moray & Agnew Lawyers.
At the hearing, by consent, the applicant was granted leave to amend the ARD to seek a general order for medical expenses pursuant to s 60 of the 1987 Act.
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
At the hearing, the parties agreed that:
(a) liability for the injury is not in dispute;
(b) pre-injury average weekly earnings (PIAWE) was $830 at the date of the injury;
(c) PIAWE adjusted in accordance with the 1987 Act is as follows:
(i)$845 for the period from 16 August 2024 to 30 September 2024;
(ii)$861 for the period from 1 October 2024 to 31 March 2025, and
(iii)$865 for the period from 1 April 2025;
(d) if the Commission determines that the applicant has an entitlement to weekly compensation, then it is appropriate for the Commission to make a general order for payment of medical expenses pursuant to s 60 of the 1987 Act.
On that basis, the parties agreed that the following issues remain in dispute:
(a) the extent and quantification of the applicant’s entitlement to weekly compensation pursuant to ss 33 and 37 of the 1987 Act.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Lodge Additional Documents dated 31 March 2025, lodged by the applicant (admitted into evidence by consent), and
(d) Wages Schedule dated 31 March 2025, lodged by the applicant.
Oral evidence
No application for cross-examination was made and no oral evidence was given.
SUBMISSIONS
Counsel’s submissions were recorded and have been considered in full.
THE LAW
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
….”
Section 37 of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Assessment of the applicant’s capacity for work and entitlement to weekly benefits compensation requires consideration of whether he has a “current work capacity” or has “no current work capacity” as defined by Item 9 of Schedule 3 of the 1987 Act:
“9 Meaning of ‘’current work capacity’ and ‘no current work capacity’
(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 relevantly 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 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 or residence.”
Item 8 of Schedule 3 to the 1987 Act defines “current weekly earnings” as follows:
“‘Current weekly earnings’ of an injured worker in relation to a week, means whichever of the following is the greater amount--
(a) the worker's actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
The assessment of whether there is a current work capacity or no current work capacity must be made before proceeding to do a determination under s 36 or s 37 of the 1987 Act (Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar[1] (Dewar), at [45]-[49], [68]). In Dewar, Deputy President Roche stated at [47]-[49]:
“47. The new provisions require a determination of whether a worker has a ‘current work capacity’ or ‘no current work capacity’. A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.
48. Having accepted that Mrs Dewar has an ‘inability’ arising from her work injury, the Arbitrator’s task was to determine, having regard to the matters listed in the definition of suitable employment, if she was ‘able to return to work in suitable employment’. The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is ‘available’ or is of a type or nature that is ‘generally available in the employment market’.
49. The determination of whether a worker has a current work capacity or no current work capacity will depend on all the evidence...”
[1] [2014] NSWWCCPD 55. The reasoning in Dewar was applied in Broadspectrum Australia Pty Ltd v Skiadas [2016] NSWWCCPD 34.
Deputy President Roche considered the definition of “suitable employment” in s 32A of the 1987 Act, noted that the task of determining what is suitable employment is a “practical exercise” and stated at [63] to [68]:
“63. Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’. The Arbitrator did not properly undertake that task and did not resolve the conflict in the evidence about the nature of the light duties Mrs Dewar performed (see [4] and [5] above).
64. In determining if a worker is ‘not able to return to work’ in suitable employment there will often be issues about the suitability of the work in question. Such issues will be determined on a case-by-case basis, depending on the available evidence dealing with the issues in subs (a) of the definition. In the present case, the only evidence that addressed the issue, including the evidence from Mrs Dewar, was that she was fit for suitable employment, but with the restrictions noted by Dr Sherrell. Though the evidence of the kinds of jobs Mrs Dewar could now perform, given her present inability arising from her injury, was in a most unsatisfactory state, that did not relieve the Arbitrator from performing his statutory task.
65. The Arbitrator’s reliance on s 35 does not assist. That section identifies the factors to be used to determine the rate of weekly compensation payable. Before one considers that section, one must determine whether the worker has a current work capacity. The words ‘the worker is able to earn in suitable employment’ in s 35 do not govern the meaning of ‘current work capacity’ or ‘suitable employment’. Those terms are defined in s 32A.
66. If there is a current work capacity, that is relevant to calculating ‘E’ (the amount to be taken into account as the worker’s earnings after the injury, where the worker is not employed), which is then used in the equations in ss 36(2) and 37(2) and (3). If there is no current work capacity, one looks to s 36(1) or s 37(1), depending on whether the claim is in the first or second entitlement period.
