Robertson v Bankstown District Sports Club Ltd
[2022] NSWPIC 351
•1 July 2022
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Robertson v Bankstown District Sports Club Ltd [2022] NSWPIC 351 |
| APPLICANT: | Matthew Robertson |
| RESPONDENT: | Bankstown District Sports Club Ltd |
| PRESIDENT’S DELEGATE: | Parnel McAdam |
| DATE OF DECISION: | 1 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; worker suffered a back injury that led to a microdiscectomy and fusion; currently working in suitable duties with the respondent; whether worker could work as a call centre operator; consideration of weight to be given to applicant’s vocational report; Held – applicant had not met his onus; interim payment direction declined. |
| ORDERS MADE: | 1. I decline to make an interim payment direction. |
STATEMENT OF REASONS
BACKGROUND
Mr Robertson (the applicant) worked in a very busy role with Bankstown Sports Club (the respondent) as a cellar team leader. This role involved looking after beverage stock at the club’s various bars and restaurants, including kegs of beer and other drinks. It was consistently busy and involved heavy work.
On 17 January 2019, he started to feel his back tighten up. By the end of the shift, his back locked up and he was in agony getting home. Unfortunately for Mr Robertson, a serious injury had occurred, involving a large piece of bulging disc. He initially underwent a microdiscectomy, which led to a spinal fusion after a period. Both surgeries, in particular the spinal fusion, are significant and have left him with ongoing physical incapacities. He will not return to heavy work in the future.
To the credit of Mr Robertson and his employer, he is now back at work with the respondent, completing administration in the cellar admin team. He works from home about half the time.
On 2 March 2022, the respondent issued a section 78 notice, reducing Mr Robertson’s entitlement to nil on the basis of a work capacity decision. That decision determined that he had capacity to work as a call or contact centre worker, and a general clerk. The decision took effect on 11 June 2022 and is currently under the effect of a stay due to the operation of s 298B of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Issues in dispute
The issue in dispute in this matter is whether Mr Robertson has capacity to work in suitable employment as identified by the respondent. Mr Robertson claims an entitlement to weekly compensation on an ongoing basis pursuant to s 38 of the Workers Compensation Act 1987 (the 1987 Act).
The legislation
As this dispute concerns suitable employment, I must consider the definition 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.”
Section 38 of the 1987 Act provides:
“(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a)the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b)the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c)the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4) An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a)during the last 52 weeks of the second entitlement period, and
(b)thereafter at least once every 2 years.
Note—
An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(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 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.
(8) A worker’s entitlement to compensation under this section may be reassessed at any time.”
Mr Robertson has an ongoing entitlement to weekly compensation, despite being in the “section 38 period”, by virtue of s 38(3)(b) of the 1987 Act.
Section 33 of the 1987 Act provides:
“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.”
I am determining this dispute exercising powers of the President delegated to me. Section 297(1) of the 1998 Act provides:
“When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction.”
The evidence
I have reviewed all of the evidenced lodged by the parties attached to the Application and Reply. The key documents relevant to the determination of the issues in dispute are discussed below.
The dispute notice
Club Employers Mutual, the insurer of the respondent, issued a section 78 notice on 2 March 2022. The decision determined that Mr Robertson had no entitlement to ongoing weekly benefits. The decision relied on the roles of call or contact centre worker and clerical and administrative workers/general clerk as being suitable employment.
The section 78 notice summarises the findings of the vocational assessment and labour market analysis dated 1 February 2022, which I will discuss below.
The vocational assessment report
This report is dated 1 February 2022 and is prepared by Ms Yasemin Atli, of Strategic Industry Solutions. The vocational assessment goal was said to be “to assist Mr Robertson to identify alternate vocational options within their physical capacity when considering work experience, age, employment history and transferable skills”. The report was then relied upon to make a decision concerning suitable employment. It does not appear to have been prepared to “assist” Mr Robertson.
In terms of physical factors, Mr Robertson had a reported lifting restriction of up to 12kg with care, pushing or pulling up to 12kg with care, and bending, squatting, climbing and twisting “as tolerated”. He reported no issues with other physical factors. At the time of the report he had capacity for some type of work for 6 hours a day, 5 days a week, with a 12kg lifting/carrying/pushing/pulling limitation.
