Roche v ISS Property Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roche v ISS Property Services Pty Ltd [2024] NSWPIC 708
APPLICANT:	Yubelkis Cabrera Roche
RESPONDENT:	ISS Property Services Pty Limited
MEMBER:	Brett Batchelor
DATE OF DECISION:	17 December 2024
DATE OF AMENDMENT:	6 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the respondent conceded injury but raised an issue as to the mechanism of injury, and claimed the effects thereof had ceased, therefore the applicant was not entitled to continuation of weekly benefits or medical expenses; findings on the mechanism of injury and that the effects of such injury had not ceased; finding that the applicant has a current work capacity having regard to what was determined in Wollongong Nursing Home v Dewar; award for the applicant for weekly benefits and medical expenses pursuant to sections 37 and 60.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to her lumbar spine arising out of or in the course of her employment on 16 September 2022. 2. The effects of that injury have not ceased. 3. The applicant is able to earn $400 per week in suitable employment. 4. The applicant’s pre-injury average weekly earnings as at 29 September 2023 were $1,185.22 as indexed. Eighty percent thereof is $948.18. 5. The respondent is to pay the applicant $548.18 per week as indexed from 29 September 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 6. The respondent is to pay the applicant’s hospital, and medical and related treatment expenses, pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Yubelkis Cabrera Roche (the applicant/Mrs Roche) seeks weekly benefits and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury on either 15 or 16 September 2022 arising out of or in the course of her employment as a cleaner with ISS Property Services Pty Ltd (the respondent).
At the time of her accident Mrs Roche was employed as a full-time cleaner at the Revesby South Public School. On the day of the accident she was lifting a heavier than usual garbage bag out of a bin. As she bent over and tried to pull the bin liner up, she says that she felt a crack in her back, and pain that spread down to her legs. As she could not move the bag by herself, she says that she asked a co-worker to help her.
The applicant says that as she worked during the rest of her shift, back pain increased and spread down to her buttocks and both legs. Mrs Roche managed to work to the end of her shift.
After no improvement over the following few days, the applicant consulted her general practitioner, Dr Sidrak, who prescribed anti-inflammatory medication, organised some scans and made a referral for physiotherapy.
Dr Sidrak referred the applicant to Dr McKechnie, neurosurgeon, who treated her over a period from 13 December 2022 until early 2024. Dr McKechnie recommended nonoperative treatment, commenced Mrs Roche on a trial of Lyrica for neuropathic pain, and recommended that she should continue with physiotherapy and focus on core strengthening exercises. Later CT guided facet joint injections were tried which were unsuccessful in helping with pain.
The respondent initially accepted liability for the injury and paid weekly benefits until
28 September 2023. Prior to that date, Mrs Roche has been independently medically examined on 28 April 2023 by Dr Wilcox, general surgeon, who produced a report dated
[1] Reply p 1.
10 May 2023.[1] Dr Wilcox concluded that the applicant did not sustain any substantial injury to her back on 16 September 2022. His diagnosis was of a possible mild back strain which had resolved.
On 7 September 2023 the respondent issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 Act (the 1998 Act) advising the applicant that weekly payments of compensation would cease on
[2] Application to Resolve a Dispute (ARD) p 5.
28 September 2023. [2]
On 23 January 2024 the applicant was independently medically examined by Dr Herald, orthopaedic surgeon, who produced a report of that date.[3] Dr Herald assessed the applicant as having suffered an aggravation of underlying spondylosis, and chronic pain, saying of the applicant:
“Her employment has been a substantial contributing factor to the soft tissue injury to the lumbar spine. She has obviously had some pre-existing lumbar spondylosis, but although this was manageable with occasional intermittent flare-ups treated with acupuncture in the past, it was not until after her workplace injury on 16 September 2022 that she had a constant flare-up and acceleration of her underlying spondylosis, resulting in a permanent restriction in her function and chronic pain.”[4]
[3] ARD p 20.
[4] ARD p 22.
On 20 May 2024 the applicant sought a review of the respondent’s s 78 notice dated
7 September 2023 supported by reports from Dr Sidrak, Dr McKechnie, and the report of
[5] ARD p 9.
Dr Herald dated 15 January 2024 [sic, 23 January 2024].[5]
On 4 June 2024 the respondent issued to the applicant a review notice under s 287A of the 1998 Act[6] confirming the denial of liability for the applicant’s claim, summarising its decision as follows:
“Liability for your claim remains disputed, on the basis that you have recovered from the effects of any injury sustained on or about 15/16 September 2022. Liability to pay ongoing weekly payments or medical expenses remains disputed.”
[6] ARD p 13.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    Has the applicant recovered from the effects of the injury to her lumbar spine on 15 or 16 September 2022?
(b)    Is the applicant’s entitled to an award of weekly compensation from
29 September 2023?
(c)    What is the applicant’s capacity for employment from 29 September 2023?
(d) Is the applicant entitled to an award for medical expenses pursuant to s 60 of the 1987 Act?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a conciliation/arbitration hearing on 4 December 2024. Mr McManamey of counsel appeared for the applicant briefed by Ms Thum. The applicant attended with her solicitor. Mr Murray, solicitor, appeared for the respondent. Representatives of the respondent also attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attachments;
(c)    Application to Lodge Additional Documents lodged by the respondent on
28 November 2024 with report of Dr Wilcox dated 10 November 2024 attached (ALAD 28 November 2024).
(d)    Application to Lodge Additional Documents lodged by the respondent on
14 December 2024 with clinical notes and treatment records of Dr Sidrak attached (ALAD 14 December 2024).
The report of Dr Wilcox dated 10 November 2024, and the clinical notes and treatment records of Dr Sidrak which only became available to the parties on the morning of the arbitration hearing but had not been lodged with the Commission and therefore were not available to the Commission during the video hearing, were tendered by the respondent. The applicant objected to the admission of the report of Dr Wilcox, but consented to the clinical notes and treatment records of Dr Sidrak being admitted. Following receipt of submissions, the report of Dr Wilcox dated 10 November 2024 was admitted into evidence, together with the records of Dr Sidrak.
The respondent also sought to rely on clinical notes and treatment records of a physiotherapist who had treated the applicant prior to the date of injury the subject of the proceedings. Again, these records were not before the Commission, but available to the parties. The applicant objected to the receipt of this material into evidence. Following submissions from the parties, it was rejected.
Reasons for the admission of the report of Dr Wilcox and rejection of the physiotherapy records are included in the recording of the proceedings, a transcript of which can be obtained by the parties on request.