67. Thus, the words ‘the amount the worker is able to earn in suitable employment’ in s 35 are not relevant to the preliminary question of whether a worker has a current work capacity. They are, however, relevant to determining the amount to be taken into account as the worker’s earnings after the injury where he or she is not employed. In assessing that amount, the reference to ‘the amount the worker is able to earn in suitable employment’ is a reference to the amount the worker is able to earn in suitable employment, as that term is defined in s 32A.
68. I accept, as Mr Wilson has submitted, that Mrs Dewar has an incapacity, and that ss 36 and 37 provide the methodology for calculating the amount of weekly compensation payable. However, that does not mean that the phrases ‘current work capacity’ and ‘no current work capacity’ have no purpose other than to determine which of the subsections in ss 36 and 37 applies. Before getting to ss 36 and 37, there must be a determination of whether the worker has a ‘current work capacity’ or ‘no current work capacity’ That is determined by reference to the definitions in s 32A.”
FINDINGS AND REASONS
Does the applicant have a “current work capacity” or “no current work capacity”?
In determining whether during the relevant period of time the applicant had current work capacity or no current work capacity to return to work in his pre-injury employment or suitable employment, I am required to have regard to various factors set out below.
The nature of the applicant’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under s 44B)
Applicant’s evidence
The applicant gave evidence that he has been off work since about 24 January 2024 as a result of the injury, which caused him to experience ongoing pain, swelling and restricted movement in his right knee and trouble walking on his knee and carrying out his normal work duties. The applicant’s evidence is that his symptoms required him to attend hospital to have fluid drained from his knee on 8 February 2024 and that he started using crutches from that time to walk. The applicant’s evidence is that he consulted various treating practitioners and commenced physiotherapy treatment in February 2024.
The applicant stated that he continues to experience constant knee pain and swelling, he still cannot bend or extend his right knee properly and that his knee cracks a lot. The applicant stated that he can still only walk short distances and his knee also spontaneously gives out on him. The applicant stated that he was using two crutches to walk until he recently lost one crutch and he continues to use a crutch to walk and he also wears a compression sleeve on his knee every day. The applicant stated that he has trouble sleeping because of the pain. The applicant stated that recently he also commenced to experience lower back pain due to the prolonged use of crutches and limping.
The applicant denied that it was him that was depicted in video footage which showed a person climbing and jumping.
Treating medical evidence
On 24 January 2024 a CT scan of the right knee reported: advanced bi-compartmental osteoarthrosis characterised by loss of joint space, sub-chondral sclerosis and marginal osteophytes; meniscal chondrocalcinosis (predominantly affecting the lateral meniscus); well corticated fragmentation along the medial aspect of the knee with calcification of the medial collateral ligament suggesting previous injury; and a small supra-patellar effusion.
Certificates issued by the Dubbo Base Hospital Emergency Department certified that the applicant was unable to attend normal duties from 24 January 2024 to 26 January 2024 (inclusive) and from 8 February 2024 to 15 February 2024 (inclusive).
A Discharge Summary of the Dubbo Base Hospital dated 8 February 2024 reported that the applicant had atraumatic swelling of the right knee following straining his knee at work a few weeks prior.
On 14 February 2024, the applicant’s treating general practitioner, Dr Hia Thu, recorded that the applicant reported the injury and that the applicant was using one crutch for walking.
A WorkCover Certificate of Capacity dated 14 February 2024 issued by Dr Thu, certified that the applicant had no current capacity for any work from 14 February 2024 to 28 February 2024. It noted that the applicant should continue to use one crutch to support his knee. It stated that the applicant: had no capacity for heavy lifting (noting that he was unstable with right knee pain); could stand as tolerated with one crutch; could not bend, twist nor squat; could sit as tolerated; could not push nor pull; and could not drive.
On 21 February 2024 a report of an MRI scan of the right knee reported: chronic tear of the anterior cruciate ligament (ACL); maceration of the medial and lateral menisci; Grade 2 medial collateral ligament (MCL) sprain; advanced lateral and moderate medial compartment chondral wear; preserved patellofemoral chondral surfaces; moderate insertional tendinosis; and a large knee effusion with multiple loose bodies.
On 28 February 2024, Dr Thu recorded that the applicant had ongoing pain and knee swelling. Dr Thu referred the applicant to an orthopaedic surgeon and a physiotherapist.
A WorkCover Certificate of Capacity dated 28 February 2024 issued by Dr Thu, certified that the applicant had no current work capacity for any employment from 29 February 2024 to 13 March 2024.
On 25 March 2024, Dr Thu recorded that the applicant had ongoing right knee pain and swelling and was still using crutches to walk.
A WorkCover Certificate of Capacity dated 25 March 2024 issued by Dr Thu, certified that the applicant had no current work capacity for any employment from 14 March 2024 to 22 April 2024.