Relevantly for the submissions during the conference, Mr Robertson was reported to have excellent written and spoken English language skills. Mr Robertson’s previous employment history was listed, working largely in clubs and bars. His recent employment history involved being a cellarman, and prior to that a bar manager, bar attendant, and a data entry and admin job some years ago. A list of transferrable skills was provided, with all said to be physically and psychologically appropriate.
The specific requirements of a call or contact centre worker were considered. The role is said to be sedentary and involves constant sitting, with occasional walking to communicate with staff. Two relevant awards were noted, although, based on submissions received during the teleconference, these appear to be out of date.
As is usual practice, three market contacts were made regarding the roles identified. In each case, the role was said to be suitable given Mr Robertson’s transferrable skills and functional capacity.
Report of A/Prof Gordon Davies
A/Prof Davies is a psychiatrist and provided a report dated 9 March 2022. He takes a consistent history of injury and the surgery following Mr Robertson’s back problems. Mr Robertson’s present problems largely related to his physical injury and his sleep issues as a result of pain down his leg.
He was noted to have experienced “some anxiety and distress but has tried to maintain a positive outlook”. A/Prof Davies opines that “although Mr Robertson’s injury has clearly had a significant psychological impact I would regard this as being within the bounds of a normal reaction and not representing a psychological illness”. In terms of his psychological capacity, he states “there is no present psychological incapacity”.
Report of Dr Eddie Price
Dr Price provides an injury management consultation report dated 30 September 2021. Although this report is now slightly out of date for the consideration of the worker’s capacity almost nine months later, it does record that at that time, Mr Robertson had been upgraded to carrying out his duties of a cellar admin with the respondent for 6 hours per day, which due to COVID was from home. He was expected to return to full hours of cellar admin duties by 31 October 2021.
Certificates of capacity
Dr Fountas is the applicant’s treating general practitioner. A number of certificates are attached to the application, the most recent covering the period from 2 May 2022 to 16 May 2022. That certificate is for “some type of work” for 7 hours a day, 5 days per week. The same 12kg limitations are provided. In terms of “other” restrictions, it is noted “administration type alternate as pert RTW plan”. Comments included “struggling emotionally/physically – to alternate with home based duties” and “needs psychologist review and physio”.
Similar restrictions and comments were provided in the earlier certificates attached to the application, although noted capacity for 6 hours per day, 5 days per week.
The applicant’s statement
Mr Robertson provides a statement dated 3 June 2022. I note that it is headed as a “further statement” although no earlier statement is provided. The statement sets out his education, employment history, background to the onset of his injury, and the effects of the injury including the treatment that occurred. Mr Robertson explains his current work as in cellar admin, which involves work from home about half the time. He discusses how he copes with that work.
He states that he does not feel capable of doing the work of a call centre operator or a general clerk as it would involve continual sitting for long periods. He would find it difficult to perform any role that would require sitting for more than 30 minutes at a time.
Present symptoms are recorded, including difficult with pressure, difficulty concentration, and a loss of pleasure of activities.
Report of Dr James Athanasou
Dr Athanasou provides a vocational assessment of Mr Robertson dated 19 April 2022. I note that Dr Athanasou is a doctor of letters rather than a medical practitioner. His qualifications are in psychology. He certifies at the outset that he has read the Expert Witness Code of Conduct and the Commission’s Procedural Direction PIC4 – Expert Witness Evidence.
Dr Athanasou examined Mr Robertson via video link. Some brief testing was performed during the assessment. Mr Robertson’s employment history, skills and qualifications were discussed, as well as the occurrence of the injury and his present symptoms.
Mr Robertson’s “vocational potential” was discussed. This vocational potential focuses more on lost potential earnings and would appear to go more to an issue regarding damages rather than relevant to current capacity.
The suitable employment options proposed were discussed. Dr Athanasou opines that Mr Robertson would “experience difficulty in answering incoming calls on a prolonged basis. He would require breaks. There would be a sitting limitation.” Similar non-specific restrictions were noted with regard to general clerk. He opines:
“Moreover, his employment prospects would be limited by (a) a relative lack of transferable skills from cellar work for more than 17 years in a registered club to the field of office work, (b) limitations in the local labour market and (c) any negative employer perceptions of his ability. He could undertake some duties on a short-term basis but probably it is drawing a long bow to say that he could perform these occupations on a permanent basis for the remainder of his working life to age 67.”
