Sanfilippo v Plasser Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Sanfilippo v Plasser Australia Pty Ltd [2023] NSWPIC 235
APPLICANT:	Cosimo Sanfilippo
RESPONDENT:	Plasser Australia Pty Ltd
Member:	John Turner
DATE OF DECISION:	24 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 32A and 37 and Schedule 3, clause 9; applicant disputed work capacity assessment which assessed him with the capacity to work 12 hours per week as a stationary machine operator; “suitable employment”; Wollongong Nursing Home v Deware, Giankos v SPC Ardmona Operations Ltd, Jones v Dunkel, McCabe Terrill Lawyers v A, Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart and Ric Developments t/as Lane Cove Poolmart v Muir applied; Held – the applicant does not have the current work capacity to work as a stationary machine operator and has not had such a current work capacity since 21 June 2022; the applicant has no current work capacity and has had no current work capacity since 21 June 2022.
determinations made:	1. That the applicant does not have the current work capacity to work as a stationary machine operator and has not had such a current work capacity since 21 June 2022. 2. That the applicant has no current work capacity and has had no current work capacity since 21 June 2022. 3. That there is an award for the applicant for weekly benefits as follows: a. $1,458.83 per week from 21 June 2022 to 30 September 2022, pursuant to s 37 of the Workers Compensation Act 1987; b. $1,508 per week from 1 October 2022 to 31 March 2023, pursuant to s 37 of the Workers Compensation Act 1987, and c. $1,570.42 per week from 1 April 2023 to date and continuing, pursuant to s 37 of the Workers Compensation Act 1987. 4. The respondent is to have credit for weekly payments paid.

STATEMENT OF REASONS

BACKGROUND

Cosimo Sanfilippo, the applicant, was employed by Plasser Australia Pty Ltd, the respondent as a welder and boilermaker. The applicant recommenced employment with the respondent in or about June 2019 having previously been employed by them. The applicant’s work duties with the respondent included the repetitive use of grinders. The applicant has worked as a welder, steel fabricator and / or boilermaker for in excess of 30 years.
In the course of his employment with the respondent the applicant noted a pins and needles sensation in both hands which was increasing in severity. The applicant reported the condition to the respondent on or about 6 June 2020. The applicant was diagnosed with bilateral carpal tunnel syndrome.
The applicant made a workers compensation claim in respect to the bilateral carpal tunnel condition for which liability has been accepted. Payments of workers compensation benefits have been made including the payment of weekly benefits compensation.
Whilst in the course of his employment with the respondent on 7 July 2020 the applicant sustained further injury when he tripped and fell. The injuries sustained in the fall included injuries to his right shoulder and neck. The applicant made a separate workers compensation claim in respect to injury sustained in the fall on 7 July 2020 in respect to which liability was accepted and workers compensation benefits paid. On or about 10 January 2023 payments of weekly benefits compensation ceased in respect to injury sustained in the fall on
7 July 2020.
On or about 10 September 2020 A/Prof Bokor, orthopaedic surgeon, performed a surgical repair of the right shoulder rotator cuff due to injury sustained on 7 July 2020. The applicant has not returned to any form of employment since undergoing the right shoulder surgery.
On or about 27 September 2021 Dr Manish Gupta, orthopaedic surgeon, performed left carpal tunnel release surgery.
In respect to the bilateral carpal tunnel syndrome injuries deemed to have been sustained on 6 June 2020 a work capacity decision made on 10 March 2022 assessed the applicant as having the capacity to work in suitable employment four hours per day, three days per week. The occupations of product assembler, packer and stationary machine operator were identified as suitable employment and the occupation of stationary machine operator was identified as the best job match. It was assessed that the applicant could earn $366 per week, working 12 hours as a stationary machine operator. The applicant’s payments of weekly benefits compensation were reduced from 21 June 2022 on the basis that the applicant could earn $366 per week working as a stationary machine operator.
The applicant has brought proceedings in the Personal Injury Commission (the Commission) in respect to the injury sustained to both upper limbs in the form of bilateral carpal tunnel syndrome with a deemed date of injury of 6 June 2020. The applicant seeks payments of weekly benefits compensation pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) on the basis that he has had no current work capacity from 21 June 2022 to date and continuing.

