Saade v Sydney Night Patrol Inquiry Co Pty Ltd t/as SNP Security - [2021] NSWPIC 53

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Saade v Sydney Night Patrol Inquiry Co Pty Ltd t/as SNP Security [2021] NSWPIC 53
APPLICANT:	Rodrick Saade
RESPONDENT:	Sydney Night Patrol Inquiry Co Pty Ltd t/as SNP Security
MEMBER:	Ms Kerry Haddock
DATE OF DECISION:	30 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Injury to left heel and ankle (plantar fasciitis); consequential condition of lumbar spine; and secondary psychiatric/psychological condition; liability for injuries accepted; claim for weekly benefits from 16 May 2020; applicant claimed to have no work capacity since payments of weekly benefits ceased; Held- the applicant has since 16 May 2020 had no work capacity; he is fit for only sedentary work, as a result of his physical injuries, but his psychiatric/ psychological condition incapacitates him for the type of sedentary work of which he would otherwise be capable.
DETERMINATIONS MADE:	1. That the applicant has had no current work capacity from 15 May 2020. 2. That there is an award for the applicant pursuant to section 37 of the Workers Compensation Act1987 at the rate of $1,047.51 per week from 15 May 2020 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

The applicant, Rodrick Saade (Mr Saade), sustained injury to his left heel (plantar fasciitis), both legs and lower back as a result of the nature and conditions of his employment for the respondent, Sydney Night Patrol & Inquiry Co Pty Ltd t/as SNP Security (SNP), as a security guard. The injury is deemed to have occurred on 27 March 2019. He also claimed to have sustained a psychiatric/psychological condition as a result of his physical injuries.
Liability for Mr Saade’s physical injuries was accepted; and compensation was paid until 15 May 2020. The respondent disputed liability for a psychiatric/psychological condition.
The respondent’s insurer, Insurance & Care NSW (iCare), issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 23 April 2020.
ICare disputed liability for payment of weekly benefits from 15 May 2020, on the basis that the applicant did not have a total or partial incapacity for work resulting from an injury. Icare also disputed liability for the applicant’s “proposed psychological injury” as it had not been able to confirm that he had a psychological diagnosis “in line with DSM-IV/DSM-V”. Icare also disputed liability for payment of medical or related treatment expenses, pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).
By letter dated 25 May 2020, the applicant’s solicitors made on his behalf a request for payment of weekly benefits from 18 May 2020 and continuing at the rate of $1,250 per week.
The applicant filed an Application to Resolve a Dispute in Matter Number 5735 of 2020. That Application was discontinued on 3 December 2020.
The current Application to Resolve a Dispute (the Application) was lodged on 9 December 2020.
The Application claims weekly benefits compensation from 27 March 2019, ongoing, pursuant to sections 36 and 37 of the 1987 Act. There is no claim for medical expenses.
The respondent lodged its Reply on 4 January 2021.
The respondent has confirmed that the only issue in dispute is now whether the applicant has an incapacity for work after 15 May 2020; and if so, the extent of the incapacity.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Whether the applicant has an incapacity for work from15 May 2020; and, if so, the extent of the incapacity.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing on 10 March 2021. Mr Greg Schipp of counsel, instructed by Mr Christopher Chidiac, appeared for the applicant, who was present. Mr Ross Hanrahan of counsel, instructed by Mr Dennis Kim, appeared for the respondent. Ms Gillian Lawrence of EML was also present.
The Application was amended by consent to claim weekly benefits from 15 May 2020, pursuant to section 37 of the 1987 Act.
The respondent objected to the applicant relying on reports from two qualified doctors, that is Dr James Bodel and Dr Uthum Dias, as being in breach of Workers Compensation Regulation 2016, Clause 44. The applicant withdrew the report of Dr Dias. Accordingly, I have had no regard to this report.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,309.39 per week.
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 Commission and considered in making this determination:

(a)    Application and attachments, with the exception of the report of Dr Dias dated 28 April 2020;
(b)    Reply and attachments;
(c)    Application to Admit Late Documents and attachments dated 2 March 2021, filed by the respondent and admitted by consent;
(d)    Application to Admit Late Documents and attachments dated 3 March 2021, filed by the applicant and admitted by consent, and
(e)    Application to Admit Late Documents and attachments dated 9 March 2021, filed by the applicant and admitted by consent.

Oral Evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Rodrick Saade

Mr Saade made a statement dated 23 September 2020.
Mr Saade was born and grew up in Lebanon. He studied law for two years but did not complete his degree. He worked as a customer service attendant at a casino for 10 years before migrating to Australia in 2005.
From 2005 to 2011, the applicant worked as a retail assistant and security guard for various employers. He commenced work for SNP as a security guard in early 2017.
The applicant’s work for SNP required him to work 10 to12 hour shifts, with prolonged standing. He regularly patrolled the area at and around 50 Martin Place Sydney and there were times when he was required to stand in a stationary position and not allowed to move.
Mr Saade states that he developed injuries in his left heel; both legs; back; high cholesterol and diabetes; and psychological/psychiatric injury.
The applicant states that it has been recommended that he not return to work as a result of his injuries. He tried working for approximately three to four months from April 2019 to July 2019; and for three weeks in October-November 2019, doing light duties. However, as his injuries worsened, he had been forced to take time off since November 2019. He has not returned to work.
The applicant states that he continues to experience pain in the parts of his body that are affected. He cannot stand or sit for too long. Even when he is lying down, he still feels pain to parts of his body. The pain is much worse during winter. When he stands up from bed at the beginning of the day, the first steps are especially painful.
Mr Saade states that despite his injuries and the recommendations of his treating doctor and specialist not to return to work, EML had stopped his payments and expected him to return to work. They were constantly pressuring him to return to work even after he repeatedly told them he was unfit for work.
On 8 December 2020, the applicant made a further statement.
The applicant states that, after the events he has referred to in his previous statement he started to feel pain in his left foot that was “like a knife in my foot”. He still could not stand for more than five minutes. The pain was in his heel and ankle. He started to limp and tended to walk on the toes of his left foot.
The applicant then started to feel pain in his lower back, which he estimated occurred in about May 2020. He saw his general practitioner, Dr Mapa, who told him his back pain had occurred because he was walking with an unusual gait.
The applicant’s back pain is in the lower back, sometimes on the left. It is not constant, but it is sharp. It comes on after he moves for more than about 15 minutes, especially walking. There is no altered sensation in his legs.
Mr Saade states that he has good and bad days. On a bad day, his back pain is 7-8/10; and on a good day it is 6/10. He estimates that he has four bad days each week. His back pain is aggravated by sitting for more than 30 minutes. He does not do any sitting because this will cause him pain. He cannot get into awkward positions without pain. He can bend only with difficulty.
The applicant was taking Mobic but can no longer do so because it was affecting his stomach. He takes two paracetamol tablets every night to help him sleep.
The applicant also has psychological problems associated with his condition. These became severe in about March 2020. His GP recommended counselling. Initially, he did not want to go, as he was worried about what others might think. Dr Mapa prescribed Xanax, then Lexapro.
The applicant was having symptoms such as night sweats; heart palpitations; and pressure in his chest. He was referred to a heart specialist as a precaution but was cleared of any cardiac issues. He had anxiety symptoms. He was worried about the future if he was unable to work. He would wake at 4.00am and his thoughts would race. He suffered from lack of ability to concentrate and loss of patience. He felt like he was a “different person”. He used to be motivated and sociable, but no longer. He thought he would get better.
The applicant states that he has limited work skills. He has only done physical jobs and has no other training. Apart from his work in the casino, he had done small mechanical repairs for about 10 years and worked in clothing retail from 2006 to 2012. He then went into security work. He has had no experience or training in any other field or in administration.
The applicant is willing to have PRP [platelet rich plasma] injections, as proposed by his doctors. He was ready to have them but the insurer declined liability. He previously had five sessions of “shock wave” treatment, but this didn’t help. He sees a psychologist once a week. It is paid by Medicare. If it didn’t pay, he wouldn’t be able to afford it. The treatment seems to be helping. Medicare pays for his GP consultations and he gets a subsidy for his medications. He has also had five sessions of physiotherapy through Medicare, but it would not pay for more.
On 2 March 2021, the applicant responded to the evidence of Ms Tarraf, which is discussed below. He states that he did not at first lodge a claim as he didn’t know much about what was happening with his body, the injury or what he should do. He was in a state of confusion. He never requested to work night shift and nor did he work night shift.
The applicant states that his employer failed to mention that it promised to arrange transport to accommodate his injury. It was never arranged. Travel would take about two hours a day and require him to walk 40 minutes to and from the nearest station. His GP recommended that he should stand for a maximum of 10 minutes and walk for five minutes.
The applicant’s mother’s home burned down on 29 August 2019. It had been rebuilt by the time he arrived in Lebanon. He was travelling because his mother was seriously ill. He was unable to work because the winter/snow season did not permit it. No work was performed during his visit and his travel had nothing to do with rebuilding the house.
The applicant states that much of the issues his employer has regarding his injuries has been with Dr Mapa. He does not understand why he has to deal with issues from his employer simply because of the issues with his GP. English is not his first language and it is unfair of his employer to assume he would understand everything regarding workers’ compensation.