Oral evidence

There was no application to cross-examine the applicant or to rely on oral evidence.

SUBMISSIONS

The submissions of the parties are recorded. In summary, they are as follows.

Applicant

The applicant submits that there is no issue that she suffered an injury to the lumbar spine on either 15 or 16 September 2022. Nothing turns on whether it was one date or the other.
The applicant refers to her statement dated 27 August 2023, and in particular to [5]-[7] thereof (under the heading “My Injury”) as to how she injured her back.[7] The applicant notes [12]-[14] of the statement, setting out details of her chronic back pain following the work injury. The applicant submits that this evidence of chronic incapacity should be accepted.
[7] ARD p 2.
The applicant submits that her evidence is consistent with what is recorded by Dr Sidrak at [1]-[5] in his report dated 15 January 2024.[8] Mrs Roche reports significant disability to the doctor.
[8] ARD p 18.
The applicant refers to the clinical notes of Dr Sidrak, noting the consultation of
20 September 2022 in respect of back pain. The notes also record attendances on
28 September 2022 and 19 October 2022 when complaints of back pain are recorded. The applicant notes consistent attendances on Dr Sidrak recorded in his notes in respect of pain in the lower back and thoracic spine. Medication is prescribed, and a referral to
Dr McKechnie is given.
The applicant notes the report of Dr McKechnie dated 10 March 2024 (addressed to Unified Healthcare Group), recording an initial consultation on 13 December 2022 on referral by
[9] ARD p 25.
Dr Sidrak.[9]
The respondent refers to the progress reports of Dr McKechnie dated 14 February 2023,
[10] ARD pp 29, 30 and 31.
13 April 2023 and 10 May 2023,[10] noting that in the last report Dr McKechnie records that the applicant continues to work light duties of two days a day, three days a week.
The applicant refers to the independent medical examination report of Dr Herald dated
23 January 2024 in which there is recorded:
(a)    the past medical history of accidents in 2014 and 2018;
(b)    the finding on examination that she is 176 cm in height;
(c)    finding on examination of restriction of movement, including in straight leg raising, and radiculopathic symptoms occurring down both legs, acknowledging that this is not a classic demonstration of radiculopathy;
(d)    an assessment of aggravation of underlying spondylosis and chronic pain;
(e)    the fitness for suitable duties, together with the expression of opinion that restrictions on physical activity resulted in uncertainty as the ability to find any meaningful employment, and
(f)    no abnormal illness behaviour, but rather features of chronic pain from the workplace injury from the start.[11]
[11] ARD p 20.
The applicant submits that the finding of Dr Sidrak, Dr McKechnie, and Dr Herald are consistent with the pathology demonstrated in the radiological investigations.
The applicant contrasts these findings and opinion with those of Dr Wilcox, who she submits expresses a very extreme view in his report dated 10 May 2022. The applicant notes that in considering this report, it is against the background that liability for the injury to her lumbar spine is not in issue. The applicant submits that the examination carried out by Dr Wilcox is not “an independent examination”, it is a forensic investigation which colours the doctor’s report.
The applicant refers to the second report of Dr Wilcox dated 10 November 2024.[12]The applicant submits that Dr Wilcox has his facts wrong when he concludes that the applicant must have been upright when she was lifting the bag of rubbish. It is contrary to her evidence that she had to bend into the bin, which was only 1m high, to lift the bag of rubbish. This is in the context of Mrs Roche being 1.75m in height. The applicant submits that her evidence that she was bending into the bin is uncontradicted. Dr Wilcox’s conclusion that the applicant must have been standing upright is wrong, therefore it was only a minor injury. The applicant submits that Dr Wilcox has no demonstrated expertise as an occupational [sic?] specialist.
[12]ALAD 28 November 2024 p 1.
The applicant submits that the history of her not experiencing pain in her back is contrary to other evidence. There is no suggestion on the clinical notes of Dr Sidrak of delayed onset of pain.
The applicant notes from the first report of Dr Wilcox that he examined her back and noted scoliosis convex to the left at the level of T4, and minor reaction to percussion at T4. More significantly, Dr Wilcox found muscle guarding of the paraspinal muscles, which is an objective sign, and complaint of pain localised at the level of L4/5. That is the level of abnormality in the disc. This finding is completely consistent with the underlying radiology.
The applicant submits that the difficulty with Dr Wilcox’s opinion is that the clinical findings are all consistent with ongoing back problems, but he does not address them. When asked on p 8 of the report (and p 8 of the Reply) if the clinical examination found evidence of active pathology which could explain Mrs Roche’s continuing symptoms, the doctor discounts the objective findings by saying that the applicant maintained some inconsistent muscle guarding which, according to the applicant, was not what he said earlier in the report when he was reporting on the examination. The applicant submits that Dr Wilcox does not explain why
Mrs Roche has muscle guarding, which is a protective mechanism of the paraspinal muscles.
The applicant submits that essentially Dr Wilcox has embarked upon an opinion as an advocate for the respondent, particularly in respect of the injury itself, and its mechanism. That is shown up further, particularly in the second report of Dr Wilcox dated
10 November 2024.
In that second report the applicant is recorded as seeking to correct Dr Wilcox’s misunderstanding about the bin, by showing him pictures of the bin. The bins were not 130cm in height, but less than that. Having been shown that his original information about the bin was wrong, the applicant submits that there is no attempt demonstrated by Dr Wilcox to use this information. It shows that the applicant’s evidence that she was bending over the bin is highly plausible. The height of the bin originally noted by Dr Wilcox colours his opinion on injury.
The applicant submits that the opinion of Dr Wilcox is “an outlier” in terms of the body of clinical opinions about the applicant. The applicant was seen on numerous occasions by her treating practitioners giving a consistent presentation of her condition.
The applicant submits that Dr Wilcox’s report of 10 November 2024 is coloured by his advocacy for the respondent. He has an untenable view as to how the accident occurred, and his opinion on the causation of the applicant’s back injury is unlikely.
The applicant submits that the opinion of Dr Wilcox is not persuasive, and the evidence of the applicant’s treating doctors should be accepted. The applicant has sustained significant incapacity in consequence of the injury to her lumbar spine, and a psychological condition. She has been certified as being able to work for two hours a day, three days a week in suitable duties, with a 5kg lifting limit.
The applicant submits that, with the limitations placed on her in respect of her ability to work in suitable employment and having regard to what was said in Wollongong Nursing Home v Dewar,[13]there is no suitable work available to her. She is not able to sell her services as a worker in the NSW labour market, and has no current work capacity for suitable employment.
[13] [2014] NSWWCCPD 55 (Dewar).
The applicant points out that she has limited English, and has only ever worked as a cleaner in Australia since 2012.
The applicant submits that, pursuant to s 37 of the 1987 Act, she is entitled to an award in her favour for weekly benefits at the rate of $948.18per week, being 80% of the agreed pre-injury average weekly earnings (PIAWE) of $1,185.22, from 20 September 2023 to date and continuing.
The applicant also seeks a general order under s 60 of the 1987 Act for medical expenses.