By report dated 17 April 2024, Dr Matt Lyons, knee and hip surgeon reported that the applicant had a tear of the proximal MCL consistent with the injury in the context of evolving and advanced arthritis. Dr Lyons recommended that the applicant be treated non-operatively for as long as he could manage. Dr Lyons recommended that, should the applicant require surgical intervention, he undergo a total knee replacement with some increased constraint given his valgus malalignment and the disruption to the MCL. Dr Lyons stated that changing the crutch to the contralateral hand may give the applicant some improved pain control.
By report dated 18 April 2024, Piper Kleining, physiotherapist, reported that she did not believe that the applicant had the capacity to return to pre-injury duties, but did have some capacity for work, subject to the following restrictions:
(a) standing for up to half an hour with the opportunity to sit as needed;
(b) walking for up to 10 minutes with one crutch with the opportunity to rest as required;
(c) sitting up to half an hour;
(d) avoid squatting, twisting and deep knee flexion, and
(e) no capacity to lift, carry, push and pull.
On 22 April 2024, Dr Thu recorded that the applicant reported ongoing pain and that he still needed a crutch to walk and that he was unable to flex the right knee. Dr Thu noted that Dr Lyons had discussed total knee replacement with the applicant and that the physiotherapist had increased some capacity.
A WorkCover Certificate of Capacity dated 22 April 2024 issued Dr Thu, certified that the applicant had capacity for some type of work from 22 April 2024 to 13 May 2024 for three hours per day, three days per week. It noted that the applicant should continue to use one crutch to support his knee. It stated that the applicant: had no capacity for lifting and carrying; could stand up to 30 minutes with opportunity to sit as needed; had no capacity for twisting nor keep knee flexion nor twisting; could sit for up to one hour; could not pull nor push; could not drive; and could walk up to 10 minutes assisted with a crutch and the opportunity to sit as needed.
On 2 May 2024, Dr Thu commented on a Vocational Assessment Report prepared by Timothy Hunter of WorkFocus Australia which identified vocational options of Teacher’s Aide, Forklift Driver, Machine Operator and Peer Support Worker as suitable employment for the applicant. Dr Thu expressed the opinions that: in relation to the option of Teacher’s Aide, at the last review on 22 April 2024, the applicant was not able to bend his right knee and any duties involving bending and squatting would not be appropriate for the applicant at that stage; in relation to the option of Forklift Driver would be “moderately suitable” if the applicant could manage driving but also noting that the applicant was not then able to bend his knee; in relation to the option of Machine Operator, at the last review on 22 April 2024, the applicant was not able to bend his right knee and any duties involving bending or squatting would not be suitable at this stage; Peer Support Worker would be the most suitable option for the applicant because it was the least physically demanding work. Dr Thu noted that the applicant chose forklift driving or Peer Support Worker “which [is] not involving bending or squatting”. Dr Thu noted that the applicant was not able to bend his right knee as of review on 22 April 2024.
By report dated 10 May 2024, Piper Kleining, physiotherapist, reported that she did not believe that the applicant had the capacity to return to pre-injury duties, but did have some capacity for work, subject to the following restrictions:
(a) standing for up to half an hour with the opportunity to sit as needed;
(b) walking for up to 10 minutes with one crutch with the opportunity to rest as required;
(c) sitting up to half an hour;
(d) avoid squatting, twisting and deep knee flexion, and
(e) no capacity to lift, carry, push and pull.
A WorkCover Certificate of Capacity dated 13 May 2024 issued by Dr Thu, certified that the applicant had capacity for some type of work from 13 May 2024 to 10 June 2024 for four hours per day, five days per week. It stated that the applicant: had no capacity for lifting and carrying; could stand up to 30 minutes with opportunity to sit as needed; had no capacity for twisting nor keep knee flexion nor twisting; could sit for up to one hour; could not pull nor push; could not drive; and could walk up to 10 minutes assisted with a crutch and the opportunity to sit as needed.
On 13 May 2024, Dr Thu noted Dr Lyons report dated 17 April 2024 and a physiotherapist report. Dr Thu recorded that that the applicant planned to try conservative treatment for three or four months whilst looking for an alternative job which would fit into the physiotherapist’s recommendation.
An Allied Health Recovery Request for physiotherapy services dated 24 May 2024 issued by the physiotherapist recorded that the applicant had decreased range of movement of his knee and experienced pain with mobilising. It noted that the applicant required assistance with self-care and domestic matters and was unable to drive.