Evidence of Ms Jamie Saade

Ms Saade is the applicant’s wife. She has provided a statement dated 2 March 2021.
Ms Saade states that she is a senior social worker and is rightfully aware of the impact of the injury on Mr Saade and their family. She and their sons, aged 15 and 13, have also had to endure the stress.
Ms Saade further states that the applicant has had great psychological strain and varying emotional responses to his pain, inability to undertake his usual fitness regime, activities of daily living and inability to work and help manage the family income. He has higher than usual frustration, stress levels and agitation, which is often taken out on her and the boys. He is not abusive or violent but has limited patience and higher levels of frustration and depression that have escalated, with him withdrawing from leaving home or associating with relatives or friends. He feels guilt due to his lack of ability to help financially. They are not coping financially, which has caused marital problems.
Before the injury, the applicant was a happy, content and healthy partner and husband. He is now severely depressed, anxious, frustrated and angry.

Evidence of Ms Sylvana Tarraf

Ms Tarraf is the respondent’s National Manager, Injury Management.
On 18 January 2021, Ms Tarraf stated that she is involved in the management of issues related to workplace injury and return to work plans.
The applicant reported the sudden onset of left foot pain on 27 March 2019. He did not wish to claim workers’ compensation at that time. Due to his medical certification, he was moved from night shift to day shift, which reduced the total standing time to four hours. The rest of his duties were performed while sitting.
The applicant remained on light duties until July 2019. He lodged a certificate of capacity dated 29 July 2019, stating that he was unfit.
On 28 October 2019, the applicant was upgraded to suitable duties, which did not involve standing or frequent load bearing on his feet. He could remain seated. Ms Tarraf states that “As far as I am aware”, the applicant’s duties were concierge type duties, sitting at a desk, greeting, issuing passes and doing “admin type duties”. He initially refused the duties, as the start time was 5.00am and he previously started work at 6.00am. He was accommodated and worked from 7.00am to 1.00pm.
The applicant’s supervisor reported on 6 November 2019 that he was having problems with some tasks related to issuing passes and he was given a refresher. The applicant suggested that if he went back to work at Shelley Street, he would have less distance to walk from the station. The distances were compared and were the same, so he remained at Martin Place.
The applicant requested annual leave from 6 December 2019 to 31 January 2020, as he had family issues. He said he had to fly to Lebanon as his mother’s home had sustained significant fire damage. She had received an email from the insurer’s “Technical Specialist” that the applicant assisted with some work on the house.
After requesting leave, the applicant submitted a certificate of capacity on 4 December 2019 stating that he was unfit for any duties during the period of leave. He claimed to be in pain, even sitting at work. He had not returned to work since November 2019.
Ms Tarraf states that duties can be found at many of SNP’s sites where the applicant could work within his medical restrictions. The duties were available in 2019 and “they are available now”. From the first time she discussed a return to work plan and suitable duties with the applicant he said he wanted to return to work; and “I can sit at work just like I am sitting at home”.
Although the applicant expressed those wishes to Ms Tarraf, this was not the case when she attended medical case conferences. He complained of ongoing pain and inability to work. He would usually be prompted by his GP.
After the applicant was referred for return to work assistance, Ms Tarraf received reports that he was not motivated to return to work and could not be contacted. Dr Mapa would refuse medical case conferences and not receive or respond to phone calls. This meant they could not negotiate any offers of suitable duties.
In February 2020, when a worksite assessment was attempted, the applicant advised he could not attend as he could not walk from the station to the site. Transport assistance was offered, but he refused to attend. It was suggested that the assessment could be conducted remotely, but Ms Tarraf and the case manager deemed this to be impractical. They agreed to have a medical case conference, but it never eventuated due to issues with making contact with the applicant and doctor.

Medical Evidence

Some of the medical evidence is not relevant to the claim. I will refer only to the most relevant evidence.

Dr Chitrica Mapa – General Practitioner

There are no reports from Dr Mapa, but her clinical records and medical certificates are in evidence.
The records are hand-written and poorly copied, so they are largely illegible. However, as injury is not in dispute, it is not necessary to refer to them in detail.
There is an entry on 1 April 2019 that appears to say that from 27 March 2019 to “now” there was a gradual onset of left foot pain, aggravated by standing (when on the foot(?)). The pain was from the heel to the ankle and forefoot, sharp and aching in nature.
Dr Mapa’s first medical certificate, which is not a SIRA certificate of capacity (COC) is dated 10 April 2019. It certified the applicant as having left sided plantar fasciitis, caused by prolonged standing “(severe pain in the L/heel, aggravated by standing for long periods.)”
Dr Mapa later certified the applicant with acute anxiety and depression and lower back pain. The latter appears to have been first mentioned on 4 December 2019, although it is referred to as “radiated to the lower right back.”
The applicant’s back pain was later attributed to aggravation by his poor gait and the cold climate.
On 14 November 2020, Dr Mapa certified that the applicant’s back pain was getting worse due to his abnormal gait. He also complained of severe pain in the left ankle.
Throughout the period in issue, Dr Mapa has certified the applicant with no work capacity. Her last COC in evidence is dated 15 February 2021. It certified the applicant with no work capacity until 15 March 2021. The injury was described as left foot plantar fasciitis, due to prolonged standing at work. The applicant had acute anxiety and depression, “getting worse”. Abnormal gait was aggravating his back pain.