Respondent

The respondent notes from [6]-[7] of her statement dated 27 August 2024 the accidents in which the applicant was involved in 2014 and 2018 when she injured her neck, right shoulder and back.
The respondent then considers the clinical notes of Dr Sidrak[14] and the opinion of Dr Herald.
[14] ALAD 14 December 2024.
The respondent notes that on 23 December 2020, two years before the accident the subject of the current proceedings, she underwent a CT scan of her lumbar spine at the request of Dr Sidrak, whose clinical note revealed low back pain radiating to the right leg.
The respondent refers to the following attendances recorded in the clinical notes of
Dr Sidrak:
(a)    21 May 2019, p 11;
(b)    19 February 2020, referring to chronic neck pain, p 25;
(c)    9 December 2020, referring to back pain and which reveals that radiculopathy was well established by that time;
(d)    13 April 2021, referring to recurrent back pain at work, p 33;
(e)    20 October 2021, referring to increasing back pain radiating to legs, p 42;
(f)    16 November 2021, referring to ongoing low back pain, p 45, and
(g)    20 September 2022, an attendance four or five days after the date of injury in the current proceedings.
The respondent submits that these entries demonstrate the 2014 and 2018 accidents which are referred to by Dr Herald in his report dated 23 January 2024 as past medical history did not cause “..intermittent symptoms…” which “…were manageable with conservative treatments such as physiotherapy.” The respondent submits that the pre-existing symptoms were not minor, and resulted in repeated attendances on Dr Sidrak.
The respondent notes that Dr Sidrak’s notes at p 306 contain a referral to Dr McKechnie, the current treating neurosurgeon, dated 13 April 2021 for opinion and management of “ongoing disc disease”. There is a further such referral dated 16 November 2021 for “progressing back pain”. The respondent submits that the most recent CT scan of the lumbar spine reveals a consistent and significant pre-existing lumbar spinal condition, which included radiculopathy and sciatica.
The respondent submits that the two referrals to a neurosurgeon, Dr McKechnie, in the clinical notes of Dr Sidrak are not referred to by the applicant in her statement, and not noted in the prior history recorded by Dr Herald. The respondent submits that Dr Herald does not have an adequate factual foundation for the opinion he expresses in his report.
The respondent refers to [2] in the report of Dr Sidrak dated 15 January 2024 which contains a diagnosis of lumbar disc disease with L2/3 degenerative disc desiccation shown on the MRI of the lumbar spine dated 9 December 2022. The respondent submits that there is no indication in Dr Sidrak’s report as to how that lumbar disc disease results from the injury the subject of the applicant’s current claim.
The respondent notes that at [5] in his report Dr Sidrak sets out the applicant’s current capacity for work, which included an ability to drive.
The respondent refers to the initial post injury consultation the applicant had with
[15] ARD p 28.
[16] ARD p 29.
Dr McKechnie on 13 December 2022 and the report dated 14 December 2022.[15] In that report, Dr McKechnie does not refer to the pre-September 2022 low back pain, but to a sudden onset of low back pain which has persisted. In the subsequent report dated 14 February 2023 Dr McKechnie comments on the MRI radiology report, which does not give any indication of any significant pathology.[16]