The conclusion is that “he is not capable of working effectively throughout his remaining career as a full-time call or contact centre operator or as a full-time general clerk”.
Report of Dr J Brian Stephenson
Dr Stephenson provides a report dated 25 March 2022. He assesses Mr Robertson as suffering from 26% whole person impairment. This is a significant figure (largely due to the fusion surgery performed), although I note that there is no indication that this figure is accepted by the respondent, and an assessment of permanent impairment, even a significant assessment, is not indicative of capacity.
Specifically, in terms of fitness for work Dr Stephenson opines:
“Your client is fit for administrative duties, and fortunately he has slotted into such a career with the same employer. I have explained the very busy club-related activity required in administration, effectively it has a large warehouse and deliveries are required on a truck. He is not fit for such work but he is fit for office-based duties which he is doing, performing an IT and administrative role, supervising the business functions.”
Report of Dr David Freiberg
Dr Freiberg is a consultant physician in respiratory and sleep medicine. He provides a brief report dated 29 April 2022which discusses Mr Robertson’s ongoing issues with sleep. He records truncated sleep with disordered breathing, and hypersomnolence. He does not comment on capacity other than noting that he wakes unrefreshed.
Submissions
Submissions were provided at the teleconference and recorded. The below is a summary of the parties’ submissions.
Applicant’s submissions
The applicant seeks that the work capacity decision be set aside and payments continue to be made in accordance with s 38 of the 1987 Act.
The applicant went through relevant material on which he relies. The applicant referred to the section 78 notice, which notes a capacity for 30 hours per week, which is said to be the essence of the decision.
The applicant submits that not all employment is suitable employment. It is acknowledged that s 32A is different to the provisions that existed before 2012, but the critical question to be determined is whether the worker is, in reality, suited to the employment identified.
The applicant made observations about the vocational assessment report. The applicant referred to the payment rates referenced in the vocational assessment on two bases. Firstly, the awards referenced are not in existence in this time, and there is a 2020 version of both. The rate of pay quoted per the award is incorrect. Secondly, there is an assumption in the assessment that a person who has not worked in a similar role before would walk into pay at the level 5 rate, which is not necessarily the case.
The applicant referred to the role of call centre operator and discussed the duties and qualifications of the role. It was noted that there is opportunity to sit and stand but it was an in-office role. Effective verbal communication skills were required. The applicant submits that this role is not within Mr Robertson’s functional capacity.
The applicant referred to the certificate of capacity which notes static postures of up to 30 minutes, that the applicant is struggling emotionally and physically, and that tasks should be alternated with home-based duties.
The applicant took me to relevant parts of Mr Robertson’s statement. Particular note was made of his current and ongoing issues. Mr Robertson’s current employer was said to be very flexible and any future employer would not necessarily be that way. The applicant submits that his issues regarding his slurred speech goes to suitability of employment, as one of the requirements was excellent communication skills.
The applicant referred to Dr Athanasou’s report, which deals with both roles said to be suitable. The applicant submits that whilst he may have some capacity, based on the report of Dr Athanasou he would not be able to exercise it meaningfully or realistically.
The applicant also referred to the report of Dr Freiberg who notes that he has broken sleep.
The applicant’s current earnings are approximately $800 per week, which are considerably less than his pre-injury average weekly earnings (PIAWE). The applicant submits that he does not have capacity as assessed by the insurer and that payments would continue in accordance with s 38.
Respondent’s submissions
The respondent commenced by noting that there is no dispute that the applicant is unable to return to his pre-injury position. The question for consideration is whether he is capable of returning to suitable employment.
The worker is currently performing suitable duties as a food and beverage admin, which he can perform remotely and on site.
The respondent noted that the worker is currently certified to perform 30 hours per week, and has no restriction on his sitting and standing ability. The respondent referred to the certificate of capacity, which notes no connection with sitting or standing. The certificate is said to be important because the positions determined suitable were in accordance with the nominated treating doctor. The respondent submits that the absence of any opinion from the nominated treating doctor as to whether or not the positions are functionally suitable is important, as he is the person who constantly treats the worker.
The respondent referred to the submission made noting the incorrect awards referenced. The respondent submits that the salary referred to a real world calculation based on feedback from the employer, and I would have regard and give weight to that feedback, rather than anything under the award.
