Rush v Our Lady of Consolation Aged Care & Services Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rush v Our Lady of Consolation Aged Care & Services Ltd [2025] NSWPIC 414
APPLICANT:	Sharon Rush
RESPONDENT:	Our Lady of Consolation Aged Care & Services Limited
MEMBER:	Josephine Bamber
DATE OF DECISION:	18 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether applicant had sustained a consequential condition in her left arm and shoulder as a result of her agreed right shoulder injury; whether applicant had no current capacity for work or capacity for suitable work; whether applicant has satisfied the requirements of section 38; Held – award for the respondent as applicant had not discharged her onus of proof; applicant has no current capacity to work in period claimed under section 37; Wollongong Nursing Home Pty Ltd v Dewar applied; the applicant has an entitlement to compensation pursuant to sections 38 (1), 38(2), and 38(6).
DETERMINATIONS MADE:	The Commission determines: 1. Award for the respondent in relation to the allegation of consequential condition to the applicant’s left shoulder and arm arising from the agreed injury to her right shoulder with deemed date of injury of 20 June 2022. 2. The applicant has no current work capacity in the period from 28 October 2024. 3. The respondent is to pay the applicant weekly compensation under s 37(1) of the Workers Compensation Act 1987 from 28 October 2024 to 18 December 2024 at 80% of the applicant’s pre-injury average weekly earnings, as indexed. 4. The respondent is to pay the applicant weekly compensation from 19 December 2024 to date and continuing pursuant to s 38(1), s 38(2) and s 38(6) of the Workers Compensation Act 1987 at the rate of 80% of the applicant’s pre-injury average weekly earnings, as indexed. 5. The respondent is to have credit for workers compensation payments made in the period from 28 October 2024. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Sharon Rush, the applicant, was employed by the respondent, Our Lady of Consolation Aged Care & Services Limited as a cook from about 2000. She alleges due to the nature and conditions of her employment she noticed a gradual onset of symptoms in her right shoulder. She relies on a deemed date of injury of 20 June 2022. She further alleges during the rehabilitation phase she developed a consequential condition to her left arm and shoulder from overuse and overcompensating whilst favouring her left arm and shoulder because of the right shoulder injury.
The applicant claims weekly compensation as a result of these injuries from 28 October 2024 under s 37 of the Workers Compensation Act 1987 (the 1987 Act) and from
[1] T5.10.
19 December 2024 under s 38 of the 1987 Act. However, the applicant has received some weekly compensation benefits up to 13 April 2025 (totalling 145 weeks) but the reason her claim starts earlier is because the insurer reduced her payments from 28 October 2024. The applicant concedes that the respondent will be entitled to credit for the payments it has made if she is successful in her claim that she has a higher entitlement to weekly compensation than those payments made to her.[1]
The applicant is presently 66 years of age, so she has not yet reached the retirement age and therefore, s 52 of the 1987 Act is not relevant.
The respondent disputes that the applicant sustained a consequential condition to her left arm and shoulder, and it also disputes its liability to make weekly compensation payments including under s 38 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter proceeded in arbitration hearing on 23 June 2025. Mr Morgan, counsel, instructed by Mr Kardum, solicitor, appeared for the applicant, who attended together with her daughter. Mr Coombes, counsel, instructed by Mr Van der Hout, solicitor, and Anna from the insurer, EML, appeared for the respondent.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Lodge Additional Documents dated 19 May 2025 filed by the respondent, and
(d)    Application to Lodge Additional Documents dated 16 June 2025 filed by the respondent.

Oral evidence

There was no oral evidence. Both counsel made oral submissions which were sound recorded. A written transcript (T) has been made from the recording.

FINDINGS AND REASONS

As the submissions have been recorded, I will not reproduce them verbatim in these reasons, but I will refer to the main thrust of each party’s submissions, when relevant.

Left shoulder and arm

In order to consider whether the applicant did sustain a consequential condition in her left shoulder and arm it is necessary to consider the nature of her right shoulder injury.