On 7 June 2024, Dr Thu recorded that the applicant was in the process of vocational training for a job application. Dr Thu recorded that the applicant went to his previous job because he wanted to earn some money but he could not lift the heavy boxes. Dr Thu recorded that the applicant walked in without using crutches, although he was carrying crutches with him to use if needed. Dr Thu stated that he explained to the applicant that he should not do heavy lifting and activities outside of the physiotherapist’s recommendation. Dr Thu stated that the applicant’s work hours were increased to six hours per day, five days per week with the restrictions.
A WorkCover Certificate of Capacity dated 7 June 2024 issued by Dr Thu, certified that the applicant had capacity for some type of work from 7 June 2024 to 28 June 2024 for six hours per day, five days per week. It stated that the applicant: capacity to lift up to 5kg and carry up to 2kg; could stand up to 30 minutes with opportunity to sit as needed; had no capacity for twisting nor keep knee flexion nor twisting; could sit for up to one hour; could push and pull up to 5kg; could not drive; and could walk up to 10 minutes assisted with a crutch and the opportunity to sit as needed.
On 27 June 2024, Dr Thu recorded that the applicant reported that his knee pain was the same. Dr Thu stated that the applicant “will be suitable for sedantry [sic] work type. He is not able to flex or extend his right knee fully. His lower leg was in valgus position. He is not safe to drive yet”.
A WorkCover Certificate of Capacity dated 27 June 2024 issued by Dr Thu, certified that the applicant had capacity for some type of work from 27 June 2024 to 18 July 2024 for six hours per day, five days per week. It stated that the applicant: had capacity to lift up to 5kg and to carry up to 2kg; could stand up to 30 minutes with opportunity to sit as needed; had no capacity for twisting nor keep knee flexion nor twisting; could sit for up to one hour; could push and pull up to 5kg; could not drive; and could walk up to 10 minutes assisted with a crutch and the opportunity to rest as required.
By report dated 12 July 2024, Piper Kleining, physiotherapist, reported that she did not believe that the applicant had the capacity to return to pre-injury duties, but did have some capacity for work, subject to the following restrictions:
(a) standing for up to two hours with the opportunity to sit as needed;
(b) walking for up to 20 minutes with one crutch with the opportunity to rest as required;
(c) unlimited sitting;
(d) avoid squatting, twisting and deep knee flexion, and
(e) lifting and carrying up to 5kg in one hand.
On 18 July 2024, Dr Thu recorded that the applicant had been seen by a physiotherapist and had some slight increase in capacity. Dr Thu recorded that the applicant reported that his knee pain was the same, but more painful with cold weather. Dr Thu again stated that the applicant “will be suitable for sedantry [sic] work type. He is not able to flex or extend his right knee fully. His lower leg was in valgus position. He is not safe to drive yet”.
A WorkCover Certificate of Capacity dated 18 July 2024 issued by Dr Thu, certified that the applicant had capacity for some type of work from 18 July 2024 to 16 August 2024 for six hours per day, five days per week. It stated that the applicant: had capacity to lift and carry up to 5kg in one hand; could stand up to two hours with opportunity to sit as needed; had no capacity for twisting nor keep knee flexion nor twisting; could sit unlimited; should avoid pushing and pulling; could not drive; and could walk up to 20 minutes assisted with a crutch and the opportunity to rest as required.
A Client Progress Report dated 26 July 2024 issued by WorkFocus Australia in relation to a return to work plan for the applicant stated that “Mr Riley is currently certified fit for some type of work for six hours a day, five days a week from 18 July 2024 until 16 August 2024 as per the certificate of capacity issued by Dr Thu on 18 July 2024”. It noted that Dr Thu advised that the applicant’s driving restriction would remain. The applicant reported that he continued to mobilise with one crutch and that he had not experienced any improvements in his pain over the reporting period.
When Dr Thu was on leave, the applicant attended general practitioner, Dr Nanda Pathirana.
A WorkCover Certificate of Capacity dated 16 August 2024 issued by Dr Pathirana, certified that the applicant was fit for pre-injury work from 16 August 2024.
A referral dated 16 August 2024 issued by Dr Pathirana to Dr Andrew Sefton of the Ambulatory Care Service Centre recorded that the applicant had been having significant pain and limited movements for a long time which recently aggravated after an injury.
I note that the applicant never consulted Dr Sefton and did not continue with physical rehabilitation because his claim was subsequently declined by the insurer.
On 13 September 2024, Dr Pathirana recorded that the applicant was still in pain. Dr Pathirana stated that “Now the WC is completed – aggravation is over, needs TKR through the public system”.
A Centrelink Medical Certificate dated 13 September 2024 issued by Dr Pathirana certified that the applicant had no capacity to do any work study or participate in activities of eight or more hours per week for the period from 13 September 2024 to 12 December 2024.
