Rodrigues v President Private Hospital Pty Ltd
[2021] NSWPIC 411
•14 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Rodrigues v President Private Hospital Pty Ltd [2021] NSWPIC 411 |
| APPLICANT: | Isabel Rodrigues |
| RESPONDENT: | President Private Hospital Pty Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 14 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments of compensation for injury to the lumbar spine; worker claims that leaning over a sink for extended periods of time caused injury to her lumbar spine; claim for injury to cervical spine based upon section 4 (b)(ii) of the Workers Compensation Act 1987 (1987 Act); reference to AV v AW; consideration of the extent of any incapacity due to injury to lumbar spine; Held – worker’s employment was main contributing factor to aggravation of degenerative disease in the lumbar spine; order for weekly payments of compensation for partial incapacity for 13 weeks pursuant to section 36 of 1987 Act; thereafter the worker was able to earn in suitable employment an amount in excess of 80% of her average weekly earnings. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury to her lumbar spine in the course of her employment with the respondent by way of a disease injury as provided for by section 4 (b)(ii) of the Workers Compensation Act 1987, with a deemed date of injury of 4 December 2020. 2. The applicant has had a partial incapacity for work from 1 April 2021 as a result of the injury to her lumbar spine. 3. The applicant’s pre-injury average weekly earnings are $863. 4. The applicant has been able to earn in suitable employment the following: (a) $674.88 per week from 1 April 2021 to 30 June 2021, and (b) $691.84 per week from 1 July 2021. |
| ORDERS MADE: | 1. The respondent is to pay the applicant weekly payments of compensation at the rate of $144.97 per week from 1 April 2021 to 30 June 2021 pursuant to section 36 (2) of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Isabel Rodrigues, claims that she sustained an injury to her lumbar spine while employed as a sterilising technician for the respondent, President Private Hospital Pty Ltd.
The applicant claims that this injury was caused by standing and leaning over a sink to clean equipment for several hours each shift. The applicant’s last day of work with the respondent was 4 December 2020.
The applicant also claims that she sustained a psychological injury as a result of bullying and harassment in the workplace, but that alleged injury is not part of this dispute.
The applicant claims weekly payments of compensation from 1 April 2021 as a result of a partial incapacity for work due to the injury to her lumbar spine. The representatives of the respondent were not able to confirm at the hearing whether weekly payments of compensation that were made to the applicant between December 2020 and 31 March 2021 were for the applicant’s psychological injury or the injury to her lumbar spine.
The respondent disputes that the applicant sustained an injury to her lumbar spine in the course of her employment with the respondent and disputes the extent of any partial incapacity claimed by the applicant as a result of this injury.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to her lumbar spine in the course of her employment with the respondent (section 4 of the 1987 Act), and
(b) whether the applicant has been partially incapacitated for work as a result of an injury sustained to her lumbar spine since 1 April 2021 (sections 32A, 33, 36 and 37 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 30 September 2021. 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.
Mr Carney appeared for the applicant, instructed by Mr Kambas. Mr Doak appeared for the respondent, instructed by Ms Tancred.
The hearing was conducted by telephone in accordance with protocols set by the Commission as a result of the coronavirus pandemic.
The parties were not able to reach an agreement on the applicant’s pre-injury average weekly earnings (PIAWE) at the hearing conducted on 30 September 2021, and a direction was made that both parties file and serve a wages schedule by 8 October 2021 which attached or referred to all documents necessary to calculate the applicant’s PIAWE.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents,and
(c) Wages schedule and submissions filed by the applicant on 5 October 2021.
Oral evidence
There was no application to adduce oral evidence or to cross examine the applicant.
The applicant’s evidence
The applicant has provided a statement dated 23 February 2021.
The applicant states that she had a previous problem with her back while working in a public hospital, but that problem eventually cleared up.
The applicant states that she commenced employment as a sterilising technician with the respondent in August 2010. She states that she was physically fit for work when she commenced her employment with the respondent.