In her statement the applicant describes her duties, working up to 36 hours per week. She states,
“My work required the frequent and repetitive lifting of pots and cooking equipment, stretching and reaching out my arms in awkward positions and different angles, bending, squatting and crouching movements with prolonged walking and standing tasks. Additionally, I was required to push, pull and turn heavy trolleys which weighed as per my understanding between 15 and 20 kilograms to distribute food and catering amongst residents in the complex.”
She describes the development of her right shoulder injury and treatment untaken including on 30 November 2022 she underwent a right capsular and bicep tendonitis surgery by
Dr Moopanar. At [19] of her statement she says while she was undertaking rehabilitation for her right shoulder injury, she began to develop pain and discomfort in her left shoulder and left arm due to overuse and overreliance as a consequence of her right shoulder injury. At [31] she refers to the post-surgery period as a time when she had to overuse her left arm and shoulder when performing domestic tasks at home.
On 24 June 2022 an ultrasound of the right shoulder revealed subacromial bursitis.[2] For which an injection was given on 29 June 2022 and an MRI on 1 August 2022 found adhesive capsulitis.[3]
[2] ARD p 154.
[3] ARD p 156.
There are only two reports available from her treating orthopaedic surgeon, Dr Moopanar, dated 27 October 2022 and 21 December 2022,[4] neither refer to the left shoulder.
[4] ARD pp63-65.
Throughout 2023 and 2024 the clinical notes of the applicant’s general practitioner,
Dr Moussad, refer to right shoulder pain on and off and, at times improving, and the need for physiotherapy.
The physiotherapy reports issued by Active West Physiotherapy, Igor Kraljin, dated
[5] ARD p 67.
[6] ARD p 66.
[7] ARD p 164.
[8] ARD p 166.
23 September 2022,[5] 29 March 2023[6] and 12 April 2023[7] detail the treatment for, and restrictions with, the right shoulder such as prolonged upper limb use and lifting greater than 3kg causes discomfort.[8] No mention is made of the left shoulder in these reports.
An undated report from Active Plus Physiotherapy refers to a conversation with the applicant in which she mentions that she had some pain in her left shoulder and the author, “Matthew”, stated that this could be a consequence to the ongoing favouring of the left shoulder.[9] The conversation must have been after her initial assessment by this physiotherapist on
[9] ARD p 69.
[10] ARD p 160.
[11] ARD p 161.
30 May 2023. He says he was seeing her twice weekly, but the report is not dated so I cannot tell when this conversation took place. Matthew said he would continue to monitor the left shoulder and if anything changes, he would keep the recipient of the report informed. The report is only addressed to “Carolyn”. There are three other reports from this physiotherapist all undated, but someone has written dates on the “RT 13.07.2024”,[10] “RT 25.07.2024”[11] and a partially obscured date which appears to be “19.12.2024”. None of these reports refer to the left shoulder.
Dr Shahzad, occupational physician, issued an injury management consultant report to the insurer dated 21 June 2023.[12] He notes the applicant returned to work on 4 February 2023 for three hours per day, two days per week. The applicant told the doctor that she was unable to lift her right arm, has difficulty working and is unable to lift anything including a water kettle. The doctor noted that she was progressing gradually but has stiffness, pain and numbness in the right arm. He anticipated it would take 12 months for her to recover from the right adhesive capsulitis. He says it is likely she would continue to struggle with usual activities of daily living. Dr Shahzad does not refer to her left shoulder.
[12] Reply p 49.
In the entry on 20 August 2024[13] Dr Moussad records that the applicant has “left shoulder pain. overuse pain.” But the SIRA certificate of capacity issued the same day only refers to the right shoulder.[14] It certifies her as having capacity to work four hours per day, three days per week. In the clinical notes entry for 5 September 2024 Dr Moussad makes the same comment about the left shoulder. On 12 September 2024 the doctor refers to a hospital admission for a left humerus fracture and it is noted “in a sling”. On 17 September 2024
[13] ARD p 136.
[14] ARD p 170.
[15] ARD p 141.
[16] ARD pp 142 and 143.
[17] ARD pp174 and 177.