Dr Bassam Moses – Sports and Exercise Medicine Physician

Dr Moses reported to Dr Mapa first on 1 August 2019.
He recorded a history that on 27 March 2019 the applicant began to notice a gradual onset of left foot pain. This coincided with an increasing standing activity of approximately 10 hours a day in his job.
The applicant’s pain localised initially to his medial heel, but he also had both lateral and medial mid-foot and ankle pain. The pain was sharp and aching, without a neuropathic component. There was no locking, catching, instability or swelling. The applicant did have morning pain and stiffness, warming up with activity. He was aggravated by prolonged standing and weight-bearing. He had had an x-ray and ultrasound that confirmed left-sided plantar fasciitis.
Dr Moses explained to the applicant the pathophysiology of “this process” and the importance of appropriate load and pain management strategies. The applicant was also most likely suffering from compensatory peroneal and tibialis posterior tendinopathy. Dr Moses arranged an MRI scan.
On 8 August 2019, Dr Moses reported that the MRI revealed no tears in the applicant’s plantar fascia. Despite this, he had clear clinical and historical signs of plantar fasciitis.
Dr Moses had taken the applicant through a rehabilitation program and discussed the use of extracorporeal shockwave therapy. That would involve five sessions over a five-week period.

On 12 September 2019, Dr Moses reported having given the applicant his final (fifth) shockwave therapy treatment. He had referred Mr Saade to Peter Moussa, physiotherapist, for a rehabilitation program that focused on calf and plantar fascia stretches, as well as intrinsic foot muscle exercises. He was also referred for assessment for orthotics.
On 10 October 2019, Dr Moses reported that the applicant was making slow but steady improvement. He was working well with Mr Moussa. He was awaiting approval to see a second podiatrist.
On 23 October 2019, Dr Moses reviewed the applicant to discuss his return to work. He felt that it was in the applicant’s best interests that he return to work three days a week, for six hours a day. He would need a restriction of walking of five minutes, as that was what exacerbated him; and a standing restriction in one position of 10 minutes.
Dr Moses opined that the restrictions would cause problems with the applicant’s ability to travel to work, as he walked a minimum of 20 minutes to catch public transport. His workplace would need to find a solution to avoid excessive walking beyond his restrictions.
On 5 February 2020 Dr Moses reported that the applicant continued to experience pain and somewhat regress since his last consultation. He would shortly be receiving his orthotic. He continued to have significant pain at the medial aspect of his calcaneus at the insertion of his plantar fascia and over his heel fat pad.
Given the chronicity of the applicant’s condition and lack of response, Dr Moses suggested a repeat MRI scan. In the meantime, he suggested the applicant trial a Strasburg sock.
Dr Moses reported on 19 February 2020 that the applicant’s MRI revealed mild changes associated with the central band of his plantar fascia added to insertion into the calcaneus. He had minimal thickening and high signal. There was no evidence of bone stress or stress fractures positively.
The applicant had just received his orthotics and had begun to use them very gradually, as he had correctly been advised to do.
Dr Moses had reassured the applicant that no further intervention was required at that point, other than to continue with physiotherapy and increase the use of his orthotics.
On 27 April 2020, Dr Moses reported that the applicant continued to suffer with plantar fasciitis; and “more importantly he has become extremely stressful [sic] and is suffering with anxiety as a result of a consultation with Dr Anthony Smith…”
Dr Moses noted that Dr Smith’s report stated that the applicant’s employment was not a “substantial factor” to the development of his plantar fasciosis. Dr Moses accepted that it is degenerative in nature. However, the applicant had an acute exacerbation which had failed to settle; and given that he performed most of his weight-bearing activity at work, Dr Moses did not understand what other factor would substantially contribute to him developing this condition.
As for the applicant’s fitness for work, Dr Moses noted that Dr Smith had stated he was fit for his normal work. Dr Moses opined that clearly he was unable to perform his normal duties due to his pain.

Dr Moses had instructed the applicant to continue with his intrinsic foot muscle exercises and the use of anti-inflammatory to improve his pain. He had discussed corticosteroid injection, but the applicant was not keen at that stage. Dr Moses suggested that he be referred to a psychologist, given his level of anxiety and stress and the problems this was causing with his sleep.
On 11 June 2020, Dr Moses reported that the applicant had told him his WorkCover case had been closed, despite the fact he was “not completely rehabilitative” from the injury.
Dr Moses recorded that the applicant continued to suffer with plantar fasciitis but had developed lower back pain as a secondary effect of his antalgic gait. He had referred the applicant to Dr Alice Chan, a foot and ankle surgeon, for an opinion. He had also explained the option of PRP injections if the applicant was not keen to pursue surgery.
Dr Moses had made no plans to review the applicant at that stage.

Dr Ian Smith – Injury Management Consultant

Dr Smith performed an injury management consultation file review on 15 October 2019. He recorded a consistent history of the injury and treatment.
The applicant had been certified with no work capacity since 30 July 2019. Dr Smith had been asked to discuss his capacity and timeframe to pre-injury duties with Dr Mapa. The applicant had plantar fasciitis attributed to the nature and conditions of his work but was recently issued with an unfit certificate by Dr Mapa.
Dr Smith had contacted Dr Mapa on 14 October 2019 and tried to discuss that plantar fasciitis would not normally be expected to cause someone to be totally unfit for all work, and that Mr Saade should be fit for sedentary duties.
Dr Mapa was “intent on talking over the top” of Dr Smith and kept referring to imaging that showed the applicant had “terrible tears on the bottom of his foot”, which made him unfit on advice from Dr Moses, with whom she had discussed the matter.
Dr Smith explained to Dr Mapa that she was the certifying doctor and needed to assess work capacity. He asked her if she thought Mr Saade could sit in a chair and do some work. She was “not in a mood to listen” and hung up. Dr Smith made another attempt to contact Dr Mapa, without success.
Dr Smith then discussed the matter with Dr Moses, who advised there was no difficulty with the applicant resuming full-time work. The issue was purely one of weight-bearing; and with appropriate limitations on the time on his feet, there was no issue with the applicant returning to work. He would formally advise Dr Mapa about the restrictions for full-time work.
Dr Smith requested EML’s injury management specialist to follow up with Dr Moses to ensure he provided advice to Dr Mapa and have the applicant return as soon as possible to her to get a full-time certificate, with appropriate restrictions on his mobility. He opined that a totally unfit certificate was not merited.