The applicant states that a month into her employment she was thrown into the job of supervisor and undertook the supervisory work in the sterilisation department until 2017.
The applicant states that staff in this department never lasted a long time. She states that by early 2020 she had no one to help her in the department. She states that there were occasions a worker from an agency would be brought in to assist her, but those workers did not know all that was required for the role. The applicant states: “I was doing a two person critical job all by myself”.
The applicant states that during 2020 she was working from Monday to Thursday, doing 32 hours of work per week. She states that the job did not involve heavy lifting, but it did involve bending and twisting, and standing for long periods at a sink to do the washing of surgical instruments. She states that the sink was very low, so that she was required to lean over it.
The applicant states that by November 2020 she was struggling with her back and was having chiropractic treatment. She states that she did not say anything about this at work because she did not want to risk losing her job. She also states: “Last year was like the year from hell and if you complained that your back was hurting no one would listen”.
The applicant states that on a day in November 2020 she was called to a meeting with the theatre manager, Ben Targett and a manager, Lyn Davis. She states that she was asked to do more hours of work and she responded by showing them an elastic back support she was wearing. She states that she told them she had been wearing the support because she had been in so much pain for the past week. She states that she asked if it was possible to do 28 hours of per week.
The applicant states that a manager, David Wenkart, was then called to this meeting and he told the applicant: “if the hospital needs you, you are expected to do as many hours that you are required to do”.
The applicant states that on 2 December 2021 she was called to a further meeting with
Ms Davis and was told she was being moved to a new role of ‘therapeutic aide’, which involved moving patients around the hospital in wheelchairs. The applicant states that she was unsure if this new role would be too demanding on her back and sought advice from her chiropractor. She states that she sent an email to Ms Davis on the night of 3 December 2020 in which she politely declined the offer of the new role and asked to remain in the sterilising department.The applicant states that the next day she attended a meeting with Mr Wenkart and
Ms Davis, and with the applicant’s son as a support person. She states that Mr Wenkart and Ms Davis were not friendly or sympathetic towards her, and offered her no alternative to the therapeutic role. The applicant denies an accusation made by both Mr Wenkart and
Ms Davis that she swore during this meeting. She states that the meeting was then called off by Mr Wenkart.The applicant states that she finished her shift that day, which was a Friday. She states that over the weekend she was depressed and could not sleep. She chose not to attend an appointment arranged by the respondent with Dr Rimmer on 7 December 2020 for an assessment of her lower back condition.
The applicant states that she did not return to work after 4 December 2020 and her employment with the respondent was terminated on 17 December 2020. The grounds for the termination of employment were set out in a letter dated 17 December 2020, being that she failed to attend the medical appointment arranged by the respondent on 7 December 2020, there was a breach of the Code of Conduct at the meeting on 4 December 2020, and that she failed to attend a Show Cause meeting arranged on 16 December 2020.
There is a letter from the applicant to Mr Wenkart dated 9 December 2020 which is in evidence which includes the following:
“Since the end of February 2020 PPH has not supported me by providing:
a. Enough staff to relieve me of my prolonged hours at the Endoscopy sink
b. A sink that is at a safe working height as many staff before me have also complained of the exact same sink.”
Lay evidence relied upon by the respondent
Lynn Davis has provided a statement dated 18 March 2021. Ms Davis states that she was appointed as Director of Nursing by the respondent in October 2020 and was not familiar with the hospital before then. She states that she was asked to do some reorganisation and identify what some of the challenges and issues were within the hospital.
Ms Davis states that she was informed by the applicant while they were in the tearoom on a day in October or November 2020 that the applicant had been consulting a chiropractor for pain in her back. She states that she informed Mr Wenkart of this and Mr Wenkart made arrangements for the applicant to be assessed by an orthopaedic surgeon in early December 2020.
Ms Davis states that the applicant was advised that if her job as a sterilisation technician was causing her a problem, then she could no longer do that position, and an alternative position of therapeutic aide was made available for her.
Ms Davis states that she does not agree that the applicant did not have regular breaks because she knows that the applicant’s manager, Ben Targett, would relieve her.