The respondent referred to some subjective feelings of depression, but noted that per the report of Dr Davies, Mr Robertson’s reaction to his injury was within the bounds of a normal reaction and there is no present psychological incapacity.
With regard to the suggestion of gastrointestinal issues, there is no opinion that those issues might have an effect on Mr Robertson’s capacity to work in suitable employment.
The respondent addressed the applicant’s submission that a new employer would need to be quite accommodating. The respondent submits that I would not be able to have regard to whether the work is the type and nature available on the market, or the worker’s place of residence.
The respondent submits that Dr Stephenson opined that Mr Robertson isn’t fit for his pre-injury role but is fit for office work, which he is currently doing.
The respondent raised issue with the report of Dr Athanasou, on the basis there is no evidence as to why, in his opinion, the roles are not functionally suitable. The respondent referred to Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, submitting that there is no basis to understand why he has provided an opinion regarding sitting, given the certificate of capacity has not restriction, and that having regard to the lack of reasoning in the report, little weight should be given to his report and submissions on point should be considered mere ipse dixit.
In summary, the respondent submits that there is a certificate of capacity with a lifting and pulling/pushing restriction only. There is no evidence as to why he couldn’t participate as a call centre operator, there is no evidence from an orthopaedic surgeon that he can’t perform the roles identified, Dr Freiberg doesn’t say anything about capacity at all, and I should put little weight on Dr Athanasou’s opinion, given his lack of reasoning.
Applicant in response
In respect of Dr Athanasou’s report, it was submitted that the rules of evidence do not apply and in any event his reasoning is sound and the information that he relied upon is set out in his report. His conclusion is clear and based on the evidence and did not require further elucidation.
The applicant submits that in any event, some of the same criticisms could be made of the vocational assessment, but be that as it may I am not operating in a jurisdiction where the rules of evidence apply.
The applicant referred to the evidence in the certificates of capacity that static postures of up to 30 minutes are tolerated, and this would include standing and sitting. This is consistent with what Mr Robertson says in his statement.
Mr Robertson is currently struggling with alternating home-based duties, he is genuine and his evidence is clear can be relied on. One should acknowledge the significance of the injury and the sequelae thereof.
The applicant concluded by agreeing that the availability of employment is not relevant, but suitability is the central point that I must consider. In each of the jobs identified there was an expectation of an office-based environment, and that type of employment is not something to which Mr Robertson is currently suited.
Discussion
The definition of suitable employment in s 32A of the 1987 Act contains a list of relevant matters for consideration. The central dispute in this case really concerns Mr Robertson’s capacity from a medical point of view. There is some minor dispute about capacity from a skills point of view.
The nature of the incapacity
As the respondent’s concession at the start of their submissions acknowledges, there is no way that Mr Robertson will ever return to his pre-injury employment. It was clearly extremely heavy and demanding work. Unfortunately, it has resulted in severe health impacts for Mr Robertson, including invasive surgeries and ongoing effects.
To the credit of both the applicant and the respondent, Mr Robertson is back at work in alternative duties, involved in the administration side of beverage supply at the club. Mr Robertson balances this work both in the office and from home.
In considering this aspect of the definition of suitable employment in s 32A, I am required to consider the “details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker”. The most recent certificate of capacity before me provides that Mr Robertson is capable of working for 7 hours per day, 5 days per week. This is slightly greater capacity than the 6 hours per day, 5 days per week as relied on in the section 78 notice and as regularly assessed by Dr Fountas for a period of time. Specific restrictions relate to lifting/carrying and pushing/pulling. In the comments, additional issues (not necessarily restrictions) are noted, being “static postures up to 30mins” and “struggling emotionally/physically – to alternate with home based duties”.
As indicated by the terms of the legislation, my consideration should go beyond the terms of the certificate of capacity. The parties’ submissions took me to various aspects of the medical and lay evidence in this case, and I have discussed the relevant evidence above.
The vocational assessment report considers Mr Robertson’s medical restrictions and based his functional capacity on those restrictions. There is a transferrable skills analysis that deems all the skills to be physically and psychologically appropriate. The physical requirements of a call centre operator are said to be sedentary, consistent with the physical restrictions placed on Mr Robertson.