Dr Anthony Smith – Orthopaedic Surgeon

Dr Smith reported to EML on 2 April 2020.
Dr Smith noted there “was no actual accident or injury”. There was pain in the left heel and lateral foot, made worse by weight-bearing. On 27 March 2019, the pain was sufficiently severe for the applicant to report the condition.
The applicant attended Dr Mapa. Dr Smith noted a medical certificate dated 7 August 2019, which described the applicant as having left foot pain, consequent to prolonged standing at work. He was standing for 10 to 12 hours on a shift. The symptoms began on 27 March 2019.
The applicant had an ultrasound and was referred to Dr Moses. Dr Smith referred to his report dated 1 August 2019. He noted that MRI on 12 February 2020 showed mild changes consistent with plantar fasciitis, but no other abnormalities in the ankle or foot.
Dr Smith recorded that the applicant had been treated with ultrasound shock therapy, without a great deal of benefit. He had not worked since November 2019, because of his symptoms, which were not a great deal better.
The applicant had with him an x-ray and ultrasound dated 1 April 2019. The x-ray demonstrated no abnormality and changes consistent with plantar fasciitis were seen on the ultrasound.
Dr Smith opined that, clinically, the applicant had left plantar fasciitis. This is a degenerative condition that occurs equally in males, females and people from all walks of life. There are many explanations of its origin. The plantar aponeurosis is a fascial strip that extends from the calcaneal tubercle to the metatarsal bases, and it becomes stretched. This pulls on its attachment at the calcaneal tubercle, which causes inflammation. The inflammation causes pain; calcium is deposited at the site of the inflammatory tissue; and a bony spur grows.
Dr Smith reported that the incidence of bony spurs in people over 60, with or without symptoms, is inordinately common. The most effective treatment is an exercise regime, exercising intrinsic foot muscles, which usually results in loss of symptoms after about one month.
Dr Smith’s diagnosis of the applicant was plantar fasciitis, which was symptomatic on the left. The applicant did not as yet have a bony spur. “It is not really an injury”. Dr Smith opined that the applicant’s employment was not a substantial contributing factor to the development of the condition. It was consequent to the ageing process.
Dr Smith opined that there were no symptoms present “now” that would have been the result of any weight-bearing undertaken by the applicant on 27 March 2019. The pain resolves within seconds or minutes after taking one’s weight off one’s feet. The problem is that there is pain whenever one weight bears, rather than regarding the symptoms to be a repetitive exacerbation to an underlying inflammatory process.
Dr Smith opined that no treatment always works. Radiofrequency shocks are a relatively new treatment. In the past, injections of local anaesthetic and hydrocortisone have been given, with a high rate of success. Exercises are also effective; and an effective dose of anti-inflammatory medication can be useful. Operations are done rarely, to disconnect the plateau aponeurosis from the calcaneus tubercle. Excising the bony spur achieves the same result. This operation works about 80% of the time.
Dr Smith believed the applicant was fit for work. He may be able to work quite well if he implemented an exercise regime for his intrinsic foot muscles. The condition would ultimately resolve and leave no disability, whether it was treated or not.
Dr Smith again reported on 19 February 2021.
The applicant had been off work since November 2019, because he was not a great deal better. He described being worse with regard to his left lower limb. There was ankle pain and increasing problems with low back pain. The applicant was walking on his toes and had had 10 physiotherapy treatments. He also complained of right hip pain.
Dr Smith referred to the other available medical evidence and investigations. He has referred to the report of Dr Dias, which is not in evidence, and I have had no regard to that part of his report.
Dr Smith performed a thorough examination. He remained of the opinion that the diagnosis was plantar fasciitis. The applicant complained of increasingly severe low back problems, which was not a problem when he was last seen. He was “behaving most elaborately and bizarrely”. Dr Smith considered that he had considerable psychiatric problems.
Dr Smith opined that the natural history of plantar fasciitis is for it to become asymptomatic. This can take two years “or thereabouts”. Nearly everybody gets it but not everybody gets symptoms. The applicant is 49. If x-rays were taken of the feet of asymptomatic 49-year-old patients, there would be a high incidence of calcaneal spurring. The incidence increases with age to become an abnormality that is considered unremarkable. Symptomatic plantar fasciitis is a problem of being middle-aged. “We all get lumbar degenerative disease. It is part of the normal ageing process”. Everyone gets back pain from time to time. Some patients have more problems with the degenerative process than others.
Dr Smith further opined that the applicant was manufacturing physical signs and had a most inconsistent, bizarre presentation. He “will have lumbar degenerative disease”. He also had plantar fasciitis, which was likely to be bilateral, but was not symptomatic on the right. From an orthopaedic point of view, he was fit to work.
Dr Smith reported that the plantar fasciitis should recover “as a symptomatic phenomenon”, whether or not it was treated. He opined that there was no actual accident or injury. If the applicant is working 10 hours a day and travelling to and from work, it will come to pass that the plantar fasciitis will become symptomatic during his employment, as that is the only time he is on his feet for any length of time.
Dr Smith noted that there are a number of treatments for the condition, “mainly because none of them always work”. He opined that the most efficacious is to strengthen the intrinsic foot muscles through exercise.