A medical certificate dated 19 December 2024 issued by Dr Thu certified that the applicant “is not suitable to return to work due to his right knee condition”.
A report of general practitioner Dr Thu dated 5 February 2024 stated that the applicant was not suitable for his previous duties as a handyman at this stage since he is not able to walk well, not able to stand more than ten minutes and not able to bend his right knee more than 60 degrees, and his right knee is still in valgus position. Dr Thu stated that the applicant will be suitable for sedentary type work or any work type which would not involve prolonged standing, squatting and bending/twisting of the right knee. Dr Thu stated that with his knee injury, the applicant would not be able to jump and spring in the manner depicted by video footage.
A report of general practitioner Dr Pathirana dated 7 February 2025 stated that due to ongoing pain and mobility issues the applicant needed a referral to the orthopaedic surgeon for treatment.
Independent medical evidence
Dr John Bosanquet, orthopaedic surgeon qualified by the respondent
By report dated 2 July 2024, Dr Bosanquet noted that he reviewed a report of Dr Matt Lyons treating orthopaedic surgeon dated 17 April 2024. Dr Bosanquet recorded a history that the applicant had worked as a handyman looking after lawns and general repairs for 15 years and he had been full-time. Dr Bosanquet recorded that the applicant had previously worked as a builder’s labourer, with Coles and doing asparagus cutting.
Dr Bosanquet stated that the applicant experienced right knee medial pain with some swelling and restricted movement, he was unable to knee and squat, he ascended stairs one by one, he could walk for ten to 20 minutes and used a crutch with his left hand.
Dr Bosanquet reported that, on examination, the applicant could stand on his heels and toes, he walked with a significant limp and had a limited squat. Dr Bosanquet reported that the applicant’s right knee was in valgus, had a range of movement from 0 degrees to 110 degrees, the applicant was very tender over the medial and lateral joint lines, with retropatellar tenderness with minimal crepitus. There was some anterior-posterior (AP) laxity (an ACL tear) and mild MCL laxity.
Dr Bosanquet diagnosed pre-existing arthritis right knee in the context of a medical collateral ligament disruption. Dr Bosanquet expressed the opinion that the injury had aggravated pre-existing degenerative changes in the right knee. Dr Bosanquet expressed the opinion that the applicant will eventually require a total knee replacement but because of the applicant’s relatively young age, Dr Bosanquet recommended that the applicant manage the condition conservatively by an ongoing exercise program, use of a knee guard and anti-inflammatory medication.
By report dated 30 July 2024, Dr Bosanquet expressed the opinion that a video which purportedly showed the applicant, subsequent to the injury, walking without a limp, jumping onto a bin and over a fence demonstrated that the injury had resolved.
Dr Endrey-Walder, general and trauma surgeon, independent medical expert qualified by the applicant
By report dated 11 December 2024, Dr Endrey-Walder, recorded a detailed history. Dr Endrey-Walder reported that the applicant had worked as a maintenance worker since 2009, on a casual but full-time basis until COVID-19 and then on the basis of 20 hours per week, however the applicant was unable to work since he sustained the injury due to severe ongoing right knee pain.
Dr Endrey-Walder stated that the applicant reported constant knee pain, which was worsened by going up and down stairs and squatting, even sitting on a toilet. The applicant reported that his knee had intermittent swelling, his knee would give way at least once a week and he wore a knee guard when not in bed. The applicant reported that because of the injury he was unable to drive, mow the lawn, vacuum, get down on the floor or kneel.
Dr Endrey-Walder reported that, on examination, the applicant walked with a moderate limp on the right leg, was unable to weight bear on the right forefoot or stand on the right heel and he had about three quarters of the normal range of squatting. Dr Endrey-Walder reported that the right thigh was 2cm smaller in circumference than the left, the calves of equal calibre. Dr Endrey-Walder noted marked valgus alignment at the right knee, five degrees flexion contracture, achieving 100 degrees active flexion, moderate ACL insufficiency.
Dr Endrey-Walder diagnosed significant aggravation and exacerbation of pain upon some established osteoarthritic changes in his right knee, and stated that the injury was a substantial contributing factor to such changes.
In relation to capacity, Dr Endrey-Walder stated:
“Mr. Riley is certainly suffering from significant incapacity for employment in any situation which requires him to be on his feet for more than a few minutes at a time, he has no capacity to repeatedly negotiate stairs, climb a ladder, negotiate uneven ground, perform chores that require squatting or kneeling. I consider his incapacity partial, in the sense that, he would likely be able to cope with some sort of sedentary work situation over, say, four hours three days a week.”