A question remains about the requirement to constantly sit at a workstation. The applicant made submissions about this point, being inconsistent with Mr Robertson’s functional capacity. The certificate of capacity is noted to provide for “static postures of up to 30mins”, although this is provided in commentary rather than a specific restriction. It is difficult to know exactly what that means in terms of functional capacity. I note that each of the employer contacts identified in one way or another that there would be the opportunity to change posture, with two of the three identifying the capacity to sit/stand as required.
The applicant relies on the report of Dr Athanasou. Both parties provided submissions addressing this report. The respondent urged that I would not give it any or great weight, describing it is a bare ipse dixit. The applicant disputed that and suggested that it was well reasoned and clear.
I would not go as far as the respondent, but do have reservations about the quality of the report and the weight that I can afford to it. Dr Athanasou indicates that he is aware of the PIC Procedural Direction and the general rules regarding expert reports. His report, however, is not particularly clear. As I have suggested in my discussion above, it was perhaps prepared more for a damages claim analysing past and future economic loss, rather than directed at Mr Robertson’s current work capacity, the issue in dispute. For example, the report talks about the “vocational potential of Mr Robertson before the injury” and what he thought he would have been earning.
I acknowledge that Dr Athanasou specifically discusses the section 78 notice. He states that “he would experience difficulty in answering incoming calls on a prolonged basis. He would require breaks. There would be a sitting limitation”. The issue with this conclusion is that there is no explanation as to why he would experience difficulty in answering incoming calls. I cannot see how there is any aspect of answering calls inconsistent with Mr Robertson’s physical capacity. The contacted employers indicated that there was capacity for changing postures including sitting or standing. The only issue not fully explored in the other medical evidence is the requirement to take breaks, although Dr Athanasou has not explained how often that would occur and on what basis.
In contrast Dr J Brian Stephenson has opined that Mr Robertson is fit for office-based duties. I find his report comprehensive and persuasive. He has considered the physical effects of Mr Robertson’s injuries, as well as having assessed his whole person impairment, and has provided a reasoned opinion on capacity.
Other aspects of Mr Robertson’s medical capacity were touched on. I accept the report of A/Prof Davies that he does not have a psychological condition affecting his capacity for work. The sleep study report of Dr Freiberg provides no commentary on Mr Robertson’s capacity and cannot be said to be relevant to my consideration of suitable employment in any great degree. Likewise, the reported gastrointestinal issues do not appear to affect Mr Robertson’s capacity.
Mr Robertson’s statement outlines his difficulties with sitting at a computer for extended periods of time, as well as the flexibility of his employer and his current work schedule, which allows him to work some of the time in the office and some time from home. I accept that these are real and valid concerns of Mr Robertson. I am, however, required to consider the medical evidence provided as a whole. The fact is that in this case, the medical evidence does not support a high degree of incapacity. This is a credit to Mr Robertson, who has returned to work after a serious injury and invasive surgery.
The worker’s age, education, skills and work experience
Not much was said about this aspect and it appears to me to be that Mr Robertson has some reasonably transferrable skills that would suit him well as a call centre operator. He is currently working in an administrative role and has worked with customers for many years.
There are two matters that require comment.
Firstly, the applicant provided submissions regarding Mr Robertson’s slurred speech, and how that relates to a requirement of excellent communication skills as specified in the role requirement for a call centre operator. At [60] of his statement he provides:
“At time, I have slurred speech as a result from continuous pain, bad sleep, and taking medication which affects my presentation and is again embarrassing. This creates a false image of who I am as a person and employee”.
I accept these are real and apparent symptoms as outlined by Mr Robertson. I do not see how this presentation, which is said to occur “at times”, would prevent him from completing the inherent requirements of the role as a call centre operator. Without appearing to criticise Mr Robertson, these appear to be not much more than subjective concerns about the effects of his injury.
Secondly, Dr Athanasou briefly comments on Mr Robertson’s lack of transferrable skills:
“Moreover, his employment prospects would be limited by (a) a relative lack of transferable skills from cellar work for more than 17 years in a registered club to the field of office work, (b) limitations in the local labour market and (c) any negative employer perceptions of his ability. He could undertake some duties on a short-term basis but probably it is drawing a long bow to say that he could perform these occupations on a permanent basis for the remainder of his working life to age 67. For instance, it is relevant to note that the average age of call centre workers in Australia is 34 years (Source: Australian Government, Labour Market Insights, retrieved April 2022).”