ISSUES FOR DETERMINATION

There is no dispute that the applicant has suffered injury to both his upper limbs in the form of bilateral carpal tunnel syndrome due to the nature and conditions of his employment which included the use of grinders.
The parties have agreed the applicant’s pre-injury average weekly earnings (PIAWE) at $1,720.
The parties agree that the following issue remains in dispute:
(a) whether the applicant has the capacity to performed paid employment four hours, per day, three days per week to earn $366 per week as assessed by the work capacity decision of 10 March 2022.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
27 April 2023. Mr Greg Horan, counsel, appeared for the applicant, who was present.
Mr Tom Grimes, counsel, appeared for the respondent. The proceedings were conducted in-person. 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 to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents filed on behalf of the applicant dated 14 April 2023, and
(d)    documents attached to an Application to Admit Late Documents filed on behalf of the respondent dated 17 April 2023.
Also before the Commission were wages schedules filed on behalf of both the applicant and the respondent.
Both Applications to Admit Late Documents were admitted into evidence without objection.

Oral evidence

Neither party sought to adduce oral evidence.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

Applicant’s submissions

In summary it was submitted on behalf of the applicant that the real issue is the validity of the work capacity decision which was made by the insurer 10 March 2022.
The applicant submitted that the respondent in assessing that the applicant could perform the duties of a stationary machine operator for 12 hours per week had relied on an opinion of the applicant’s general practitioner (GP), Dr Al Faruque. On 2 March 2022 Dr Al Faruque completed a pro forma form which requested his opinion as to the applicant’s capacity to perform three vocational options being product assembler, packer and stationary machine operator. The doctor did not give approval to the role of product assembler. Whilst the doctor did approve the role of packer, he qualified his approval by indicating that the applicant had a lifting limit of under 8kg and not above shoulder height. The doctor approved the vocational option of stationary machine operator by ticking the “yes” box.
The applicant submitted that the physical demands identified for the vocational option of stationary machine operator in the referral to Dr Al Faruque materially differ from those identified in the vocational assessment report in that the referral to Dr Al Faruque described the physical demands as ‘light’. Whilst the vocational assessment report describes the physical demands as ‘medium’. In the applicant’s submission this is a material difference in the description of the physical demands and Dr Al Faruque has not signed off on a role for which he has been provided with the accurate physical demands of the job.
It was submitted on behalf of the applicant that the applicant did not have a proper understanding of the duties of a stationary machine operator when at [29] of his statement he stated that he could physically manage the job of stationary machine operator. It was observed on behalf of the applicant that the applicant states in respect to the standing machine operator role “I have been told it will literally be to push a button”. It was submitted that the physical demands of the standing machine operator role identified in the vocational assessment report are much more extensive than those to which the applicant refers to in his statement and the physical demands of the role are not limited to just using his right hand/fingers to push a button.
In respect to the opinion of Dr Al Faruque of 2 March 2022 in respect to the applicant’s capacity to perform the vocational option of stationary machine operator, the applicant submitted that given the brevity of the doctor’s response, being just the ticking of a box, there is no basis or reasons set out by the doctor for his opinion. The applicant submits that the doctor’s opinion as a piece of evidence is of very limited assistance.
The applicant submitted that saying yes to the vocational option of stationary machine operator does not make sense when the physical demands identified require the repetitive use of the hands and arms for carrying, constant handling of materials, the stretching up and across and the twisting of the neck. The applicant submitted that the medical reports of A/Prof Courtenay and Dr New cast real doubt as to the capacity of the applicant to perform the physical demands of the role in respect to his hands, arms and neck.
It was observed on behalf of the applicant that Dr New, having diagnosed bilateral carpal tunnel syndrome, right shoulder condition and cervical spondylosis, says that the applicant is not capable of pre-injury employment and at age 66 should be medically retired.
It was also observed that A/Prof Courtenay in his report of 7 September 2021 notes the history of the onset of the carpal tunnel syndrome symptoms and then the subsequent fall in July 2020 with right shoulder reconstruction. It was submitted that it is A/Prof Courtenay’s evidence that if the applicant uses his hand even for short period’s he gets numbness in the hand, thumb, index finger and part of the middle finger, pain, waking at night and that the applicant has difficulty writing. The doctor recommended bilateral surgical releases. It was noted that A/Prof Courtenay wasn’t asked and doesn’t give an opinion as to work capacity.
It was observed on behalf of the applicant that A/Prof Courtenay in a second report dated
7 July 2022 records that subsequent the left carpal tunnel release surgery the applicant gave a history of ongoing problems noting persistent wasting of the left carpal tunnel which he suspected to be permanent. He did record that the right hand was doing very well. It was noted that A/Prof Courtenay was again not asked to give an opinion as to fitness for work.