Dr Yajuvendra Bisht – Psychiatrist

Dr Bisht was qualified by EML and reported first on 18 May 2020.
Dr Bisht recorded a consistent history of the applicant’s physical injury and treatment. The applicant said he was unable to pursue his earlier interests, due to pain and associated restrictions.
The applicant told Dr Bisht that in late 2019 his parents advised him that their house had burnt down and his mother had been injured. He went to Lebanon to support them and was there for four weeks. His mother recovered and he was able to help them renovate their house.
Dr Bisht recorded that the applicant started to have substantial psychiatric symptoms after an increase in pain, despite doing lighter duties, and he had to stop work. He started to be preoccupied with regret about staying with SNP and fear about his future.
The applicant started to experience decreased interest in previously pleasurable activities and lack of motivation to socialise. He also had sleep disturbances, waking several times most nights, so he felt fatigued during the day and his concentration was affected. He would get irritable with minor provocation. His psychological problems had gradually worsened and his wage had recently stopped, which had contributed to this.
Dr Bisht recorded that the applicant tried to read the Bible but was not able to read for more than a few pages at a time, and sometimes watched movies. He spent most of his time “with myself”. He had not been attending social gatherings, as he didn’t like to interact with people. He could self-care without prompting but not to the same level as before. He had been able to travel to unfamiliar places alone. He was distant and irritable, which had affected his relationship with his family.
The applicant told Dr Bisht that his doctor said he should see a psychologist, “but I am not crazy…If anyone in my town sees me here today, I would feel shame.” He had been taking alprazolam once a day for six months and had been prescribed escitalopram but didn’t want to take medication.
Dr Bisht did not record any relevant family or pre-injury history. He diagnosed adjustment disorder with mixed anxious and depressed mood. The stress-related disturbance did not meet the criteria for another mental disorder.
Dr Bisht opined that the predominant cause of the applicant’s psychological condition was the pain and restrictions resulting from the plantar fasciitis. He was unable to comment on whether the plantar fasciitis was related to employment. As Dr Smith had opined that “work
is NOT the substantial contributing factor to the diagnosis”, Dr Bisht concluded that employment was not a substantial contributing factor to the applicant’s psychological condition. The effects of the physical injury had not ceased, as the applicant reported ongoing pain and restrictions, which caused psychological distress.
Dr Bisht further opined that the applicant was fit to work four hours a day, five days a week, in his pre-injury role.
Dr Bisht again reported on 11 February 2021. He noted having recorded in mid-2020 that the applicant’s psychological symptoms had gradually worsened since their onset.
As regards treatment and progress, the applicant did not feel a big change in his life. He had started taking escitalopram and stopped alprazolam. His ankle was now hurting; and he always had pain there and in his lower back. He was not able to do any housework. There had been little improvement in his psychological symptoms.
For three months, the applicant thought he had a heart problem, as he would wake at night “and it was like my heart was racing”. He sought treatment, but “they said I don’t have a heart problem”. That upset him, as he wondered “what’s happening to me”.
The applicant just wanted to stay home. He enjoyed reading and could read for 30 to 45 minutes. He watched TV, including meditation. The psychologist had helped him a lot. Sometimes he slept straight away and sometimes he could not sleep. The psychologist told him that if he wakes, to get up and do things.
The applicant was very sad. “They” (the respondent) thought he was lying. He is not lying. “In the middle of my treatment, they closed my claim”. He did not want to be with people. He rarely attended social gatherings. He never finished a movie. He drove locally but not far. His friends from work had not called him. He wanted to work. Sometimes he felt that his wife should not be with him any more. He talked to his parents once a fortnight.
Dr Bisht diagnosed major depressive disorder. From a psychological perspective, the applicant would be able to work four hours a day, four days a week, in a job that did not require him to interact with unfamiliar people or make complex decisions/sustain intense concentration for long periods. He was not able to work with the respondent. He also required ongoing psychological and psychiatric treatment and medication for about six months.
The main contributing factor to the applicant’s psychological condition was his physical injury. Dr Bisht was unable to comment on whether the physical injury was work related. The psychological condition had developed as a consequence of/secondary to the physical injury and the change in the applicant’s life circumstances resulting from that injury.
Dr Bisht assessed the applicant’s whole person impairment (WPI) as 7%.

Dr Alice Chang – Orthopaedic Surgeon

Dr Chang reported to Dr Moses on 20 July 2020, having been asked for a second opinion.
She recorded a history that Mr Saade had been having worsening plantar left foot pain since March 2019, when he was working as a security officer, requiring standing for long hours on tiled floor. This was worse with the first few steps after a period of rest and improved after a few steps, but persisted throughout the day. At one point, he was refusing to bear weight through his left heel due to pain.
The applicant had had shockwave therapy and physiotherapy, with temporary improvement. Dr Moses had suggested PRP injection but the applicant would like a second opinion. His condition was initially covered under WorkCover, but this ceased five or six months before. The applicant was “litigating this”. He had been off work since March 2019, having returned for a brief period in September 2019, but stopped due to pain. He felt this was affecting his gait so much that he was having left hindfoot pain along the tibialis posterior tendon and lower back pain.
Dr Chang diagnosed persistent symptomatic left plantar fasciitis that had failed shockwave therapy and physiotherapy. She agreed that PRP injection may be what the applicant needed to “break the cycle” and enable a return to baseline function. She had advised him to return to Dr Moses for the injection. “In the unlikely event” that he did not improve with the injection, Dr Chang would be happy to consider plantar fascia reconstruction with scarification and augmented injection.

Dr Thomas Oldtree Clark – Psychiatrist

Dr Clark was qualified by the applicant and reported first on 17 August 2020.
He recorded a consistent history of the onset of symptoms. He recorded the applicant’s injuries as being to the left heel; both legs; back; stomach; cholesterol and diabetes; and psychological/psychiatric. He also recorded a consistent history of the applicant’s family background, education and employment.
Dr Clark noted that the applicant’s social life had changed. He was no longer running, walking or capable of activities. He was desperate that everybody was out at work and he felt as if he was “a traitor”. He should be at work but was not able to stand or work. He was scared for his future and very angry.
The applicant had been referred to a psychologist and prescribed medication by his GP. He did not wish to see a psychiatrist – “I am not a crazy person”. He suffered early morning waking. He was less affectionate in his relationship. He wondered if he had a future but had no suicidal thoughts.

Dr Clark diagnosed major depressive disorder. He provided the symptoms that suggested this diagnosis. The applicant was “incapable of useful work” and was likely to retire early.
Dr Clark assessed WPI of 15%.
Dr Clark again reported on 5 March 2021. He had not re-examined the applicant.
He referred to the applicant’s psychiatric state as typical of major depressive disorder. The applicant was scared for his future, very angry and depressed. Normally, recovery may take two to three years, but this relies on the patient reaching some form of stability beforehand.
Dr Clark opined that the applicant’s psychiatric impairment was at least 50% responsible for his incapacity to work.

Dr James Bodel – Orthopaedic Surgeon

Dr Bodel reported first on 16 November 2020.
He recorded a consistent history of the injury, summarising the applicant as having heel pain in the left ankle and foot – plantar fasciitis – and mechanical backache.
Dr Bodel noted that the applicant had had short wave diathermy “which made things much worse”. He had had physiotherapy, including for his back, as that became increasingly painful because of his abnormal gait pattern. This was about seven months after the injury.
The applicant had been offered PRP injections, which were not approved; and arthroscopy, which was also not approved. He “pleaded” with Dr Bodel that he was in agony. He had back pain. He wanted further treatment, including physiotherapy and the injections.
The applicant had a certificate that indicated no current capacity for work. He stated he was steadily getting worse. He had been advised to walk, which aggravated his symptoms. He had had no scans of his back but was having treatment.
Dr Bodel noted complaints of dull aching pain across the lower back and left buttock; and excruciating pain in the left heel, mostly in the area of the anterior tubercle on the sole of the foot, but also in the medial and lateral sides of the calcaneus.
Dr Bodel disagreed with Dr Smith’s opinion that the applicant’s employment was not a substantial contributing factor to the injury. The applicant developed the pain while working and doing a patrol position.
Dr Bodel opined that it appeared likely that the applicant had suffered a tear in the degenerating plantar fascia. He had severe pain in the heel and consequential back pain. Dr Bodel strongly recommended MRI of his back. The applicant had significant wasting of the left calf, which is unusual in the case of plantar fasciitis.
Dr Bodel diagnosed plantar fasciitis in the left heel. The applicant’s prognosis was very guarded. It was 1.5 years since the injury and he was surprised at the severity of the pain. The natural history of plantar fasciitis is slow improvement over about 18 months to 2.5 years. The applicant said he was making no progress, which was unusual.
Dr Bodel found a direct causal link between the episode of injury that occurred while the applicant was walking at work and his ongoing complaints.
The applicant had no current capacity for work. He needed further investigation and treatment. Dr Bodel recommended a bone scan and referral to a rheumatologist. In the longer term, the applicant would need injections of cortisone and/or PRP. He may require surgery, although hopefully it could be avoided.
Dr Bodel assessed 14% WPI, comprising 7% WPI for the left lower extremity and 7% WPI for the lumbar spine.
Dr Bodel again reported on 9 March 2021. He had been asked to comment on the applicant’s capacity for work from the point of view of his back injury.
Dr Bodel noted that the applicant’s pre-injury work required a lot of standing, walking and patrolling work. His back injury caused difficulty with these activities and he would be better suited to work that was predominantly sedentary. He would struggle to do work that required him to stand, walk, carry or lift. These restrictions were a direct consequence of the accident on 27 March 2019.