Ms Davis states that the applicant had advised of a previous back injury and that Ms Davis believes the applicant had aggravated that injury.
David Wenkart has provided a statement dated 18 March 2021. Mr Wenkart states that he is Executive Director and Deputy Chief Executive for Macquarie Health Corporation, which owns President Private Hospital Pty Ltd.
Mr Wenkart states that he was unaware of the applicant having any pre-existing back injury and that when she first mentioned a chronic back issue, the applicant explained it was longstanding.
Mr Wenkart states:
“On the basis that she had stated that her back injury was chronic, and had been seeking treatment for an extended period of time, and that she had not sought a medical opinion, I formed a view that the injury was not a result of an incident in the workplace.”
Mr Wenkart states that the applicant would have been having regular breaks. He states that the only time that the applicant raised the sink height issue was at the end of 2020 when the applicant was subject to performance management.
Mr Wenkart confirms that the applicant’s employment with the respondent was terminated on 17 December 2020.
The medical evidence
Angela Hennessy, chiropractor, has written a letter dated 1 December 2020 which states:
“Mrs Rodrigues is currently receiving treatment for spinal complaints in her lumbar and thoracic spine. I have recommended she maintain her current work duties performed and hours worked, without any increase in either of these i.e. duties/hours, whilst receiving treatment.”
The applicant’s general practitioner, Dr Papapetros, has written a letter dated 11 December 2020 stating that for the past four days the applicant had been seen by Dr Papapetros for severe distress secondary to a workplace issue, and that the applicant was also seeing a chiropractor for right buttock pain.
Dr Papapetros has provided a handwritten report dated 17 February 2021. He writes that the applicant resigned her job at St George Hospital because of back pain, but that she declared her past injury when she applied for a job at President Private Hospital. He writes that the applicant was working a four day week with the respondent and “was managing well”.
Dr Papapetros states that in March 2020 the applicant’s assistant at work resigned and her back pain was aggravated.Dr Papapetros has also completed a hand written questionnaire form for EML on 17 February 2021 and writes that the applicant “was managing well until one of the assistance left the job and she increased her duties at work”.
Dr Bodel, orthopaedic surgeon, has provided a report at the request of the applicant’s solicitors dated 8 June 2021.
Dr Bodel records that the applicant initially worked full time, and then reduced her workload to 32 hours per week, but that “the work was always quite physical work”.
Dr Bodel records that the applicant began to develop pain in her lower back at work from February 2020. He records that on a particular day there was one person short in the sterilisation department and the applicant had a very heavy workload, which included repeatedly bending over the sink to clean equipment, when she felt her back pain worsen.
Dr Bodel records that the applicant would have flare ups of lower back pain throughout 2020 after a long shift at work.
Dr Bodel records that the applicant had a previous injury to her back in 2010 while working at St George Hospital, but that she was able to return to the same type of work with the respondent.
Dr Bodel diagnoses the applicant as having mechanical backache associated with minor disc pathology at the lumbosacral junction. He opines that the nature and conditions of the applicant’s work with the respondent has caused the injury and is the substantial contributing factor to the injury to her lower back.
Dr Bodel opines that the previous injury in 2010 is of no relevance to her current disability because she recovered and was able to go back to work. He states that her back injury in 2020 is the cause of her current complaints. Dr Bodel writes:
“There is no significant pre-existing medical condition apart from her lymphoma, which is in remission, but that is not contributing to the overall level of problems with her back.”
Dr Hyde Page, orthopaedic surgeon, has provided a report at the request of EML dated 13 April 2021.
Dr Hyde Page records that the applicant started to develop pain and stiffness in her thoracolumbar spine and neck in about February 2020 due to increasing work activity due to the lack of assistance provided to her. He records that the applicant was spending hours at a time bending over a sink to do cleaning work, and that the applicant’s lower back pain slowly increased throughout 2020.
Dr Hyde Page records that the applicant’s neck and thoracic spine pain had improved, but not her lower back pain. He is also aware of the previous injury the applicant sustained to her lower back while working at St George Hospital in 2010.