The applicant submitted that the certificates of capacity do not take the evidence much further assessing that the applicant has some capacity for 12 hours per week with restrictions but do not go any further.
It was submitted on behalf of the applicant that the respondent is asking for a work capacity decision to be confirmed which is based on one tick a box report from the GP, Dr Al Faruque, which is based on a patently wrong assumption as to the physical demands of the role of stationary machine operator that being ‘light’ instead of ‘medium’ physical demands and that lists a whole host of duties and demands which as a matter of common sense one would question the ability of a 66 now 67 year old man with bilateral carpal tunnel syndrome, a right shoulder condition and neck problems to able to do.
It was observed on behalf of the applicant that the vocational assessment report records that three potential employers were contacted. The three employers are East Coast Canning, Austral Wire and APG Workforce. It was noted that the work capacity decision had adopted the rate of pay $30.50 per hour for the position of stationary machine operator obtained from Austral Wire with the other two employers having slightly lower rates of pay.
The applicant observed that when the three employers were contacted as to the applicant’s suitability for the role of stationary machine operator they were given a set of assumptions as to the applicant’s physical restrictions which included that he was not to use his left hand as it was affected by carpal tunnel syndrome and that he was not able to push and pull using his right hand which possibly relates to the right side carpal tunnel syndrome and possibly to the right shoulder injury. The applicant observed that despite those assumptions the evidence is that all three employers considered the applicant to be highly suited and someone who would be highly considered for a part-time role 12 hours per week.
In the applicant’s submission the evidence contained in the vocational assessment report is not sufficient to be satisfied that these employers have been given a full and comprehensive picture of the applicant’s medical condition and that the evidence is full and thorough in respect to the response given by the employers. In the applicant’s submission it “beggars belief” that all three employers when approached by a rehabilitation expert and given some brief assumed facts, facts that one would think given the physical demands identified in the vocational assessment for a stationary machine operator, could all conclude that the applicant would be highly considered for the role despite not being able to use his left arm at all in the performance of any work duties as well as having problems on the right side.
The applicant submitted that we do not know whether these employers were told that it was a bilateral carpal tunnel syndrome or that it only affected the left side, whether the full extent of the incapacity due to the right shoulder and neck conditions was properly put to the employers.
In the applicant’s submission as a matter of common sense given that all three employers have come to the conclusion that the applicant is someone who would be highly considered for the respective roles one would not be satisfied that a proper account of the applicant’s medical circumstances had been put to the employers.
The applicant relying on the decision in Wollongong Nursing Home v Deware[1] (Deware) submitted that the task for the Commission is to identify if there are any ‘real jobs’ having regard to s 32A(a) of the 1987 Act.
[1] [2014] NSWWCCPD 55.
The applicant submits that a 12 hour a week stationary machine operator role is not suitable employment and that the jobs identified in the vocational assessment report are not real jobs for the applicant. That the applicant has not had a work trial in respect to any of those jobs.
The applicant referred to the decision in the matter of Giankos v SPC Ardmona Operations Ltd[2] as authority for the proposition that caution is to be applied to medical opinions as to whether a worker is able to do a particular job. That medical opinion should focus on the physical restrictions rather than if a worker is able to do a potential job. Except where the medical practitioner has specialist occupational health and safety experience the medical opinion should be treated with caution as to the answering of that question. The applicant submitted that we do not know if the GP, Dr Al Faruque, has specialist vocational assessment or occupational health and safety experience.
[2] (2011) 34 VR 120; 206 IR 338; [2011] VSCA 121; BC201102758.
It is the applicant’s understanding that all material times to 10 January 2023 the applicant was being paid weekly benefits payments in respect to the injury sustained to the right shoulder on 7 July 2020 at $673.33. Concurrently in respect to the subject carpal tunnel injury claim the applicant was being paid weekly benefits in the amount of $650.67. Since
10 January 2023 the applicant has been in receipt of weekly payments of compensation of $1,010 gross per week in respect to the subject carpal tunnel syndrome injuries.
It is the applicant’s understanding that in the relevant period prior to 10 January 2023 the combined total of the weekly benefits compensation being paid to the applicant of $1,324 per week took into account the work capacity decision finding that the applicant could earn $366 per week. The applicant submitted that the insurer appears to have agreed that the applicant is entitled to 100% of the PIAWE, minus the deduction for the assessment that the applicant was able to earn $366 per week, when the applicant was receiving the concurrent payments however with payment for the single injury the applicant is only entitled to 80% of the PIAWE if totally incapacitated. The respondent agreed with this summary.