In Dr McKechnie’s report in respect of a consultation on 20 June 2023, an agreement not to try any further injections is recorded.[17] On 9 August 2023 Dr McKechnie records persistent pain in the lower back and increasing pain over the site of the right hip and buttock, and fitness to continue with part time light duties two hours a day, three days a week with restriction on any lifting and bending.[18]
[17] ARD p 32.
[18] ARD p 33.
In the report of Dr McKechnie dated 10 March 2024 following the last consultation on
[19] ARD p 25.
5 March 2024 the doctor records a sudden onset of lower back pain radiating superiorly toward the thoracic region as well as inferiorly to both legs with intermittent numbness, and the same assessment of fitness for employment.[19]
The respondent submits that the opinion of Dr McKechnie as to causation of the applicant’s symptoms being consistent with the work related injury which occurred on
16 September 2022 is patently incorrect. It ignores previous referrals to Dr McKechnie, and has the fatal deficiency of being based on an incorrect history of prior problems with the low back as recently as 10 months before the current injury.
The respondent submits that, consistent with the findings in cases such as Paric v John Holland (Constructions) Pty Ltd[20] and Hancock v East Coast Timber Products Pty Limited,[21] any weight that can be placed on the evidence of Dr McKechnie is severely diminished.
[20] [1985] HCA 58.
[21] [2011] NSWCA 11.
The respondent does note the continuing opinion of Dr McKechnie that the applicant does have a capacity to work in suitable employment.
The respondent submits that Dr Herald understates the extent of the applicant’s pre-injury condition, and attempts to delineate the nature and extent of the applicant’s pre-injury symptoms with her post-injury symptoms. His acceptance that the applicant’s pre-injury symptoms were intermittent ignores the multitude of pre-injury consultations with Dr Sidrak. Dr Herald was not aware of previous flare ups in the applicant’s condition, or the previous referral to Dr McKechnie.
The respondent does however note that Dr Herald does not place any hourly limit on the suitable duties for which he certifies the applicant is fit. He says that Mrs Roche is fit for sedentary duties. The respondent submits that Dr Herald overstates the extent of the applicant’s incapacity, and for this reason it is important
The respondent submits that it is beyond the expertise of Dr Herald to comment on whether the applicant as to whether Mrs Roche would be able to find any meaningful employment. This a matter to be considered having regard the matters referred to in s 32A of the 1987 Act in respect of suitable employment.
The respondent refers to the reports of Dr Wilcox dated 10 May 2023 and
10 November 2024. The respondent places significance on the intervening medical history recorded in the later report of the involvement in the motor vehicle accident in 2018, and the finalisation of the legal process from that accident. The respondent submits that this suggests that the applicant has been in receipt of compensation as a result of that accident concurrent with the current proceedings.
The respondent notes that Dr Wilcox’s review of the MRI scans of the lumbar spine dated
9 December 2022 and thoracic spine dated 29 December 2022 reveal minor benign pathology only, and the doctor’s opinion is that the applicant suffered a minor injury only on 16 September 2022.
The respondent notes the observation of Dr Wilcox that no objective abnormalities were discovered on examination, meaning that there was no consistent paraspinal muscle spasm, the reflexes were preserved, there was no muscle wasting and the spine was straight with quite normal physiological curves. The respondent submits that Dr Wilcox is attempting to explore the symptomatic symptoms reported by the worker as against his examination findings. The point to be made is there is no opinion to challenge the doctor’s finding that the supporting muscles would go into protective spams if there was symptomatic spinal pathology.
The respondent notes the five dot points listed by Dr Wilcox on p 8 of his report dated
10 May 2023, and that it is not submitted by the applicant that that is not a true record of what he found on examination.
The respondent submits that in respect of the report of Dr Wilcox dated 10 November 2024, little weight should be placed on the history in respect of the size and height of the bin from which the applicant was lifting a bag of rubbish when she injured her back. The respondent submits that Dr Wilcox based his opinion on his examination of the applicant and his view of the radiological evidence. The respondent submits that the opinion of Dr Wilcox is consistent with the radiological evidence, and that the applicant has fully recovered from the effects of the work injury.
The respondent notes Dr Wilcox’s opinion that the applicant is a reasonably fit and healthy woman for her age and there is no reason why Mrs Roche could not go back to her activities of daily living including returning to work work as a school cleaner. The respondent notes that Dr Wilcox states that the major inconsistencies demonstrated by the applicant are under conscious control.
The respondent submits that the applicant has some fluency in English, and having regard to the matters referred to in s 32A of the 1987 Act in respect of suitable employment, could obtain casual employment as a courier/Uber driver, cashier, or general clerk. The respondent concedes that the applicant’s ability to earn in these roles would not exceed 80% of PIAWE. She has an ability to earn $400-$650 per week in suitable employment.

Applicant in reply

The applicant notes that the respondent has addressed at length a pre-existing condition from which it submits the applicant suffers. That submission does not address the issue in these proceedings, which is defined in the s 78 notice, and in the earlier ruling excluding the physiotherapy notes. The issue is, has the applicant recovered from the accepted injury? Whether or not the applicant had a pre-existing condition is irrelevant to that consideration. Ther applicant submits that there is nothing to suggest that the applicant has recovered from the accepted injury, and that is a matter that would require expert evidence. What the evidence clearly shows is that the applicant suffered injury in September 2022, and that since then she has made continuing complaints of pain and restriction of her thoracic and lumbar spine. An examination of Dr Sidrak’s clinical notes reveals constant and frequent attendances by the applicant on the doctor from September 2022 with those complaints. The applicant does not require a medical opinion to relate the current symptomatology to the injury. This follows from what the High Court said in Watts v Rake,[22] and Purkess v Crittenden.[23] Where one has a history of an accepted injury and continuing symptoms, one is entitled to conclude that they relate to the injury. If the respondent wishes to argue that that is wrong, it is for the respondent to bring the evidence. There is no such evidence.
[22] [2006] HCA 58; (1960) 108 CLR 158.
[23] [1965] HCA 34; (1965) 114 CLR 164.
In any event, the applicant submits that what the respondent says is factually wrong. What was highlighted by the respondent were some prior attendances in respect of back pain
May 2019, February 2020, December 2020, April 2021, and final attendances in October/November 2021. What the respondent did not mention is that from
16 November 2021 when the applicant was referred for physiotherapy, the applicant consulted Dr Sidrak on 13 separate occasions prior to 20 September 2022. When the clinical notes are examined, during those 13 visits there was not a single mention relevant to the question of back pain. When these matters are considered, what the applicant said to
Dr Herald of an occasional flare up in back pain which causes her to go and see the doctor, is undeniably correct. The applicant sees the doctor in November 2021 and goes and gets physiotherapy, and she does not then have a problem.
The applicant submits that during this period from May 2019 she continued to work for the respondent doing her cleaning duties which are known to be fairly heavy work without complaint or having to see a doctor. A fundamental change occurred in September 2022, Mrs Roche became incapacitated and then sees Dr Sidrak far more frequently than before, with constant complaint of pain and acceptance of incapacity.
That is a matter that was accepted by the respondent by providing the applicant with six hours a week of light duties.
When one looks at the proper history, Dr Herald is entirely correct in his opinion. The past condition had nothing to do with the current condition.
The applicant submits that the reference by Dr Wilcox to the motor vehicle accident should be ignored, and represents Dr Wilcox trying to be an insurance investigator. There is no evidence as to what, if any, compensation the applicant may have received as a result of that accident.
The applicant submits that central to the opinion of Dr Wilcox that the applicant’s back injury was only mild is his conclusion that Mrs Roche was not bending over when she sustained the injury, and that is not the case, Her evidence is that the bin was less than 1m high and that she was bending over, and that she experienced immediate back pain from that time.
On the issue of incapacity, the applicant submits that the occupations for suitable work suggested by the respondent all require a degree of English that she does not have. The only work that Mrs Roche has done in the past is physical work.
The applicant also submits that no significance should be given to Dr Herald not placing a weekly time limit on the number of hours she could work in suitable duties, and the evidence of Dr Sidrak and Dr McKechnie should be accepted in this regard.