Ms Michelle Chin – Psychologist

Ms Chin reported on 27 November 2020. She had been treating the applicant at Wellbe since 12 November 2020 for adjustment disorder with mixed anxiety and depressed mood.
The applicant had been referred to Ms Chin by his GP, in liaison with his cardiologist, due to concerns about his high blood pressure and arrhythmia and deteriorating mental state.
Ms Chin reported that the applicant had presented with a depressed and anxious mood, marked sleep disturbance, heart palpitations, nausea and difficulty breathing. He also reported irritability, memory issues, trouble concentrating and feelings of worthlessness. He had been unable to work due to severe pain, unable to support his family; and found his social, familial and marital relations deeply strained.
The applicant described himself as hardworking, active and social before the onset of the injury. He had been unable to engage in any of his pre-injury leisure activities, or routine activities such as driving, housework and childcare. He had become socially withdrawn and felt a loss of identity, straining his relationships.
Ms Chin reported that the applicant had expressed a strong desire to return to work but had been unable to access treatment for his plantar fascia, given the expense and his markedly diminished income. His chronic pain and increased distress had led to chronic sleep issues, fatigue, memory impairment and diminished attention and concentration. This further compromised his ability to return to work. She therefore recommended continued treatment.

Vocational Evidence

The respondent relies on a report of Ms Wendy Kurta of Rehabilitation Services by Altius, dated 1 March 2021.
The purpose of the Labour Market Analysis Report was to review and identify, within the open Australian labour market, the availability of employment and return to work options. According to the report, it considered the medical, functional, skill, knowledge, training and qualification requirements for each role, as it was relevant to Mr Saade, in consideration of the definition of suitable employment.
The report identified alarm, security and surveillance monitor; information officer; and call centre operator as suitable employment options for Mr Saade. The occupation description and demands (physical and cognitive) of each position were provided.
The report concluded that the average wage for each option was:

(a)    Alarm, Security and Surveillance Monitor: $1,318 gross per week (44 hours per week); and $920.83 gross per week (28.22 hours per week);

(b)    Information Officer: $1,192 gross per week (40 hours per week); and $994.94 gross per week (30 hours per week), and

(c)    Call Centre Operator: $1,196 gross per week (40 hours per week); and $901.25 gross per week (25.75 hours per week).

SUBMISSIONS

The parties’ submissions have been recorded, so I will refer to them only briefly.

Applicant

The applicant submits that the starting point is the section 78 notice, in which the respondent accepts that he sustained an injury. There is a disconnect between Dr Smith’s evidence and the notice. Dr Smith does not believe the applicant had an injury, but it has been accepted.
The applicant therefore focuses on incapacity. He has a standing limit of five minutes, pain in his low back and a psychological condition. English is his second language and he has limited work skills. Since May 2020, he has had no capacity for work.
The applicant submits that he has back pain, secondary to antalgic gait. The history is detailed and clear, the result of multiple assessments over time. Dr Bodel referred to a pronounced left limp; guarding; wasting of the left calf (also noted by Dr Smith); and reduced range of motion in the left ankle. He has confirmed in his supplementary report that the applicant’s back is also a cause of his incapacity.
As for the applicant’s psychological condition, on every view of it, it is a cause of his incapacity. Dr Clark and Dr Bisht came to the same conclusion that he had a major depressive disorder.
The applicant submits that Ms Tarraf’s evidence does not take matters anywhere, as it refers to a period in about November 2019. It does not assist in deciding the issue.
As regards the respondent’s evidence, the applicant submits that Dr Smith concluded that, if he is on his feet, he has pain. Dr Smith reported that there is pain if one weight bears. The job of a static guard required him to be on his feet. He was in pain due to plantar fasciitis.
The applicant submits that Dr Smith opined that the condition usually resolves within about two years. The common treatment does not always work. It should be no surprise that it has not worked, and the applicant refers to Dr Chang’s evidence. While Dr Smith opined that the applicant was fit for work, he also reported that he would be able to work quite well if he implemented an exercise program, which must be a concession that he was not able to work quite well without exercise.
Dr Smith’s opinion did not change, but the applicant submits that he found objective signs on examination. The applicant submits that, where two treating orthopaedic specialists and a qualified orthopaedic specialist are “on song”, and Dr Smith accepts the presence of the condition and that he has symptoms at work, there is no logical reason to accept Dr Smith’s opinion.
The applicant submits that Dr Bisht’s reports are both favourable to him. His evidence is that the applicant has an incapacity on the basis of his psychological condition. It is apparent that the respondent did not tell him it had accepted the claim for plantar fasciitis.
The applicant submits that, on the basis of his psychological condition alone, he is fit for only 16 hours work a week. He now has back and ankle symptoms. The restrictions imposed by Dr Bisht are very important restrictions on employment. He submits that he is effectively unfit for any employment. On the respondent’s own evidence, he is not fit to work for the respondent.
As regards the evidence of Ms Kurta, the applicant submits that I am being asked to consider that he could work for 16 hours a week. There is no information as to what Ms Kurta was told. She did not have the treating doctors’ or Dr Bisht’s reports (Ms Kurta did in fact have Dr Bisht’s second report). Each of the options would require the applicant to engage in activities Dr Bisht opined he would have to avoid, and physical activities he could not do. None of the jobs is suitable, on the basis of his psychological condition alone. His physical incapacity is such that he is unfit for any employment.
The applicant finally submits that Dr Smith is on his own, but there is no reasoning by which I could find he came to that conclusion. The applicant has been totally incapacitated for work since 15 May 2020.
In reply to the respondent, the applicant submits that what Dr Smith actually said was that the condition usually gets better after two years and treatment does not always work. His condition commenced in about March 2019 and liability was disputed 12 months after the injury.
The applicant submits that Dr Smith did not say he was symptom-free, but that he had “bizarre” symptoms. He conceded that the applicant had plantar fasciitis and was symptomatic while on his feet. He could not have manufactured wasting of the left calf, which both Dr Smith and Dr Bodel found. Dr Smith did not say to what the wasting related if it was not plantar fasciitis.
The applicant submits that he is not required to explain the deterioration in his condition. His claim is from May 2020; and he needs to convince me of incapacity since that date. What happened before that does not assist in that decision.