Dr Endrey-Walder stated that “Given that there is no plan for a TKR procedure within the next 12 months, I would have to consider your client’s condition as having reached Maximum Medical Improvement.” On the basis of the Guides to the Evaluation of Permanent Impairment by the American Medical Association (5th Edition), Dr Endrey-Walder assessed total 29% whole person impairment in respect of the applicant’s right knee.
Consideration
Both counsel drew my attention to various parts of the medical evidence and apparent inconsistencies in that evidence. Counsel for the respondent submitted that I should prefer the evidence of Dr Thu and Dr Bosanquet and find that, during the relevant period, the applicant effectively had capacity to work full-time subject to various restrictions. Counsel for the applicant submitted that I should find that, during the relevant period, the applicant had no work capacity at all, or in the alternative, I should prefer the evidence of Dr Endrey-Walder and find that the applicant had capacity to work twelve hours of work per week subject to various restrictions.
It is not in dispute, and I accept, that the applicant sustained an aggravation of a pre-existing established osteoarthritic changes in his right knee.
The applicant’s evidence in relation to his ongoing symptoms and restrictions is not in dispute and is largely consistent with the body of treating medical evidence since the applicant sustained the injury and also the independent medical evidence.
On that basis, I accept that during the relevant period:
(a) the applicant experienced ongoing constant right knee pain, which was exacerbated by various weight bearing activities and movement;
(b) the applicant had trouble sleeping because of the pain;
(c) the applicant experienced intermittent swelling of the right knee;
(d) the applicant could not bend or extend his right knee properly and was unable to bear weight on his right knee;
(e) the applicant experienced ongoing difficulty walking, required the use of a crutch to walk and could not walk for prolonged periods, and
(f) the applicant’s right knee spontaneously gave out on him.
The relevant period for the purposes of the applicant’s claim for compensation is the period from 16 August 2024 ongoing.
The medical evidence is largely consistent that the applicant did experience various physical restrictions as a consequence of the injury.
However, I accept that the medical evidence in relation to the applicant’s work capacity from time to time is somewhat conflicting and not straightforward and I have some difficulty resolving the apparent conflict in the evidence.
In that regard I note that immediately prior to the relevant period, Dr Thu issued a WorkCover Certificate of Capacity dated 18 July 2024 which certified that the applicant had capacity for some type of work from 18 July 2024 to 16 August 2024 for six hours per day, five days per week. It stated that the applicant: had capacity to lift and carry up to 5kg in one hand; could stand up to two hours with opportunity to sit as needed; had no capacity for twisting nor keep knee flexion nor twisting; could sit unlimited; should avoid pushing and pulling; could not drive; and could walk up to 20 minutes assisted with a crutch and the opportunity to rest as required.
However, the WorkCover Certificate of Capacity dated 16 August 2024 issued by Dr Pathirana, certified that the applicant was fit for pre-injury work from 16 August 2024.
There is no evidence which provides a real explanation for the development in the applicant’s capacity from the Certificate of Capacity dated 18 July 2024 to the Certificate of Capacity dated 16 August 2024.
Indeed, I note that the referral dated 16 August 2024 issued by Dr Pathirana to Dr Andrew Sefton of the Ambulatory Care Service Centre noted that the applicant was experiencing ongoing significant pain and limited movement. Further, on 13 September 2024, Dr Pathirana recorded that the applicant was still in pain and required a total knee replacement.
There is also no evidence which provides a real explanation for the Dr Pathirana subsequently issuing a Centrelink Medical Certificate dated 13 September 2024 which certified that the applicant had no capacity to do any work study or participate in activities of eight or more hours per week for the period from 13 September 2024 to 12 December 2024.
A medical certificate dated 19 December 2024 issued by Dr Thu certified that the applicant “is not suitable to return to work due to his right knee condition”.
I note that Dr Thu’s report dated 5 February 2025 stated that the applicant was not suitable for his previous duties as a handyman at this stage since he is not able to walk well, not able to stand more than 10 minutes and not able to bend his right knee more than 60 degrees, and his right knee is still in valgus position. Dr Thu stated that the applicant will be suitable for sedentary type work or any work type which would not involve prolonged standing, squatting and bending/twisting of the right knee. Dr Thu stated that with his knee injury, the applicant would not be able to jump and spring in the manner depicted by video footage.
That is somewhat consistent with the report of general practitioner Dr Pathirana dated 7 February 2025 stated that due to ongoing pain and mobility issues the applicant needed a referral to the orthopaedic surgeon for treatment.
The treating medical evidence as to physical restrictions experienced by the applicant is largely supported by the independent medical evidence.