FINDINGS AND REASONS

Has the applicant recovered from the effects of the injury to her lumbar spine on
15 or 16 September 2022?

Date of injury

The respondent accepted liability for the applicant’s injury on either 15 or 16 September 2022 and paid her weekly benefits until 28 September 2023. The applicant’s claim for such benefits commences on 29 September 2023.
The first document in evidence attached to either the ARD or Reply that post dates 15 or 16 September 2022 is a Certificate of Capacity (COC) dated 19 October 2022 issued by
Dr Sidrak attached to the Reply.[24] That COC contains a “Patient stated date of injury” of
[24] Reply p 13.
16 September 2022, and certification that Mrs Roche has capacity for some type of employment from 19 October 2022 to 19 November 2022 for nine hours a day, five days a week.
The next series of documents that are attached to the Reply are as follows:
(a)    “Initial Contact Template – Worker”, produced by the respondent in which both the date of injury and date of contact is nominated as 15 November 2022;[25]
(b)    “Initial Worker Contact Script” produced by the respondent, which does not contain reference to the date of injury,[26] and
(c)    “CARE Incident Report” dated 10 November 2022 in which the date of injury is not nominated, but the time and date of the beginning of shift is recorded as 5:30 AM on 15 September 2022.[27]
[25] Reply p 16.
[26] Reply p 19.
[27] Reply p 22.
The s 78 notice dated 7 September 2023 nominates a date of injury of “15/16 September 2022”.
The applicant in her statement dated 27 August 2024 nominates 16 September 2022 as the date of injury. The date of injury recorded in the first and second reports of Dr Wilcox dated 10 May 2023 and 10 November 2024 is 16 September 2022.
I agree with the applicant’s submission that nothing turns on whether the date of injury is
15 or 16 September 2022.

Description of mechanism of injury

The COC dated 19 October 2022 contains the following description of “How is the injury/disease related to work?”:
“Lifting heavy bins while at work at school. Developed progressively worsening lower back pain radiating down both legs, numbness and tingling in both legs.”
That COC is consistent with the entry dated 19 October 2022 in Dr Sidrak’s clinical notes:
“Presented with lower back pain radiating bown both legs gets numbness in legs no fall or injury to back numbness when sitting down legs occured after lifting heavy bins on the 16/09/2022 states has decided to do this injury under work cover”[28] [sic]
[28] ALAD 14 December 2024 p 59.
The Initial Contact Template – Worker contains the following description of injury in response to the question “Detailed mechanism of injury sustained?”:
“15 September at 2.30pm, Yubelkis advised that she was lifting 7-8 bags of rubbish (240l) out from the bin and into the big bin outside. She advised that in the process of doing this, she heard a twisting sound in her back and has been experiencing back pain since.”
The CARE Incident Report contains the following description of injury:
“Employee reports as she was lifting a heavy bag of rubbish to place in the larger bin she has strained her lower back but has described the pain as moving to the upper side of her back also. Employee will completed her shift. Employee has seen you r doctor and has asked her to take Panadol and will go to do a MRI.” [sic]
Dr Sidrak in his report dated 15 January 2024 records the following history of injury:
“Yubelkis reports, on the 16th of September 2022, developing lower back pain after lifting heavy bins while working as a cleaner at a local school. She then developed progressive lower back pain with numbness and radiating pain in her legs. She reported that this was aggravated with movements of bending or twisting or with lifting any heavy objects.”
In his initial post injury consultation with the applicant on 13 December 2022, Dr McKechnie records the mechanism of injury as:
“She suffered a work related injury on 16 September 2022 whilst lifting a heavy object and placed in a bin…She developed the sudden onset of lower back pain which persisted. This radiates upwards towards the thoracic region as well as downwards to both legs with a feeling of numbness intermittently. Her symptoms are worse with prolonged sitting and walking.”
In his report dated 10 May 2023 Dr Wilcox notes that one of Mrs Roche’s duties was to take a 240 plastic bin which had wheels to a skip which was about 130cm high, with sides of about 130cm. The applicant told the doctor that normally the contents bins would be quite light. She would stand by the bin and pull the liner out after tying the top of it in order to grasp it with both hands. She would then pull the bin liner straight up before throwing it into the skip. Dr Wilcox records:
“However, on 16 September 2022, she said that a bag was significantly heavier than usual. This she said came from Block F. As she was pulling the bin liner up at about 3.00pm she heard a cracking noise throughout the whole of the back. She said that she stood completely still for about 20 seconds whilst holding the bag which was almost out of the bin. After this she continued the action and threw the liner and its contents into the skip.
She said that she experienced no pain subsequently and continued to do her work until the end of the shift.”
Dr Wilcox then records that Mrs Roche said she drove home, had a hot shower but then began to experience pain affecting the whole of her back from the base of the neck going down to the back of her buttocks, and then further radiating down both lower limbs, initially the left followed by the right. After this, the pain was equally severe in both the left and the right side, She took two Panadol Osteo and went to bed.
In his report dated 23 January 2024 Dr Herald describes Mrs Roche as having to lift a significantly heavier bag than usual that had been placed in “the bin”, and:
“As she tried to bend over and pull the bin liner up, she felt a crack in her whole back as well as pain radiating down both legs. She had to get a co-worker who was doing COVID testing to come and help her, and although she was in a lot of pain, she was able to continue the shift with gradually increasing back pain radiating into her buttocks and both her legs.”
In his report dated 10 November 2024 following his examination of the applicant on
29 October 2024 Dr Wilcox notes corrections advised by Mrs Roche to the previous history he recorded in his earlier report. Relevantly, these corrections were:
(a)    it was a 240l plastic bin (correction of a typographical error);
(b)    within the 240l was a plastic liner;
(c)    phone photographs of the 240l bins shown by Mrs Roche to the doctor revealed that they were similar or the same as the domestic type waste bin with a red top, and did not appear to be 130cm in height, but more likely like a meter or slightly less, and
(d)    a photograph of the skip revealed it to be seemingly small, the sides of which did not appear to be more than 1m in height.
In her statement dated 27 August 2024 the applicant records her injury in [5]-[8] under the heading “My Injury” as follows:
“5. On 16 September 2022 I was lifting a garbage back out of a bin. The bag was significantly heavier than usual and as I bent over and tried to pull the bin liner up, I felt a crack in my back and pain spread down my legs.
6. At this point I notice that the bag contained building materials and blocks inside it which is why it was heavier than usual. Renovations were going on around the building at the time and I recall thinking one of the workers must have put the building materials inside the bag.
7. I could move the bag myself due to the pain in my back and I had to ask a co-worker to come and help me.
8. Throughout the rest of my shift the pain in my back gradually increased and spread down to my buttocks and both my legs. I managed to work through the pain to the end of my shift.”
I note that it was not until the applicant was examined by Dr Herald on 23 January 2024 that she gives a history of requesting a co-worker to come and help her with the heavier than usual bag on 16 September 2022. This is repeated in her statement dated 27 August 2024. It is in contrast to the history recorded by Dr Wilcox on 10 May 2023 that after hearing a cracking noise throughout the whole of the back she stood completely still for about 20 seconds whilst holding the bag which was almost out of the bin, and thereafter continued the action and threw the liner and its contents into the skip. It is also in contrast to the history in the Initial Contact Template – Worker referred to above at [83].
I appreciate the care which must be exercised when relying on clinical notes in evidence in the proceedings, discussed by Santow JA in Nominal Defendant v Clancy,[29] and what may be contained in such notes compared with material contained in a detailed contemporaneous report. In that case, Santow JA did not consider that a detailed contemporaneous report should be treated as inaccurate because it did not find its counterpart in the notes. Such comments could in my view extend to the reports of treating practitioners to other practitioners, in this case Dr Sidrak and Dr McKechnie. Busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable frank injury.[30] However, it is a reasonable inference that doctors who are retained for medico-legal purposes will pay greater attention to the mechanics of an injury in issue in proceedings in which they are retained.
[29] [2007] NSWCA 349.
[30] See Davis v City Council of Wagga Wagga [2004] NSWCA 34.
The most contemporaneous reports of the incident of 16 September 2022, apart from the COC of Dr Sidrak dated 19 October 2022, are those contained in the Initial Contact Template – Worker dated 15 November 2022 and the Care Incident Report dated 10 November 2022, referred to above at [83]-[84]. The Initial Contact Template – Worker report dated
15 November 2022 contains a description of “Detailed Mechanism of injury sustained?” requested therein. The Care Incident Report dated 10 November 2022 contains simply a “DESCRIPTION” of the incident.