Respondent

The respondent submits that Dr Smith’s impression is not different from that of Dr Bodel in that the applicant requires a better treatment plan. There is no material to explain his deterioration since May 2020. His total incapacity coincided with the notice that compensation was to cease. The applicant reacted to attempts to rehabilitate him back into employment. He has actively resisted this.
The respondent submits that the applicant did not mention his trip to Lebanon in his statement. There is a lack of explanation for how it came about, given that he cannot stand for 5 minutes or sit for 10.
The respondent further submits that there is no medical reason that discloses the diagnosis of the applicant’s back. There is a complaint of pain.
The respondent submits that Dr Smith opined that the most efficient form of treatment is exercise; and both he and Dr Bodel refer to them.
The respondent submits that the applicant is unwilling to accept responsibility for his condition and blames everyone else. There is no information about how he got to Lebanon, as he would have to walk around the airport, and on and off planes. There is no evidence of any attempts to find work. The applicant has clerical experience.
It is arguable that section 32A of the 1987 Act excludes from consideration the fact that the applicant cannot walk to the train, as it excludes consideration of his place of residence. It therefore excludes the need to reach public transport from his residence.
The respondent submits that the applicant relies in part on Dr Moses’ evidence. Dr Moses relied on the applicant’s self-reporting, with no way of verifying it. Dr Smith did not accept the applicant and described his bizarre presentation. The applicant has been off his feet for two years and has deteriorated without explanation.
The respondent submits that it has made a considerable effort to return the applicant to work but has been stymied by him. His GP recommended on 10 April 2019 that he return to work for two to four hours a day. She did not recommend that he not return to work.
The respondent submits that there is no evidence of the extent to which the applicant has attempted exercises. As his own doctor said, it was unusual that he had made no progress, so it could fairly be inferred they were not done. This may be why Dr Bodel recommended a better treatment plan. The “normal” recovery period is two years. If the applicant has not recovered, it may be related to some other condition and not to his work.
As regards section 32A of the 1987 Act, the respondent relies on the applicant’s clerical background and rehabilitation attempts. There are work options available and the respondent would accommodate the need for him to sit or stand at will. If he has four bad days a week, does this imply that he has three good days when he could work?
The applicant was worried about what people would think of his psychological condition. The respondent submits this is not work related. There is no explanation for his deterioration other than his wilfulness and unwillingness to return to work/suitable duties.
The respondent finally submits that the applicant has capacity to work three days a week, which is roughly one-half capacity. There is a wide range of duties available to him; and it relies on Ms Kurta’s report.

SUMMARY

The only issue in this matter is the applicant’s work capacity from 15 May 2020. The respondent’s counsel described the issue as “pure and simply” incapacity.
There is therefore no dispute that the applicant sustained injury to his left heel (plantar fasciitis), both legs and a consequential condition of his lower back arising out of or in the course of his employment with the respondent, the injury deemed to have occurred on 27 March 2019. There is also no dispute that the applicant has sustained a secondary psychiatric/psychological injury as a result of his physical injuries.
The applicant submits that he has had no work capacity from 15 May 2020; and seeks an award of weekly benefits on this basis.
The respondent submits that the applicant has had work capacity from 15 May 2020; that he could work approximately 50% of the working week; and that there is a wide range of duties available to him.
Section 32A of the 1987 Act provides:

“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.

In the matter of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, Deputy President Roche said [at 47]:

“The new provisions require a determination of whether a worker has a ‘current work capacity’ or ‘no current work capacity’. A ‘current work capacity’ is ‘an inability arising from an injury such that a worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.”
Roche DP said [at 58]:

“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’” (emphasis in original).
Roche DP also said [at 63]:

“Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPCArdmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’…”
The first issue to be determined is whether the applicant is able to return to his pre-injury employment. If he is not able to do so, it must then be determined whether he has “no current work capacity”, or “current work capacity”, by reference to section 32A, which defines suitable employment.
The applicant in this matter has both physical injuries and a psychiatric/psychological condition that is secondary to those injuries. The respondent has not disputed that he has developed a consequential condition of his lumbar spine as a result of the accepted injury to his left foot.
The weight of the medical evidence leads to the conclusion that the applicant is not able to return to his pre-injury duties, which involved him standing for long periods. He is supported in this by Dr Mapa, Dr Moses, Dr Ian Smith (who suggested he could perform sedentary work), Dr Bodel, and inferentially by Dr Chang, who opined that his condition had failed to respond to treatment and he may need PRP injection to return to “baseline function”.
I have found Dr Anthony Smith’s reports of little assistance. He accepted that the applicant had left plantar fasciitis, but “it is not really an injury”. Given that injury is conceded, that is not an issue I am required to determine. Dr Smith went on to say that the problem is that there is pain whenever someone with this condition weight-bears, which is precisely what the applicant was required to do in his pre-injury employment.