Dr Moussad records “left arm pain, bruising, in a triangular sling” and she was to be reviewed in the fracture clinic the next day. She was prescribed Endone. Right shoulder pain was also recorded. The next available record is on 5 November 2024 which only refers to right shoulder pain, good range of motion and improving with physiotherapy.[15] On 3 December 2024 and 14 January 2025 Dr Moussad records exacerbation of right shoulder pain, good range of motion.[16] The SIRA certificates for 3 December 2024 and 14 January 2025 certifies the applicant having capacity to work four hours per day, three days per week with various physical restrictions.[17]
On 28 and 29 January 2025 and 11 and 25 February 2025 Dr Moussad records right shoulder pain and restricted ROM and insomnia.[18] At all these consultations the doctor prescribed treatment with analgesics and physiotherapy.
[18] ARD pp 144 to 147.
Dr Porteous, occupational physician, provided a medico-legal report for the applicant dated 26 February 2025.[19] He took the history that the surgery performed by Dr Moopanar did not really make her symptoms any better. The applicant informed Dr Porteous she had been favouring her right arm and she subsequently developed left shoulder pain. She was off work for about a year and then went back to work on restricted duties in the laundry doing 30 hours per week for about a year and then the respondent said she could resign or be terminated and so she last worked on 20 August 2024.
[19] ARD p 39.
Dr Porteous noted she was right hand dominant, and she reported ongoing chronic right shoulder pain and marked restriction with the pain, which shoots into her arm. Dr Porteous diagnosed that she had aggravated an underlying age-related degenerative change in her right shoulder with the subsequent development of adhesive capsulitis. He also opines that it is likely she aggravated underlying degenerative change in the left shoulder while favouring the right shoulder. He found a subtle reduced restriction in the left shoulder.
The SIRA certificate of capacity dated 11 February 2025 only refers to the right shoulder, lists various restrictions and certifies her having no current capacity for any work to
[20] ARD p 167.
11 March 2025.[20]
Dr Rimmer, orthopaedic surgeon, provided a medico-legal report for the respondent dated
[21] Reply p 57.
29 April 2025.[21] Dr Rimmer sets out very brief details in each part of his report. He states with regard to her left shoulder there is no injury/ diagnosis. But earlier in his report he does not make it clear if he examined her left shoulder as he only sets out one set of active range of motion figures, presumably for the right shoulder. He does add the right and left upper limbs “tone, power, sensation and reflexes all present and symmetrical”. Under current symptoms he only refers to the right shoulder and it is not clear if he asked the applicant about her left shoulder. In answer to question (e) he says with regards to her left shoulder she categorically denied ever injuring it either acutely or consequentially. However, it is not clear to the reader of his report how he asked the applicant about her left shoulder and why he did not examine it. Dr Rimmer’s report seems coloured by his view that, while the applicant does have a right frozen shoulder, this condition can occur in the most innocuous events. Yet he does not really consider the tasks she was performing given rise to the right shoulder injury, which has been admitted by the respondent. He does find she cannot continue to work as a cook, but he says she could continue to work in the laundry, but again he does not convey details about what that work really entailed. He only refers to light duties in the laundry in his brief history.
In the Earning Capacity Report dated 14 May 2025 which was conducted on the papers there is reference to the applicant experiencing secondary pain in her left shoulder. Reference was also made to the opinions of Dr Porteous and Dr Rimmer regarding the left shoulder.
Mr Morgan submitted that there is an acceptance by all the medical examiners that the applicant’s right arm is frozen. I accept this submission as the above summary of the evidence demonstrates.
Mr Morgan relies on the applicant’s evidence in her statement and Dr Porteous’ opinion that because of her right shoulder injury she used her left arm more and has developed a consequential condition in her left shoulder. He argues that Dr Rimmer does not address the issue of causation about the left shoulder and only makes “an abject pronunciation of the proposition without dealing with it”.[22]
[22] T13.6.