The applicant criticises the reports of Dr Wilcox as being coloured by the fact that the doctor has embarked upon an opinion as an advocate for the respondent, particularly in respect of the injury itself, and its mechanism. I do not accept that submission. However, I do note that that Dr Wilcox in his first report dated 10 May 2023 says that the applicant would have been standing upright with little or no flexion of the back when she heard a cracking noise that seemed to come from her whole back, and in his second report does not address the mechanism of injury having regard to the photographs he was shown by Mrs Roche as to the height of the 240l plastic bin, and in the context of Mrs Roche being 1.75m in height. This submission is referred to at [29] above, which I accept.
I am unable to find if the applicant was assisted by a co-worker at the time she injured her back. I do not think that is relevant. However, I do find that Mrs Roche was bending into the 240l plastic bin to lift out the heavier than usual bag of rubbish when she suffered injury to her back, and experienced immediate onset of pain in the back.

Recovery from the effects of injury on 16 September 2022?

Dr Wilcox maintains that the applicant suffered a minor injury to the back only, and in his first report says that the implication of:
(a)    the applicant standing upright with no flexion of the back when she heard a cracking noise that seemed to come from the whole of her back;
(b)    that the applicant completed the task of throwing the bag into the skip and did her normal cleaning duties for the next three and a half hours with no pain;
(c)    that the applicant drove home after her shift, and
(d)    it was only when she was home and after she had a shower that she began to experience pain affecting the whole of her back from the base of her neck and going down both limbs, was that:
“…any possible injury she may have sustained was mild. It would not have involved an unusual compression of the lumbar intervertebral discs because there could have been little of no flexion of the spine as she was lifting the bag out of the 240-liter bin. She had to be standing upright, not bending over.”[31]
[31] Reply p 7.
Dr Wilcox notes the results of the MRIs of the thoracolumbar spine, reported as showing some minimal degenerative changes affecting the discs at T7/8 and L2/3. He says that neither of these would be expected to be symptomatic as they are frequently seen in the general population of this age who have no back pain, neither are they compressing any of the adjacent tissues and in particular the nerve roots. Therefore, they should be disregarded as being a possible source of her protracted symptoms. Dr Wilcox then goes on to discuss research studies.
In his second report Dr Wilcox found that the applicant was demonstrating abnormal illness behaviour, having regard to his findings on examination, that could be classified as malingering. He says that:
“The overall impression gained is that Ms Cabrera-Roche, apart from being overweight and having some early manifestation of diabetes and thyroid disease, is a reasonably fit and healthy woman for her age. There is no medical reason why she should not go back all her usual daily activities including to return to work as a school cleaner. After this length of time, this would have to be done under a graduated return-to-work program.”[32]
[32] ALAD 28 November 2024 p 10.
I have found that the mechanism of injury is not as found by Dr Wilcox, and that the applicant experienced immediate pain in her back after the lifting incident on 16 September 2022. The doctor’s reports must be viewed against this finding, the acceptance by the respondent of injury to the back on 16 September 2022, and the finding of Dr Wilcox that the applicant suffered a minor injury only to her back. I do not find that Mrs Roche has recovered from the effects of the injury to her back on 16 September 2022. Nevertheless, the findings of
Dr Wilcox on the presentation to him on 29 October 2024 and her work capacity from the date from which compensation is claimed are relevant, and will be discussed hereunder.