Dr Thu was the applicant’s treating general practitioner for most of the time since the applicant sustained the injury and I consider that he would have been in a particularly good position to accurately assess the applicant’s physical restrictions from time to time consequent upon the injury. For this reason, I give particular weight to Dr Thu’s report dated 5 February 2025 which I consider provides a considered opinion of the applicant’s capacity based on a longstanding and thorough knowledge of the applicant’s physical injury, symptoms and capacity. On that basis, I do not accept the WorkCover Certificate of Capacity dated 16 August 2024 issued by Dr Pathirana, which certified that the applicant was fit for pre-injury work from 16 August 2024.
I note that Dr Thu did not issue any WorkCover Certificate of Capacity during the relevant period from 16 August 2024.
Having regard to the conflict in the evidence, I consider that the best evidence relation to capacity during the period from 16 August 2024 is the evidence of Dr Endrey-Walder in his report dated 11 December 2024 because Dr Endrey-Walder considered a detailed medical history and examined the applicant. (I note that Dr Bosanquet did not deal with the issue of the applicant’s capacity to any significant degree.) On that basis, I accept Dr Endrey-Walder’s conclusion that:
“Mr. Riley is certainly suffering from significant incapacity for employment in any situation which requires him to be on his feet for more than a few minutes at a time, he has no capacity to repeatedly negotiate stairs, climb a ladder, negotiate uneven ground, perform chores that require squatting or kneeling. I consider his incapacity partial, in the sense that, he would likely be able to cope with some sort of sedentary work situation over, say, four hours three days a week.”
Considering the medical evidence as a whole, I accept that during the relevant period from 16 August 2024, the applicant did continue to experience significant ongoing physical restrictions as a result of the injury. In particular, I accept that:
(a) the applicant was not able to walk well;
(b) the applicant was not able to stand more than 10 minutes;
(c) the applicant was not able to bend his right knee more than 60 degrees, and
(d) the applicant’s right knee was still in valgus position.
There is no dispute, and I accept, that the applicant’s pre-injury duties were of a particularly physical nature and required active use of the applicant’s right knee in the form of walking, standing, bending, twisting and weight-bearing activities.
On the basis of all of the above findings and having regard to the evidence as a whole, I accept that, during the relevant period from 16 August 2024 ongoing:
(a) the applicant was not suitable for his pre-injury duties because those duties were of a particularly physical nature which the applicant had no capacity to perform, and
(b) the applicant was suitable to work, four hours a day, three days a week, in sedentary type work or any work type, provided it did not require the applicant to:
(i)be on his feet for more than a few minutes at a time;
(ii)repeatedly negotiate stairs;
(iii)climb a ladder;
(iv)negotiate uneven ground;
(v)squat, nor
(vi)kneel.
The applicant’s age, education, skills and work experience
The applicant’s evidence in relation to his age, education, skills and work experience is not in dispute.
On that basis I accept that:
(a) the applicant is currently aged 57 years;
(b) the applicant finished high school after completing year 10;
(c) the applicant then commenced a Tertiary preparation certificate through TAFE in Dubbo which he was unable to complete because the course was discontinued;
(d) after leaving High School, the applicant cut asparagus for about one year;
(e) the applicant then worked for Coles stacking shelves for about three months;
(f) the applicant then worked at an abattoir cutting meat for about 14 months;
(g) the applicant then worked as a security guard for about three years;
(h) the applicant then worked as a teacher’s aide with disabled children, showing the children how to cut wool and sew on and off for about 12 years;
(i) the applicant them worked as a teacher’s aide for a different school for about four years;
(j) the applicant then worked driving a forklift for about six months;
(k) the applicant then did two years of a four year carpentry apprenticeship which he was unable to continue because the employer ceased to operate, and
(l) in about 2009, the applicant worked as a maintenance worker at a Motor Inn (which was ultimately taken over by the respondent) which involved the applicant taking care of the rubbish bins, performing general handyman and maintenance tasks and mowing lawns. At the time of the injury, the applicant worked about five hours per day, five days per week.
Any occupational rehabilitation services that are being, or have been, provided to or for the applicant
On 7 June 2024, Dr Thu recorded that the applicant was in the process of vocational training for a job application however there is no evidence which details the nature of occupational rehabilitation services that were provided to the applicant.
Any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act
A Vocational Assessment Report prepared by Timothy Hunter of WorkFocus Australia identified vocational options of Teacher’s Aide, Forklift Driver, Machine Operator and Peer Support Worker as suitable employment for the applicant. I note that the Vocational Assessment Report which was commented on by Dr Thu sets out the various requirements and physical duties of each of those vocations.
The respondent’s counsel submitted that the Vocational Assessment Report identified vocational options which were suitable employment for the purposes of determining the applicant’s entitlement to weekly compensation.