Dr Hyde Page opines that it would appear that the applicant has aggravated her pre-existing back complaint which was first injured at St George Hospital in 2010. He writes:
“This pre-existent back condition has been aggravated by the constant work in sterilising at President Private Hospital particularly with constantly leaning over a wash basin doing cleaning.”
Dr Hyde Page also opines:
“I do not consider that her employment at President Private Hospital is the main contributing factor to her present back condition and instead it is due to her pre-existent injury and condition. She has not suffered an injury to her lower back working at President Private Hospital but the constant work activities aggravated this pre-existent condition.”
FINDINGS AND REASONS
Whether the applicant sustained an injury to her lumbar spine in the course of her employment with the respondent
Mr Carney for the applicant submits that the applicant’s evidence and the medical evidence support a finding that the applicant sustained a disease injury as provided for by section 4 (b)(ii) of the 1987 Act, namely that the work undertaken by the applicant, in particular bending over a sink to clean equipment, was the main contributing factor to the aggravation of a pre-existing lower back condition.
Mr Doak for the respondent submits that the applicant only complained that she had a lower back injury that had been caused by her employment when conflict arose with her managers regarding her work duties.
Mr Doak submits that there are no contemporaneous records from the applicant’s general practitioner regarding complaints of lower back pain during 2020, despite the applicant stating that “last year was like the year from hell”. Mr Doak also refers to there being no reference to the applicant’s lower back pain being related to her employment in the letter from Ms Hennessy dated 1 December 2020.
Mr Doak submits that this evidence would not allow me to be satisfied that the applicant did sustain an injury to her lower back in the course of her employment with the respondent.
This is not a dispute where there are no contemporaneous records at all of symptoms affecting a particular part of the body and a worker then attempting to explain that lack of evidence. The applicant was having treatment from a chiropractor in late 2020 for lower back pain. Ms Davis states that she was informed by the applicant on a day in October or November 2020 that the applicant had been consulting a chiropractor for pain in her back, and as a consequence of learning of this, arrangements were made by the respondent for the applicant to be assessed by an orthopaedic surgeon. Ms Davis does not dispute the applicant’s evidence that the applicant showed her and Mr Targett an elastic back support that the applicant was wearing at a meeting in November 2020.
The issue is whether the symptoms complained of by the applicant by late 2020 in her lower back were caused by the work she was undertaking for the respondent, so that she can satisfy the requirements of section 4 of the 1987 Act.
Section 4 of the 1987 relevantly provides:
“In this Act:
Injury:
(a)means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i)A disease that is contracted by a worker in the course of employment but only if the employment is the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
The conclusions made by Dr Bodel that the nature and conditions of the applicant’s employment were the cause of her injury, that the prior injury in 2010 was not contributing to her current complaints, and that the applicant had no pre-existing medical condition apart from lymphoma, seem to fit the definition of ‘disease injury’ in section 4 (b)(i) of the 1987 Act, being the contraction of a disease by a gradual process.
The opinion of Dr Hyde Page that the applicant’s “pre-existent back condition has been aggravated by the constant work in sterilising at President Private Hospital” allows for injury to be found pursuant to section 4 (b)(ii) of 1987 Act, although Dr Hyde Page does not state that the applicant’s employment was the main contributing factor to the aggravation of that pre-existing condition, and specifically states that he does not consider that the applicant’s employment with the respondent was the main contributing factor to her present back condition.
There are significant deficiencies in the opinion provided by Dr Bodel on the cause of the applicant’s lower back symptoms. Although Dr Bodel concludes that the nature and conditions of the applicant’s employment were the cause of her injury, there are no details recorded by Dr Bodel of those “nature and conditions”, other than to record that the applicant’s work “was always quite physical work”.