Dr Sidrak’s clinical notes

These clinical notes have been considered in the context of the respondent’s submission that the opinion of Dr McKechnie as to causation of the applicant’s symptoms being consistent with the work related injury which occurred on 16 September 2022 is patently incorrect. It ignores previous referrals to Dr McKechnie, and has the fatal deficiency of being based on an incorrect history of prior problems with the low back as recently as 10 months before the current injury. This submission is made in respect of the opinion in Dr McKechnie’s report dated 10 March 2024 that:
“It is my opinion that Mrs Yubelkis Cabrera Roche’s signs and symptoms are consistent with the work related injury which occurred on 16^th pf September 2022 as it was described to me. The onset of pain related to this injury. There is no history of any pre-existing or pre-disposing illnesses or injuries to the spine. There is MRI confirmation of small disc protrusions.”
The respondent also submits that Dr Herald understates the extent of the applicant’s pre-injury condition, and attempts to delineate the nature and extent of the applicant’s pre-injury symptoms with her post-injury symptoms. The respondent submits Dr Herald’s acceptance that the applicant’s pre-injury symptoms were intermittent ignores the multitude of pre-injury consultations with Dr Sidrak. Dr Herald was not aware of previous flare ups in the applicant’s condition, or the previous referrals to Dr McKechnie.
Dr Herald in his report dated 23 January 2024 includes in his recording of past medical history:
“She has a complicated past medical history. She has a history of asthma and chronic allergies. She has had a workplace injury in around 2014 when she got an electric shock. She had a vacuum cleaner on her back at work and fell backwards. She says she injured her back and her right shoulder, but after a period of conservative treatment, she recovered. She had a second incident in 2018. On 2 October 2018, she was involved in a motor vehicle accident, which was not her fault. She had an injury to her neck, her right shoulder and her back, and this was treated with physiotherapy, and she was able to return to work. The back injury, although recovered, provided intermittent symptoms since then but she is adamant that although they are intermittent, they were manageable with conservative treatments such as physiotherapy. She was able to turn back to full duties and the back pain was not limiting her significantly enough to restrict her function. It was only after her most recent injury, 16 September 2022, that the back pain became constant, along with constant radiculopathic symptoms, causing insomnia and anxiety, as well as a permanent restriction in function.”
The respondent points to attendances recorded in the clinical notes of Dr Sidrak from
21 May 2019 to 20 September 2022 noted in [45] above. The entry of 16 November 2021 includes a referral to Dr McKechnie. The applicant counters this with the submission that from 16 November 2021 when the applicant was referred for physiotherapy, the applicant consulted Dr Sidrak on 13 separate occasions prior to 20 September 2022. When the clinical notes are examined, during those 13 visits there was not a single mention relevant to the question of back pain. These submissions are in accordance with my perusal of the clinical notes of Dr Sidrak, with the exception that I counted 19 visits that the applicant made to
Dr Sidrak, without mention of back pain, not 13.
The report of Dr McKechnie dated 10 March 2023 is addressed to the Unified Health Care Group, and the doctor’s note of no history of any pre-existing or pre-disposing illnesses or injuries to the spine is, on the face of it, inconsistent with a referral of the applicant to him on 16 November 2021. On the other hand, the clinical records of Dr McKechnie are not in evidence, only his reports to Dr Sidrak as a treating specialist, and the report to United Health Care Group.
The history of the previous workplace injury in 2014, and the motor vehicle accident in 2018 is included in the report of Dr Herald. There is no evidence, apart from the clinical notes of
Dr Sidrak, as to the nature of injury to the back on those occasions. Dr Herald records that, after the 2014 injury Mrs Roche says that she recovered after a period of conservative treatment, and that after the 2 October 2018 motor vehicle accident involving injury to the neck, right shoulder and back, she was treated with physiotherapy and able to return to work. The applicant said that the back injury, although recovered, provided intermittent symptoms manageable with physiotherapy.
Of relevance also is the fact that, between the dates referred to by the respondent in [45] above setting out the applicant’s attendances recorded in the clinical notes of Dr Sidrak, my perusal of such notes reveals very many other attendances on the doctor for various illnesses and conditions when there is no mention of back pain.
It is not in dispute that the applicant returned to full time employment following earlier injuries, and was continuing in that role as at the date of the subject back injury on
16 September 2022. That is consistent with the applicant’s submission that the applicant consulted Dr Sidrak on 13 [sic, 19] separate occasions from 16 November 2021 prior to
20 September 2022 with no reference to back pain.
In my view there is sufficient evidence to support a finding that the applicant was experiencing intermittent symptoms in the period leading up to the date of the subject accident on 16 September 2022, during which time she was working full time as a cleaner for the respondent, and that she did not complain to Dr Sidrak of problems with her back between 16 November 2021, and 20 September 2022, four or five days after the subject accident.
Notwithstanding the fact that Dr McKechnie does not refer to previous consultations with the applicant before 16 September 2022, I think that weight can be placed on the report of
Dr Herald when he says that Mrs Roche obviously had some pre-existing lumbar spondylosis, although it was manageable with occasional intermittent flare-ups treated with acupuncture and physiotherapy in the past. It was not until after her workplace injury on
16 September 2022 that the applicant had constant flare-ups and acceleration of her underlying lumbar spondylosis resulting in a permanent restriction in her function and chronic pain. This is confirmed by the frequent post injury consultations with Dr Sidrak recorded in his clinical notes.
I also note that Dr Herald in his supplementary report dated 23 January 2024 containing an assessment of 7% whole person impairment, did not make any deduction therefrom for pre-existing arthritis as she was symptom free from her lumbar spondylosis at the time of her work injury.[33] This is consistent with the absence of complaint of back problems to Dr Sidrak in the ten months prior to the work injury on 16 September 2022.
[33] ARD p 30.
I accept the applicant’s submission that a fundamental change occurred in the applicant’s condition with the injury to the lumbar spine on 16 September 2022. I find that the effects of that injury have not ceased.