The applicant’s evidence, which I accept, is that he worked 10 to 12 hour shifts that entailed considerable standing. Ms Tarraf’s evidence is that he was moved to the day shift, which reduced the time he was required to stand to four hours. That necessarily means he was previously required to stand for more than four hours. Four hours is still a considerable amount of time for the applicant to stand.
Dr Smith opined in his report dated 2 April 2020 that the applicant was fit for work, at the same time stating that he “may be able to work quite well” if an exercise program were implemented (emphasis added). In his report dated 19 February 2021, Dr Smith opined that from an orthopaedic point of view, the applicant was fit to work. He did not say for what type of work the applicant was fit. If he was suggesting that the applicant was fit for his pre-injury duties, I do not accept his evidence.
While Ms Tarraf has given evidence that the respondent could provide the applicant with duties that are “within his medical restrictions”, Dr Bisht has opined that he is unable to work for the respondent, as a result of his psychological condition. As the applicant submits, her evidence regarding the position in 2019 has no relevance to the claim he is now making.
I find that the applicant has at no time since 15 May 2020 been fit for his pre-injury employment, as a result of his physical injuries. He has, in Dr Chang’s words, “persistent symptomatic left plantar fasciitis that has failed shockwave therapy and physiotherapy”. The fact that the usual recovery period may be two years does not mean the applicant must recover within that period.
In November 2020, Dr Bodel opined that the applicant had no capacity for work; and in March 2021, he opined that his back injury would cause difficulty standing, walking and patrolling; and the applicant would be better suited to predominantly sedentary work.
I prefer the evidence of Drs Mapa, Moses, Ian Smith, Bodel and Chang to that of Dr Anthony Smith.
Ms Chin, the applicant’s treating psychologist, while not commenting directly on his psychological fitness for work, reported that the applicant had chronic sleep issues, fatigue, memory impairment and diminished attention and concentration, which “further compromised his ability to return to work”.
Dr Bisht opined in his report dated 18 May 2020 that, from a psychological perspective, the applicant was fit to work four hours a day, five days a week, in his pre-injury role. Dr Bisht diagnosed adjustment disorder with mixed anxious and depressed mood.
However, by 11 February 2021, Dr Bisht found that the applicant’s condition had deteriorated, and he diagnosed major depressive disorder. He opined that the applicant would be able to work for four hours a day, four days a week, with restrictions. He was not able to work with the respondent.
Dr Clark agreed with Dr Bisht’s second diagnosis. He opined in August 2020 that the applicant was “incapable of useful work”. His psychiatric impairment was at least 50% responsible for his incapacity for work.
The applicant’s psychological condition would also, in my view, prevent him from returning to his pre-injury employment, even if his physical injuries did not. I will discuss this issue below.
Having determined that the applicant is not able to return to his pre-injury employment, I must determine whether he has “current work capacity”, such that he is able to return to work in suitable employment. The matters I am to take into account are those listed in section 32A(a) of the 1987 Act, regardless of the matters listed in section 32A(b) of the Act.
The medical evidence is discussed above. The applicant has been certified by his GP as having no work capacity at all relevant times. He is unable to perform work that requires him to stand for any length of time. In April 2020, Dr Moses opined that he was clearly unable to perform his normal duties due to pain. There is evidence that the applicant’s condition has since deteriorated.
The result of the applicant’s physical injuries is that he would be able to perform only sedentary work.
The Labour Market Analysis Report prepared by Ms Kurta identified sedentary occupations that were regarded as suitable for the applicant. Mr Saade’s diagnosis is recorded as “‘L Sided Plantar Fasciitis’ as stipulated on SNP Return to Work Plan dated 22.5.2019”.
The only documents recorded by Ms Kurta as being available to her are the Return to Work Plan dated 22 May 2019, Dr Ian Smith’s report and Dr Bisht’s report dated 11 February 2021.
Ms Kurta concluded that suitable options for the applicant were alarm, security and surveillance monitor; information officer; and call centre operator.
The physical demands of the position of alarm, security and surveillance monitor may be summarised as sedentary to light; constantly sitting; and frequent repetitive movements. The cognitive demands may be summarised as communication; organisation; analysis; and decision-making skills.
The physical demands of the position of information officer may be summarised as sedentary; constantly sitting; occasional to frequent standing; repetitive arm, hand and finger movements; frequent use of objects such as pens, calculators, staplers, computers and telephones; and operation of printers, copiers and other office equipment. The cognitive demands may be summarised as sound recording, organisation and communication skills.
The physical demands of the position of call centre operator may be summarised as sedentary; constant sitting; occasional standing and walking about the office; repetitive and constant arm, hand and finger movements; and frequent use of objects, as required by the position of information officer. The cognitive demands are the same as those for an information officer.
Ms Kurta contacted two prospective employers in the position of alarm, security and surveillance monitor. They advised that some of the skills required were to sit for up to eight hours (although alternating from sitting to standing was permitted); report-writing ability; accuracy and attention to detail; interpersonal and communication skills; ability to focus on CCTV screens for long periods; and excellent verbal and written communication.
Ms Kurta also contacted two prospective employers in the position of information officer. They advised that some of the skills required were occasionally working with distressed and unpredictable people; ability to communicate; ability to work autonomously; excellent communication skills; ability to multi-task; excellent attention to detail; and excellent customer service skills.
Finally, Ms Kurta contacted two prospective employers in the position of call centre operator. They advised that some of the skills required were previous experience in a high-volume customer service environment (desirable, but training was provided); professional and confident, with a customer service focus/excellent customer service skills; impeccable/excellent communication skills (verbal and written); superior organisational skills; ability to multi-task and prioritise; positive and resilient outlook; problem-solving and investigative skills; ability to interact with multiple people at one time; and good attention to detail.
The applicant and his wife have given evidence about his psychological symptoms. Their evidence is supported by the medical evidence, including that of Dr Bisht, who was qualified by the respondent, and I accept it.
Mr Saade’s evidence is that he lacks concentration and patience. He used to be motivated and sociable, but that is no longer the case.
Ms Saade’s evidence is that the applicant has higher levels of frustration, stress and agitation. He has withdrawn from leaving home or associating with relatives or friends. He is severely depressed, anxious and angry.
The medical evidence is that the applicant’s psychological condition causes symptoms such as sleep disturbance, causing fatigue during the day; reduced concentration; irritability with only minor provocation; lack of desire to interact with others; anger; heart palpitations; nausea; difficulty breathing; and feeling worthless. All his relationships have become strained.
The employment options identified by Ms Kurta appear to overlook the applicant’s significant psychological symptoms. Even if he were to be successful in obtaining employment, I do not accept that he has the capacity to perform the activities required in those positions, having regard to the provisions of section 32A.
All the identified positions involve customer service; interpersonal skills; and interaction with the public. The applicant has withdrawn from personal contact and is angry and impatient even with his own family.
The positions require such skills as attention to detail; the ability to multi-task and prioritise; problem solving; organisational skills; and resilience and positivity. The position of information officer may require working with distressed and unpredictable people. I would accept that may also be a requirement of a call centre operator.
Dr Bisht opined that the applicant could work for 16 hours a week, in a job that did not require him to interact with unfamiliar people; make complex decisions; or sustain intense concentration for long periods. All the suggested occupations require these skills. The applicant would obviously be unable to focus on a CCTV screen for eight hours at a time.
The applicant has a varied occupational background, and has customer service skills, having worked in retail and in a casino, as well as in security. He commenced, but did not complete, a law degree in Lebanon. He is 49 years old. It would be expected that he would therefore have current work capacity. However, he has unfortunately developed a severe psychological condition that incapacitates him for the very type of sedentary work his physical injuries would require him to seek. Any customer service position would require him to interact with unfamiliar people, potentially make complex decisions and multi-task, and maintain his concentration, even in a part-time position.
There is no evidence of any recent return to work plans or occupational rehabilitation services that are to be taken into account in determining whether the applicant has current work capacity.
Taking into account the evidence of the applicant, his wife and the medical evidence, I am satisfied that the applicant has had no current work capacity since 15 May 2020.
The parties have agreed that the applicant’s PIAWE were $1,309.39. The claim for weekly benefits falls with the second entitlement period, pursuant to section 37 of the 1987 Act. The weekly benefit payable is therefore $1,309.39 x 80% = $1,047.51 per week.
There will accordingly be an award for the applicant, pursuant to section 37 of the 1987 Act, at the rate of $1,047.51 per week from 15 May 2020 to date and continuing.

Kerry Haddock
MEMBER

30 March 2021