Respondent’s submissions

The respondent submitted that the Application to Resolve a Dispute (ARD) filed by the applicant only deals with the carpal tunnel syndromes, there is no pleading of a secondary psychological condition that would allow a finding of additional incapacity based on psychological injury. This, the respondent submitted, is important as the applicant states in respect to the position of stationary machine operator that he could manage the job physically but that the job stresses him out. That the thought of going back to work is stressing him out and that he had been telling his doctor about all the stress from his injury. In the respondent’s submission any alleged psychological symptoms or injury that is preventing the applicant from performing the occupation of stationary machine operator is not pleaded and there is also no evidence to support incapacity on that basis.
The respondent observed that the applicant has attempted to explain away his evidence that he could physically do the job of stationary machine operator. The respondent submitted that the applicant’s statement was presumably made after the applicant had instructed his lawyers and certainly after the work capacity decision had been issued on 10 March 2022. The respondent submitted that the applicant had five months, probably with the assistance of lawyers, in which to review the contents of the work capacity decision and the documents attached to it to make a supplementary statement correcting his evidence that he could physically do the job but has not done so. The respondent also observed that at the time of the filling of the ARD the applicant was certainly in the hands of his lawyers but has not filed a supplementary statement resiling from his evidence.
The respondent submitted in respect to the opinion from Dr Al Faruque agreeing that the applicant could perform the job of stationary machine operator, that if in fact the doctor had not properly considered the duties, one would have thought that since the applicant has been in the hands of lawyers a further report would have been obtained from the doctor providing a more detailed opinion as to the suitability of the identified job option. However, this has not been done.

The respondent submitted that the certificate of capacity is dated 13 January 2022 is in accordance with the work capacity decision certifying the applicant fit for suitable duties four hours per day, three days per week with an 8kg lifting restriction. The certificate places no restrictions on sitting, standing, bending and squatting. The respondent submitted that these restrictions are the same as those put to three employers by the vocational assessor. The respondent submitted that there is nothing from Dr Al Faruque from the date of the work capacity decision to refute that certificate of capacity. The respondent submitted that if in fact Dr Al Faruque did not think that the applicant could perform the duties of a stationary machine operator one would have thought a subsequent certificate or opinion would have been provided by the doctor. The respondent also noted that there were no clinical notes from Dr Al Faruque after 24 January 2022. The respondent requested that a Jones v Dunkel[3] inference be drawn in the absence of that evidence.
[3] (1959) 101 CLR 298; [1959] ALR 367.
The respondent observed that the applicant made a number of criticisms in respect to the vocational report prepared by Ms Boggian. The respondent submitted in respect to there being no plausible employer who could certify the applicant for 12 hours per week for a stationary machine operator role that not only does the applicant agree that he can do the job there is an absence of a certificate of capacity or the notes from Dr Al Faruque. It was also submitted that there was no attempt to cross-examine Ms Boggian, no attempt to issue a Notice for Production on Ms Boggian for primary documents relating to her inquiries with the employers, there is no competing functional or vocational assessment provided in the applicant’s case, there has been no report researching if the applicant’s physical restrictions would be acceptable to those employers or other employers in a stationary machine operator role. The absence of such evidence in the respondent’s submission is glaring.