The applicant’s counsel submitted that the various vocational options identified in the Vocational Assessment Report were not suitable employment because they were not suitable to the applicant having regard to his age, education, skills, work experience and physical restrictions.
In relation to the vocation of Teacher’s Aide, I note that the Vocational Assessment Report states that the physical demands of the role include: frequent standing and walking around the class; frequent sitting, kneeling, squatting and crouching at low desks; lifting and carrying of school equipment; and some driving. I note that on 2 May 2024, Dr Thu expressed the opinion that the applicant would not be able to perform the duties of a Teacher’s Aide because he was not able to bend his right knee, nor perform any duties involving bending and squatting. I consider that the opinion of Dr Thu in that regard is consistent with the evidence and my findings above. On that basis, I find that Teacher’s Aide is not suitable employment for the applicant during the relevant period.
In relation to the vocation of Forklift Driver, I note that the Vocational Assessment Report states that the physical demands of the role include: driving; climbing up steps to enter and to exit the vehicle cab; frequent, repetitive leg and foot movements and pushing and pulling. I note that on 2 May 2024, Dr Thu expressed the opinion that the vocation would be “moderately suitable” if the applicant could manage driving but also noting that the applicant was not then able to bend his knee. The evidence has consistently demonstrated that the applicant was not able to drive. There is no evidence that the applicant has developed the capacity to drive. On that basis, I find that Forklift Driver is not suitable employment for the applicant during the relevant period.
In relation to the vocation of Machine Operator, I note that the Vocational Assessment Report states that the physical demands of the role include: medium to heavy work demand levels; frequent standing when operating machinery; frequent walking about the factory to pick up materials and supplies; squatting, kneeling and crouching when carrying out inspections of products and machinery; frequent lifting and carrying items, materials and equipment; and some driving. I note that on 2 May 2024, Dr Thu expressed the opinion that the vocation would not be suitable for the applicant because he could not perform any duties involving bending or squatting. I consider that the opinion of Dr Thu in that regard is consistent with the evidence and my findings above. On that basis, I find that Machine Operator is not suitable employment for the applicant during the relevant period.
In relation to the vocation of Peer Support Worker, I note that the Vocational Assessment Report states that the physical demands of the role include: occasional to frequent driving. I note that on 2 May 2024, Dr Thu expressed the opinion that the vocation would be the most suitable option for the applicant because it was the least physically demanding work. The evidence has consistently demonstrated that the applicant was not able to drive. There is no evidence that the applicant has developed the capacity to drive. On that basis, I find that Peer Support Work is not suitable employment for the applicant during the relevant period.
For all of the reasons that I have outlined above, I find that during the relevant period from 16 August 2024 ongoing, the applicant has no current work capacity because the applicant has an inability arising from the injury such that the applicant:
(a) is not able to return to the worker’s pre-injury employment and, further,
(b) the applicant is not able to return to work in suitable employment.
What is the extent and quantification of any entitlement to weekly compensation, pursuant to ss 33 and 37 of the 1987 Act?
The parties agreed that the following PIAWE IS applicable for the purposes of calculating any entitlement to weekly compensation.
(a) $845 for the period from 16 August 2024 to 30 September 2024;
(b) $861 for the period from 1 October 2024 to 31 March 2025, and
(c) $865 for the period from 1 April 2025;
On that basis, I calculate the applicant’s entitlement to weekly compensation in respect of the period from 16 August 2024 ongoing, pursuant to ss 33 and 37 of the 1987 Act as follows:
Date from
Date to
Weeks
14 ongoingPIAWE
Rate claimed
Weekly Amount
Actual Earnings
Entitlement
16/08/24
30/09/24
$845
80%
$676.00
Nil
$676
01/10/24
31/03/25
$861
80%
$688.80
Nil
$688.80
01/04/25
Ongoing
$865
80%
$692.00
Nil
$692
In the circumstances, I consider that it is appropriate to direct that the parties have 14 days liberty to apply with respect to the calculation of the amount of the weekly compensation payable to the applicant.
SUMMARY
I make the following findings:
(a) the applicant had no current work capacity as a result of the accepted right knee injury from 16 August 2024 ongoing.
I make the following orders:
(a) the respondent to pay the applicant weekly compensation pursuant to ss 33 and 37 of the 1987 Act as follows:
(i)$676 per week from 16 August 2024 to 30 September 2024;
(ii)$688.80 per week from 1 October 2024 to 31 March 2025, and
(iii)$692 per week from 1 April 2025 ongoing.
(b) Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.
(c) The respondent to pay the applicant’s medical expenses in respect of the injury pursuant to s 60 of the 1987 Act.
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