Furthermore, Dr Bodel records the onset of symptoms in the lower back on a day in February 2020 when the sterilisation department was short of staff and the applicant had to repeatedly bend over the sink to clean equipment. That suggests the onset of symptoms by way of a frank incident, although Dr Bodel also records the applicant having flare ups of pain throughout the year when she would do a long shift. I was not able to locate details of an onset of lower back symptoms on a day in February 2020 in the evidence provided by the applicant.
Dr Bodel also does not review any radiology of the applicant’s lower back, and concedes that he cannot determine the applicant’s exact pathology.
In my view, the failure by Dr Bodel to record details of the work duties which the applicant claims to have caused her symptoms, and the failure to consider radiological findings, means that the opinion provided by Dr Bodel, at least on the issue of causation, has not been made in a fair climate and cannot be relied upon.
In contrast, Dr Hyde Page records details of the onset of symptoms which are consistent with the applicant’s own evidence, and he specifically identifies the applicant having to constantly lean over a wash basin to undertake cleaning work as being a cause of the aggravation of a pre-existing lower back condition. Dr Hyde Page also reviews some radiological reports, which refer to degenerative changes in the lumbar spine.
The applicant’s evidence in regard to her work duties, in particular having to lean over a sink for extended periods of time, is not challenged in any significant way by the lay evidence relied upon by the respondent.
Ms Davis states that she was only appointed to be Director of Nursing in October 2020, and was not familiar with the hospital before then. Ms Davis would therefore have not had any opportunity to observe the applicant undertaking her work duties during 2020.
Mr Wenkart states that the applicant would have been having been regular breaks, but this can be no more than supposition of his part. Mr Wenkart does not provide any evidence of actually observing the applicant at work on a regular basis during the course of 2020.
No evidence has been provided by Ben Targett, who is likely to have been able to provide some details of the work being undertaken by the applicant during 2020.
I therefore accept that the applicant was required to lean over a sink for extended periods to clean equipment and that while doing this activity she experienced a gradual increase of symptoms in her lower back.
This description of the onset of symptoms is confirmed not only by Dr Hyde Page, but also by Dr Papapetros, who records that the applicant was managing well in her job until a co-worker left and the applicant had to increase her duties and her back pain was aggravated.
Dr Hyde Page opines that the applicant’s employment is not the main contributing factor to her present back condition. However that opinion does not address the test set by section
4 (b)(ii) of the 1987 Act, which is whether employment is the main contributing factor to the aggravation of a disease.DP Snell provided a very helpful summary of the application of section 4 (b)(ii) of the 1987 Act in AV v AW [2020] NSWWCCPD 9 (AV v AW), and said at [77-78]:
“77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
·(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
·(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
·(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
That the applicant did not seek treatment from her general practitioner for her lower back pain during the course of 2020, and that her chiropractor did not record the applicant’s lower back pain as being related to her work, does not mean that the applicant’s lower back pain was not causally related to her work. As DP Snell emphasised in AV v AW, the satisfaction of the test for section 4 (b)(ii) to apply is to be considered on the whole of the evidence.
I have accepted the applicant’s evidence that she experienced a gradual increase in lower back pain during the course of 2020 when she was required to lean over a sink for extended periods of time. Dr Papapetros has recorded the applicant managing well at work until March 2020 when a co-worker left and there was an increase in workload, which led to an aggravation of back pain. Having taken a history consistent with the applicant’s own evidence, Dr Hyde Page opines that the applicant’s pre-existing back condition was aggravated by her work, particularly having to lean over a wash basin to doing cleaning work.
Notwithstanding Dr Hyde Page’s opinion that he does not consider the applicant’s employment with the respondent to be the main contributing factor to her present back condition, his report does support a finding, in the absence of any non-work related factors, that the applicant’s employment is the main contributing factor to the aggravation of her
pre-existing lower back condition.I am satisfied from the applicant’s own evidence, the material from Dr Papapetros, and the report provided by Dr Hyde Page, that the applicant’s employment with the respondent was the main contributing factor to the aggravation of the degenerative disease in her lumbar spine.
The claim for weekly payments of compensation
The ARD claims weekly payments of compensation from 1 April 2021 onwards.