Mr Coombe submits that the applicant gives no particular account in her evidence of her developing symptoms in her left shoulder or what the circumstances of that were. He submits it is relevant to look to what she told the general practitioner about her left shoulder, and he refers to the two entries on 20 August 2024 and 5 September 2024. He said these references were made after she ceased work. He submits there are no references while she was working and that Dr Moussad when recording these two references does not recommend any particular treatment. Mr Coombe also refers to the entry a short time thereafter about her fracturing her left arm, with a sling. He says there is no mention about her left shoulder at that time.
He submits that the Commission would have considerable difficulty in accepting any left shoulder condition or injury. He challenges Dr Porteous’ finding that there is a left shoulder condition consequent on her right shoulder injury from overuse because the only complaints recorded about the left shoulder were after she had ceased working. Later in his submissions he also argues that Dr Moussad did not refer the applicant for any treatment for her left shoulder.
The legal test to be applied when determining whether a consequential condition exists is the test of causation. It has long been held in the Workers Compensation Commission and now in the Personal Injury Commission that a worker can be entitled to compensation benefits when a body system has been injured as a consequence of the worker having sustained a s4 injury. The terminology often used to describe such an injury is a “consequential condition” as discussed in Kumar v Royal Comfort Bedding Pty Ltd.[23] In Kumar Roche DP applied Kooragang Cement Pty Ltd v Bates referring to Kirby P (as he was then) at 462E:
“that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[23] [2012] NSWWCCPAD 8 Kumar.
More recently the Court of Appeal in Fisher v Nonconformist Pty Ltd[24] discussed the concept of causation, albeit in the context of a s 4(a) injury and when applying s 9A. In determining whether the applicant sustained a consequential condition in her left arm and shoulder I do not have to apply s 4 or s 9A, just whether the agreed s 4 injury to her right shoulder has caused the alleged consequential condition in her left arm and shoulder.
[24] [2024] NSWCA 32 Fisher.
In the present case the determination is not straightforward because of the paucity of evidence about the left shoulder and arm. In terms of treating material there are only two brief references to left shoulder pain in Dr Moussad’s clinical notes on 20 August and
5 September 2024 and the reference in the physiotherapist’s undated report. There were no investigations ordered in relation to her left shoulder and no diagnosis made of the nature of any condition in the shoulder. The only medical practitioner who refers to examining the shoulder is Dr Porteous and he found subtle reduced restriction in the left shoulder. However, he does not deal with the fact that the applicant sustained a fracture to her left humerus and used a sling as reported by Dr Moussad on 12 September 2024. The applicant in her statement does not give a precise date as to when she felt symptoms in her left shoulder, and she does not deal with the fact she used a sling for a fractured left humerus. I find these are significant omissions in her case. This has led me to the view that the applicant has not discharge her onus of proof.
In Nguyen v Cosmopolitan Homes[25] the Court of Appeal stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[25] [2008] NSWCA 246, (Nguyen).
Quite simply I find that the evidence in this case does not give me an actual persuasion of the existence of the fact that the applicant’s experience of pain in her left shoulder was caused by overuse of that shoulder and left arm due to her right shoulder injury. I accept the respondent’s submission that her statement does not give sufficient particularity of what tasks she was performing at work or home when she developed her left shoulder symptoms and as I have said failure to even mention a fracture to the left humerus at around the same time is a significant omission because it has led to Dr Porteous not considering its relevance.
Accordingly, I make an award for the respondent in relation to the allegation of consequential condition to her left shoulder and arm.

Weekly compensation

The claim for weekly compensation is from 28 October 2024 under s 37 of the 1987 Act and from 19 December 2024 under s 38. The insurer reduced her payments from
28 October 2024, but she has received some weekly compensation benefits up to
13 April 2025 for 145 weeks.
Section 37 contains various formulas to apply depending on whether an injured worker has “no current work capacity” or “current work capacity”. These phrases are defined in schedule 3, cl 9 of the 1987 Act as follows:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”

“Suitable employment” is defined in s 32A of the 1987 Act as follows:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence”
Section 32A (a) (i) requires that the details provided in the medical information be considered including but not limited to any certificate of capacity.