Capacity

Dr Sidrak finds that the applicant is fit for suitable duties working two hours a day, three days a week, with a 5kg maximum lifting capacity limit, sitting and standing limitations, and no pushing or pulling, bending or twisting. Dr McKechnie, who last saw the applicant on
5 March 2024, found that she remained fit to continue with part time light duties such as two hours a day, three days a week with a restriction on any lifting over 5kg or repetitive bending.
Dr Herald finds that Mrs Roche is fit for suitable duties with the same restrictions placed on her by Dr Sidrak and Dr McKechnie, but no time restrictions. The applicant submits that the lack of time restriction on the suitable duties he recommends is not material. Dr Herald did not find abnormal illness behaviour as did Dr Wilcox, who examined her last on
29 October 2024 and reported thereon on 10 November 2024.
Dr Wilcox found in his first report dated 10 May 2023 that Mrs Roche was capable of returning to her full-time normal duties after a short-graduated upgrading programme. In his report dated 10 November 2024 Dr Wilcox notes that Mrs Roche appeared to have probably continued to do her full normal duties until about 10 November 2022, which was the first date of notification of injury. The applicant says at [4] in her statement dated 27 August 2024 that on 14 October 2023 her employment as a cleaner for the respondent ceased as light duties were no longer available to her at work. It does appear from the s 78 notice dated
7 September 2023 that she had been in receipt of weekly benefits for in excess of 12 weeks, ceasing on 28 September 2023.
It is not clear from this evidence exactly when Mrs Roche ceased any type of post injury work, be it light duties or otherwise, for the respondent.
I have some reservations as to how the applicant presented to Dr Wilcox on
29 October 2024. Dr Wilcox found subjective signs presented to him were very obvious but very contradictory. On pp 9-10 of the report dated 10 November 2024 Dr Wilcox lists eight dot points highlighting inconsistencies found on examination. I think that at least Mrs Roche was exaggerating her symptoms when presenting to Dr Wilcox, although I do not find that she was demonstrating abnormal illness /pain behaviour to the extent that it could be classified as malingering.
The applicant relies on what was said by Deputy President Roche in Dewar to submit that she has no current work capacity for suitable employment. Both Dr Sidrak and Dr McKechnie find that the applicant has such capacity, with significant restrictions. Similarly Dr Herald makes such a finding with no time restrictions on work.
In Dewar, Deputy President Roche said at [68] that before getting to ss 36 and 37 of the 1987 Act which provide the methodology for calculating the amount of weekly compensation payable, there must be a determination of whether the worker has a “current work capacity” or “no current work capacity”.
Section 32A of the 1987 Act provides a definition of “suitable employment”:
“‘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.”
At [59] of Dewar the Deputy President said:
“The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.”
At [60] the Deputy President said:
“Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise…”,

and that whether under the new provisions in s 32A, whether a worker would be found to have no current work capacity :

“… will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”

The nature of the applicant’s incapacity is set out in the medical evidence of Dr Sidrak,
Dr McKechnie and Dr Herald. Because of my finding that the effects of the back injury sustained by the applicant have not ceased, I do not accept the opinion of Dr Wilcox that
Mrs Roche is capable of returning to her full-time normal duties after a short-graduated upgrading programme.
The respondent submits that while the applicant’s pre-injury employment history was limited to working as a cleaner, her fluency in English did not create an impediment to securing employment with the respondent, and that it would not create an impediment to securing further employment for which she may apply.
The respondent submits that:
“…there’s reference to the applicant holding a licence and being able to drive and there would be work as a courier or a - an Uber driver. That would also provide the applicant the ability to sit and stand. Other forms of casual employment working potentially as a cashier or a general clerk would also constitute suitable employment squarely within the restrictions placed on the applicant by Dr Herald.”[34]
[34] Transcript (T) p 59.20.
The respondent concedes that:
“…the applicant’s ability in those roles may well not achieve 80 percent of her - her pre-injury average weekly earnings; however, it would be expected, Member, given Dr Herald’s opinion and using the expertise as a specialist tribunal that the applicant could expect to earn somewhere between four and $650 per week, in that range in suitable employment.”[35]
[35] T p 59.30.
There is sparse evidence of the period of time that the applicant worked for the respondent until 14 October 2023 performing the light duties to which she refers at [4] of her statement dated 27 August 2024. It is apparent from that statement that Mrs Roche was performing light duties for at least some period of time before she commenced to receive the weekly payments which were terminated as from 28 September 2023. That is at least some evidence of light duties being available from the respondent, not created as an artificial position to discharge its obligation to provide suitable work.
There is no evidence from the applicant as to what other positions she may have applied for other than what she says at [24] in her statement dated 27 August 2024 that:
“I continue to be unable to work more than 6 hours a week and have been unable to find another job due to my injury.”
Having regard to her skills and work experience, I do not think that casual employment as a cashier or general clerk would be suitable employment. There is no indication of the education level attained by Mrs Roche, but her age is such that it would not prevent her from seeking casual work as a driver of some sort, perhaps an Uber driver. She may also be able to explore opportunities for the light cleaning work she was performing for the respondent for some period at least following her injury on 16 September 2022.
Because of the reservations I have about the presentation of the applicant to Dr Wilcox on
29 October 2024, I do not find that her capacity to perform suitable duties should be restricted to six hour a week. Dr Herald does not place any time restriction on the period each week that that applicant could perform suitable duties, but is uncertain with those restrictions if she would be able to find any suitable employment.

The applicant has not provided anything other than unhelpful evidence as to what, if any, attempts she has made to pursue suitable employment.
Doing the best I can with the evidence available, I find that the applicant has a capacity for suitable employment within the restrictions provided by Dr Herald. I accept the respondent’s submissions that such employment could return income at the lower end of the scale of earnings put forward, that is $400 per week. This ability to earn in suitable employment is to be deducted from 80% of the agreed figure of the applicant’s PIAWE of $1,185.22 as at
[36] T pp 33.20 – 34.20.
29 September 2023, as indexed from 1 October 2023.[36]
The applicant will also be entitled to a general award for hospital, and medical and related expenses, pursuant to s 60 of the 1987 Act.

SUMMARY

The applicant sustained injury to her lumbar spine arising out of or in the course of her employment on 16 September 2022.
The effects of that injury have not ceased.
The applicant is able to earn $400 per week in suitable employment.
The applicant’s PIAWE as at 29 September 2023 were $1,185.22 as indexed. Eighty percent thereof is $948.18.
The respondent is to pay the applicant $548.18 per week as indexed from
29 September 2023 to date and continuing pursuant to s 37 of the 1987 Act.
The respondent is to pay the applicant’s hospital, and medical or related treatment expenses, pursuant s 60 of the 1987 Act.

[2024] NSWPIC 708

17 December 2024