The applicant received weekly payments up to 31 March 2021, although the representatives of the respondent were not able to confirm at the hearing whether those weekly payments were made for the applicant’s psychological injury or the injury to her lumbar spine.
Given that Certificates of Capacity were issued by Dr Papapetros from 7 December 2020 to 10 April 2021 for the applicant’s psychological injury, and the first Certificate of Capacity for the lower back injury is not issued until 9 February 2021, it is likely, in the absence of any further assistance from the respondent, that the weekly payments that were made to the applicant were for her psychological injury.
Dr Youssef, who appears to practice from the same medical centre as Dr Papapetros, issued Certificates of Capacity on 9 February 2021, 9 March 2021, and 13 April 2021 which certified the applicant as being able to do 32 hours of work per week, with a lifting and carrying capacity of 2 to 5 kg, sitting tolerance up to 30 minutes, standing tolerance up to 20 minutes, the avoidance of repetitive movements, and driving as normal up to 30 minutes.
Dr Bodel opines that the applicant’s back complaint and psychological condition will prohibit her returning to her pre-injury role. He considers that it is unlikely that the applicant will return to work given that she now 64 years old. Dr Bodel opines:
“Her prospects of returning to her pre-injury work are very poor therefore, for work for which she has appropriate levels of education, physical fitness and training.”
When Dr Hyde Page examines the applicant in April 2021, he considers that she could continue to work as a sterilising technician at 32 hours per week. He opines that four months of being away from the constant bending and lifting at work had allowed the aggravation to the pre-existing degenerative condition to settle, and that the aggravation had now ceased.
Dr Hyde Page records a basically normal examination of the lumbar spine, except for the indication made by the applicant of some right lower lumbar pain and discomfort.
Although Dr Hyde Page considers that the aggravation to the applicant’s lower back condition had ceased by April 2021, that is based on an assumption that four months away from work would have brought the aggravating effects of the injury to an end. However, when Dr Bodel examined the applicant in June 2021, he found the applicant to have tenderness at the lumbosacral junction and increasing back and left buttock pain.
There is no report from Dr Papapetros after February 2021, and no clinical notes from
Dr Papapetros and Dr Youssef, but a Certificate of Capacity was issued on 13 April 2021 which continued to place restrictions on the applicant’s work capacity due to her lower back injury.There is no evidence provided by the applicant as to what problems she has continued to have with her lower back since her statement dated 15 April 2021.
Mr Doak submits that the complaints of pain recorded by Dr Hyde Page and Dr Bodel are subjective findings and there is, in any event, inconsistencies in the findings made on examination between the two experts. Mr Doak also refers to the record made by Dr Bodel that the applicant’s back pain had improved. He submits that even if it were accepted that the applicant’s employment had caused some injury to the lower back, those records made by
Dr Hyde Page and Dr Bodel would support a finding that the effects of any aggravation caused by the applicant’s employment had ceased within several months of her ceasing work.
The opinion from Dr Hyde Page that the aggravation to the applicant’s lower back condition would have ceased by April 2021 is based upon an assumption that this would have occurred. I prefer the findings on examination that were made by Dr Bodel and
Dr Hyde Page, and also that Dr Youssef continued to provide Certificates of Capacity with some restrictions on the applicant’s work capacity until mid-May 2021, to find that the applicant has continued to suffer the effects of the injury to her lower back which she sustained in the course of her employment with the respondent.Mr Doak submits that the applicant has not suffered any incapacity due to her lower back condition because she was continuing to work 32 hours per week in her position as a sterilisation technician up until the time she ceased work due to a separate psychological injury. There is support for this submission in the letter from Ms Hennessy dated 1 December 2020, which recommended the applicant maintain her current hours and duties. Ms Davis confirms that she received that letter.
However, I have accepted that the applicant experienced a gradual increase in her lower back pain during the course of 2020. It is consistent with that accepted evidence that the applicant would have made a request for a reduction of four hours of work per week when she met with Ms Davis in November 2020. Ms Davis does not provide evidence to the contrary.