It is common ground that the applicant cannot return to her pre-injury employment as a cook. Dr Rimmer for the respondent agrees with this proposition. However, he assesses that the applicant has the ability to continue to work in the laundry as she was doing before her employment with the respondent ended on 20 August 2024. The applicant argues that the work in the laundry was not a “real” job as it was devised by the respondent to keep her employed and they effectively ended that arrangement when they proposed she resign or be terminated. The applicant argues that the work in the laundry was not suitable employment for her, considering the factors set out in s 32A of the 1987 Act. The applicant submits that the respondent’s denials of liability and the work capacity decision are predicated on the assertion that the applicant can work as a cook.
The applicant’s counsel submitted that the employer has brought no evidence to challenge what the applicant says about her work in the laundry and the circumstances surrounding her cessation. He cites paragraphs 12 and 13 of her statement which he says states:
“the work in the laundry was physically and mentally exhausting and I often felt pain and aches all over my body after my shift. However, I enjoyed the work, so I did not complain and continued to work whilst in pain.”[26]
[26] T.33 and on the sound recording at 11.24 minutes.
However, this is not what paragraph 12 of her statement says. It does not refer to the “laundry”. She states “Overall, the work was physically and mentally exhausting...” Only one statement from the applicant is in evidence, in her ARD dated 15 April 2025. In no part of the statement does she refer to work in the laundry.
Dr Shazad in June 2023 just states at the time of the report she was on light duties, having returned to work on 4 February 2023 following the right shoulder scope and release along with bicep manipulation on 30 November 2022. He does not refer to the laundry work per se. At that time she was having physiotherapy twice a week and advised she could not lift her right arm. The doctor found it was unlikely that she could return to her pre-injury work. He found her prognosis guarded and he advised it would take another 12 months for a gradual resolution, and she might need permanent modifications on her employment. He believed she was fit for the suitable duties, able to continue working her current seven hours per day, four days per week but with a lifting restriction of 5kg.
The history in the report of High Performance Health by Emilia Josef, physiotherapist dated
3 February 2025 does refer to work in the laundry. She states following her injury she returned to work for the respondent performing light duties related to COVID-19 testing for three hours a day, four days a week and as her capacity increased, she transitioned to working six hours a day, five days per week in the laundry department at the same facility. It is stated that “although she continued to experience pain on certain days, she was able to manage her symptoms better in this modified role.” However, she was informed her modified work in the laundry was only temporary and she would not be able to continue in that position permanently. She was told to retire voluntarily or be terminated.
Ms Josef finds that the applicant’s age is a significant factor together with her physical limitation and lack of vocational alternatives to being a chef make returning to any form of work as not a feasible option. She notes that she lacks the necessary formal training and recent experience to transition to an administrative or clerical role.
Dr Porteous has a history that the applicant was off work for approximately one year and then she went back on restricted duties in the laundry doing 30 hours a week for about a year and then at the end of 2024 they offered her either to resign or to be terminated and she last worked on 20 August 2024. In answer to question 5 he advises:
“With regards to the right shoulder injury, she is restricted from any stretching or reaching out. She is restricted from repetitive shoulder activity. She is restricted from moderate or heavy lifting, pushing, pulling or carrying with the right arm and from repetitive light lifting, pushing, pulling or carrying. I note she is right-hand dominant. Work as a chef involves substantial activity she is now permanently restricted from and she has no capacity for her pre-injury employment at all and is totally incapacitated from it and that is going to be the case for the foreseeable future with her planning to work at least till she is 67.”
In answer to question 7 he advises:
“In my opinion, all of the jobs she has had training, experience and qualifications in that would be relevant involve activities she is restricted from noting her training, experience and qualifications and in my opinion, she has no capacity for any jobs that would be open to her in the open labour market in the real world because of her injuries and marked restriction and markedly reduced capacity and that is going to be the case for the foreseeable future.”
When answering question 10, Dr Porteous has the history that the applicant’s shoulder pain started at work and was better away from work, increasing when she went back to work.