This conclusion suffers from the same issue as discussed above. It does not appear to be properly reasoned or based on any analysis. There is no other suggestion that Mr Robertson does not have relevant transferrable skills and he is currently working in an administrative role. I cannot consider the limitations of the local labour market, and it is not relevant that he may not be able to perform those options up to the age of 67. I am considering Mr Robertson’s capacity for suitable employment now, not at some point in the future.
Decision
Mr Robertson presents as genuine and reasonable, and has been through a significant trauma since the original injury and medical consequences thereof. The undertaking of a spinal fusion at Mr Robertson’s age is testament to the significant effects of the injury suffered.
To his credit, Mr Robertson has quite quickly got back on the employment horse and is currently working in suitable duties with the respondent. This has been shown to be beneficial for long term physical and mental health outcomes. There is no doubt that Mr Robertson will never again perform the type of work he was doing pre-injury. His focus has now shifted to more sedentary, administrative type roles.
It is in that context that the insurer has made a work capacity decision reducing Mr Robertson’s entitlement to nil on an ongoing basis. The dispute in this matter concerns suitable employment, and in determining this dispute I am limited to the definition provided in s 32A of the 1987 Act. That definition provides a list of factors that must be considered and some that cannot be regarded.
As can be seen from the discussion above, much of the dispute in this matter concerns the medical issues, in terms of the extent of Mr Robertson’s ongoing incapacity. I am required to consider “the details provided in medical information”. I have discussed the contents of the medical information, how the parties have addressed that information, and my views of the information above.
In the present case I am not satisfied that the applicant has met his onus to show that the respondent’s decision should be overturned. In reaching this conclusion, I have had regard to the following factors:
(a) Mr Robertson’s current restrictions, as outlined in his certificate of capacity, which are not particularly clear regarding his capacity to sit and stand. I accept that Mr Robertson needs to change postures, but there is no specific restriction outlined in terms of sitting for extended periods. Further, I am satisfied that a call centre operator would have the capacity to change positions, and this is supported by the employer feedback;
(b) the reduced weight that I can give to the report of Dr Athanasou. I do not accept that the report can be considered a bare ipse dixit, but the reasoning process in the report is not particularly clear. At times it appeared confused in purpose, and the conclusions (for example, how Mr Robertson would have a difficulty answering incoming calls) are not explained or connected to any physical restriction;
(c) the lack of medical support for any secondary or consequential medical issues affecting Mr Robertson, such as a psychological disorder or sleep issues. The first finds no evidentiary support in the material, the second there is no connection or explanation as to how that affects Mr Robertson’s capacity. The latter particularly so where Mr Robertson is currently approved to work 35 hours per week, and is performing suitable duties of an administrative nature for anything between 20-30 hours per week with the respondent, and
(d) the lack of commentary one way or another from the treating general practitioner. Dr Fountas did not respond to the request for approval of the suitable employment options, but he continues to certify Mr Robertson with capacity for suitable employment, with restrictions that do not appear outside of the roles identified.
I do not think that, as occurred in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), the roles identified (particularly that of call centre operator) are purely hypothetical or theoretical in nature. Whilst, like in Dewar, Mr Robertson is currently performing suitable duties, those duties are as far as I can tell (and have no evidence or submissions to the contrary) real duties and perform an important function for the respondent.
One of the centre points of the applicant’s submissions was the current flexibility afforded to the applicant by his employer and how difficult it would be to find similar flexibility on the open labour market. I have given much consideration to that matter. Evidence from the applicant’s statement, as well as commentary in the certificates of capacity make it apparent that the flexibility to work from home, alternating with in-office duties, is an important part of Mr Robertson’s capacity to perform his role in suitable duties with the insurer.
This consideration does not outweigh the other factors I have discussed above. There is insufficient medical information addressing this specific issue outside of the brief reference in the certificate of capacity. Dr Stephenson, for example, opines that Mr Robertson is fit for “office-based duties”. Dr Athanasou comments that “To his credit, he has returned to work but it should be noted that he undertakes 50-60% of his work from home”. He goes no further, however, to state that Mr Robertson could not do work in suitable employment for 30 hours per week in an office, as opposed to working for some lesser time in an office and some time at home.
For the above reasons, I am satisfied that Mr Robertson is capable of working 6 hours per day, 5 days per week in suitable employment as a call centre operator. The work capacity decision was soundly made. I decline to make an interim payment direction.
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