While the applicant was still doing her usual hours and duties at the time she ceased work in December 2020, it is apparent from the evidence which I have accepted that the applicant was struggling to keep doing that. I accept that the applicant had reached a stage by early 2021 where she could not do all of her duties as a sterilisation technician for 32 hours a week because of ongoing pain in her lower back.
Nonetheless, the Certificates of Capacity issued by Dr Youssef from 9 February 2021 to 10 April 2021 certified the applicant as still being able to work for 32 hours of work per week, but with some restrictions. From my review of the evidence, there are jobs which the applicant could perform within those restrictions and for 32 hours per week.
The work involved in menial clerical or administrative tasks in an office would fit with in those restrictions. Basic or menial clerical or administrative work, which includes duties such as receptionist duties, mail duties, photocopying, and maintenance of records, are within the lifting limits imposed by Dr Youssef and would allow the applicant to change her posture from time to time to relieve any ongoing pain in her lower back.
A review of the evidence indicates that the applicant has the ability to perform such work. The applicant states that there was paperwork required when she worked as a supervisor.
I find it reasonable to infer that there was a level of responsibility attached to that paperwork because the applicant states that the paperwork was required to ensure all maintenance was up to date on the machines.It is also reasonable to infer that the applicant has at least basic administration skills because she states that she worked as the supervisor of the sterilisation department from 2010 to 2017 and states that this was a very important role. The applicant states that in regard to the equipment that was required by the doctors: “I made sure at the end of each day, I had everything that was needed for the following day”. From her work experience and evidence, it is apparent that the applicant can prioritise and organise tasks in a work environment.
It is arguable that the applicant’s organisational skills would place her at the Level 2 classification under the Clerks – Private Sector Award 2020, where an employee may be required to exercise limited judgment and initiative within the range of their skills and knowledge. However, as there is no evidence of the applicant working in an office environment, it is more appropriate to conclude that the applicant is able to meet the duties of a Level 1 classification under the Clerks – Private Sector Award 2020, which I already detailed.
The hourly rate for a Level 1 employee under the Clerks – Private Sector Award 2020 as at
1 April 2021 was $21.09 per hour, which amounts to $674.88 for a 32 hour week. The hourly rate from 1 July 2021 is $21.62 per hour, which amounts to $691.84.I therefore find that the applicant has been able to earn the following in suitable employment:
(a) $674.88 per week from 1 April 2021 to 30 June 2021 and,
(b) $691.84 per week from 1 July 2021.
I should add that Mr Carney made a submission that light retail work was also suitable employment for the applicant. However, the minimum hourly rate of $22.33 per hour as at
1 April 2021 under the General Retail Industry Award 2020 was a higher rate than that provided for a under the Level 1 employee under the Clerks – Private Sector Award 2020.The applicant filed a wages schedule, and also some submissions, in accordance with the direction I made at the conclusion of the hearing on 30 September 2021 when there was still no agreement between the parties on PIAWE. The applicant claims her PIAWE to be $863.
The respondent’s solicitors have advised that they have been unable to obtain documents from their client and agree to the PIAWE figure proposed by the applicant.
Ninety five per cent of PIAWE amounts to $819.85. Eighty per cent of PIAWE amounts to $690.40.
There will therefore be an award of weekly payments of compensation to the applicant at the rate of $144.97 per week from 1 April 2021 to 30 June 2021 pursuant to section 36 (2) of the 1987 Act, being the difference between 95% of PIAWE and what I have found the applicant is able to earn in suitable employment.
Thereafter, the applicant is able to earn in suitable employment a weekly amount that is in excess of 80% of PIAWE, and accordingly no further award of weekly compensation is to be made to the applicant.
The applicant’s solicitors asked in their submissions filed on 5 October 2021 that the applicant be paid a higher amount for the weekly payments of compensation that were paid to her from December 2020 to 31 March 2021 for her psychological injury. However, the applicant’s psychological injury claim was not part of this dispute, and the applicant should take that issue up directly with the respondent or its insurer.
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