Dr Rimmer has the history after approximately a year off following surgery she returned to work on light duties in the laundry. He found a decreased range of motion and stiffness in her right shoulder. He states given the extensive physical demands of being a chef, she will never return to pre-injury employment. He advises that there is no physical reason she cannot work 30 hours in the laundry as she was doing just prior to resigning her position yet he does refer to her ongoing painful restricted range of motion of her shoulder.
Dr Moussad has issued various SIRA certificates of capacity. The most relevant certificates include in the period 20 July 2024 to 16 August 2024 he found some capacity for work for six and a half hours per day for five days per week. For the period 17 August 2024 to 4 November 2024 he found she had some capacity for work for four hours per day, three days per week. He also placed many physical restrictions on her such as no activities above right shoulder level, lifting capacity 7kg, pushing/pulling 7kg and other activities as tolerated in all these periods.[27] From 5 November 2024 to 3 December 2024 the doctor certified her as having some capacity for six and a half hours per day for five days per week.[28] Dr Moussad changed the certification in the period 11 February 2025 to 11 March 2025 to having no current capacity for any work.[29]
[27] Application to Resolve a Dispute (ARD) p 171.
[28] ARD p 180.
[29] ARD p 168.
The respondent’s Labour Market Assessment Report dated 17 June 2024 is based on the applicant returning to work as an aged care cook. Given the opinions of Dr Rimmer and
Dr Porteous that work as a cook is not within her ability, I do not place weight on this report even though the author has identified three workplaces asserting her restrictions at the time in terms of hours and no lifting, carrying, pulling and pushing beyond 7kg could be met.
The Earning Capacity Report dated 14 May 2025 completed by Ines Pasic does give the most detail about what the work in the laundry involved. She refers to “labelling, putting away resident clothing and other cleaning material, fold feeders and fold face washers”. She also refers to “servery tasks (cooking toast, warming milk, serving cereals, clearing dirty places and pushing a small trolley)” and “cleaning and auditing (buzzer checks, staff room cleaning, refilling PPE, sanitise door handles, check all clean tea towels in each servery and return to laundry)”. These details were apparently taken from a Recover at Work Plan dated
23 September 2024, which was after she had left employment. Ms Pasic agrees that the applicant cannot work in her pre-injury employment as a cook. She identifies three areas of suitable employment being appointment setter/contact centre operator, information officer/customer service officer and clothing sorter.
The applicant’s counsel submits that the work in the laundry was not a real job as it was devised by the respondent to provide the applicant with suitable duties, and he says this is supported by the fact that the respondent did not keep the applicant employed in this role. The respondent has not put on any evidence to challenge the applicant’s assertion that she was told to resign, or she would be terminated. The applicant relies upon the decision in Wollongong Nursing Home Pty Ltd v Dewar[30] to support the argument that work in the laundry was not a real job.
[30] [2014] NSWWCCPD 55 (Dewar).
In Dewar Roche DP considered the provisions in s 32A at [48] he stated:
“The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is ‘available’ or is of a type or nature that is ‘generally available in the employment market’.”
At [49] Roche DP said this determination will depend on all of the evidence. At [58] he stated, “Suitable employment means “employment in work for which the worker is currently suited” (Roche DP added the emphasis). And at [59] he concluded “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.”
The respondent’s counsel argued that Ms Pasic had identified real jobs that the applicant could undertake. He acknowledges that appointment setter/contact centre operator and customer service are sedentary jobs but require the applicant to sit and work at a computer which is something she may not have done in the past. However, he submits that the third option of a clothing sorter is very similar with the work that she did with the respondent when she was performing light duties. He also submits that Dr Rimmer’s opinion about her capacity to work is borne out by the certificates of Dr Moussad which certify her as having capacity for some work until his last certificate, for which he gives no explanation for the downgrade.
The applicant submits in reply that Ms Pasic did not physically examine the applicant and prepared her report from the papers and does not really have regard to the applicant’s physical restrictions. He submits that all the medical examiners accept she is a straightforward witness with no suggestion of malingering or exaggeration. He argues her condition in the right shoulder has the nature that she experiences exacerbations from time to time and Dr Moussad’s final certification should be viewed in this context. He argues the earlier certificates were given as part of the rehabilitation process to keep the applicant employed in the light work role.
Having considered all the medical evidence and the parties’ submissions, I prefer the opinion of Dr Porteous to that of Dr Rimmer. I consider Dr Porteous’ report is more thorough and has more detailed reasoning to that of Dr Rimmer. Dr Rimmer’s opinion also seems coloured by the position he adopts about injury, and his scepticism that the right shoulder condition was caused by injury at work, yet the insurer has accepted injury to the right shoulder. Dr Porteous expresses the view that given her physical restrictions with her right shoulder, her age and training she has no capacity for any employment for the foreseeable future. This accords with my view when all the factors in s 32A are considered. It is also the view that Ms Josef came to.
As to the argument that the applicant could continue in a role such as provided by the employer in the laundry, I accept this was in reality a modified role designed for the applicant as she went through rehabilitation. But the reality is she was undertaking a significant amount of physiotherapy when performing this work for what could be described as a sympathetic employer, until they forced her resignation because they were no longer prepared to employ her in this role. I consider the applicant’s submissions about Dewar are apt in this situation. I find the work in the laundry was not a “real” job in the sense that such a modified position would not exist in the real labour market.
The respondent’s argument is to the contrary pointing to the real job identified with the Salvation Army as a clothing sorter. However, I find that Ms Pasic’s opinion, that this type of work is within the applicant’s capacity, was swayed by Dr Rimmer’s opinion, which I have rejected. She underlined in bold Dr Rimmer’s opinion on page 5 of her report and on page 8 in the conclusion she relied on Dr Rimmer’s opinion and the medical certificates of
Dr Moussad. I accept the applicant’s submission that Ms Pasic did not speak to the applicant or examine her, and I find, those facts together with her reliance on Dr Rimmer’s opinion, lead me to not accept her conclusion that the applicant has a current capacity for employment as a clothing sorter.
I accept the applicant’s submission that Dr Porteous is an occupational physician and therefore is best qualified to offer an opinion as to the applicant’s current capacity for employment.
In s 32A (a) (ii) the worker's age, education, skills and work experience need to be considered and as noted earlier the report authored by Ms Josef sets out all such details. The applicant is now 66 years old; she left school at age 16 and for about 30 years she has worked as a cook. Ms Josef found her age and her physical restrictions with her right shoulder are significant factors in returning to any work. I agree. I find the fact that she worked for David Jones doing administration before she had children to be so remote in the past to be not useful in terms of transferable skills, particularly with the technology changes in administration positions over the time since. It also needs to be borne in mind that the applicant is right arm dominant.
I find that from 28 October 2024 under s 37 of the 1987 Act the applicant has had no current work capacityas she is not able to return to work, either in her pre-injury employment or in suitable employment. I make an award for the applicant under s 37(1) at 80% of her pre-injury average weekly earnings (PIAWE) figure.
From 19 December 2024 the claim is made under s 38 of the 1987 Act. The respondent argues that the applicant has not fulfilled the requirements of s 38 and therefore she is not entitled to compensation for weekly benefits under that section. The obligation that the respondent’s counsel relied upon was that in s 38 (3) (a), that she had not applied for s 38 benefits before the end of the s 37 period. However, I accept the applicant’s submission that there is no dispute that the insurer in fact has paid some compensation under s 38 and an inference arises that the insurer was satisfied that the applicant had met her obligations in the s 38 period.
The respondent’s argument about the balance of the provisions in s 38(3) fails because of my finding that the applicant has no current work capacity. Section 38(2) applies in that situation, and I find given her age and the state of her shoulder she is likely to continue indefinitely to have no current work capacity and so she is entitled to compensation after the end of the second entitlement period. Section 38(6) provides for the applicant to receive weekly compensation at the rate of 80% of her PIAWE. I make an award in her favour for that amount to date and continuing. As the PIAWE figure is indexed twice a year, I leave the parties to calculate the mathematical amount in accordance with my findings.
The respondent is to have credit for payments made in the above periods.

[2025] NSWPIC 414

18 August 2025