The respondent observed that the orthopaedic surgeon, Dr New, who had provided the applicant with a medico-legal report has given an opinion that the applicant is not capable of reprising his pre-injury employment and at 66 years of age should be medically retired. The respondent submitted that the opinion of Dr New does not travers the work capacity decision, the functional and vocational assessments, the opinion of Dr Al Faruque that the applicant has the capacity for the stationary machine operator role or the certificate of capacity certification that he could work 12 hours per week with relevant restrictions.
The respondent observed that Dr New is of the opinion that the applicant’s long-term prognosis is guarded particularly in respect to his shoulder and cervical spine. He has ongoing pain in his left knee. Dr New was of the opinion that the applicant had a very good result from the left carpal tunnel surgery. No surgery is required on the right carpal tunnel.
Dr New is of the opinion that the long term prognosis is good in respect to both of the carpal tunnels. The respondent submits that the evidence of Dr New is that the applicant has functional hands subsequent to the left carpal tunnel surgery.
The respondent observed that A/Prof Courtenay examined the applicant on 23 June 2022, which is shortly after the commencement of the period for which weekly benefits compensation are claimed in these proceedings. The respondent observed that
A/Prof Courtenay recorded in his report dated 7 July 2022 that the applicant was continuing to exercise with an exercise physiologist and was attending the gym, was taking minimal medication being just occasional over the counter analgesics and Panadol. The applicant reported that he has a rowing machine at home which he finds good for his legs. The respondent submits that if the applicant can use a rowing machine he can work 12 hours per week as a stationary machine operator.
In the respondent’s submission all that evidence supports the work capacity decision.
The respondent observed that Dr Gupta, the treating orthopaedic surgeon, reported on
23 March 2022 that the applicant had undergone successful carpal tunnel surgery. In the presence of a good outcome from the carpal tunnel surgery Dr Gupta was happy to discharge the applicant from his care. The doctor was of the opinion that a gradual, gentle return to work was a good approach.
The respondent submits that not only is there no competing evidence from the applicant by way of a functional and vocational assessment, but Dr Al Faruque agrees that the applicant could do the duties of a stationary machine operator and the applicant in his statement also agrees that he could. That there is no disputing IME evidence. That the treating surgeon supports a return to work.
The respondent submits that it is important to note that the applicant is right hand dominant and that both Dr New and A/Prof Courtenay assessed in respect to the right carpal tunnel condition 0% whole person impairment (WPI) noting that the symptoms had resolved. In respect to the left carpal tunnel condition Dr New assessed an impairment of 23% WPI which in the respondent’s submission is quite extraordinary for a single left carpal tunnel injury which has been surgically repaired, and in the opinion of the treating surgeon, Dr Gupta, surgically repaired well. In the respondent’s submission that evidence supports that the applicant has the ability to perform the duties outlined in the work capacity assessment.
In respect to the opinion of Dr Al Faruque dated 2 March 2022 that the applicant could perform the duties of a stationary machine operator. The respondent submits that the only discrepancy in the description of the duties between the vocational assessment and the referral to Dr Al Faruque is the difference between ‘light’ and ‘medium’ in the description of the physical demand. There are 11 further bullet points describing the vocational duties of a stationary machine operator which are identical in the two documents. In the respondent’s submission if the difference in the description between ‘light’ and ‘medium’ was a significant issue in the applicant’s dispute with the work capacity decision one would have thought that Dr Al Faruque would have provided an updated opinion.
The applicant submits that the functional capacity assessment found that the applicant was able to perform all assessed tasks except reaching forward with his hands in an overhead position whilst the vocational assessment report when recording the impact of the applicant’s disabilities records, in the applicant’s submission, very few restrictions.
The respondent submitted that the functional and vocational assessments are well considered and consistent with the certificate of capacity, that the applicant’s GP has agreed that the applicant could perform the job of stationary machine operator, that there is no competing evidence from a functional and vocational assessor, no evidence from Dr New traversing the opinion or disagreeing with it, that Dr Gupta supports a return to work and that A/Prof Courtenay’s most recent report indicates significant functionality of the hands which is in line with the applicant’s ability to do the job of stationary machine operator only three hours per day,four days per week.
In the respondent’s submission the work capacity decision should be upheld with a finding that the applicant has the capacity to do the job of stationary machine operator 12 hours per week earning $366 per week.
The respondent had no comment in respect to the effects of the weekly benefits compensation paid for the right shoulder injury on 7 July 2020 during the period for which weekly benefits are being claimed in this matter.

Applicant’s submissions in reply

The applicant submitted that the respondent’s submissions that various Jones v Dunkel should be drawn should be rejected. In the applicant’s submission a Jones v Dunkel inference can only be made when there is evidence of a document or other evidence which is not produced and there is no such evidence of any such documents that have not been produced.
The applicant submitted that the respondent was dismissive of the evidence of Dr New that the applicant should be medically retired. In the applicant’s submission that evidence whilst general in nature is definitive. That the opinion of Dr New is in clear contradiction to the proposition that the role of stationary machine operator 12 hours per week basis is suitable employment for the applicant.

FINDINGS AND REASONS

It is not disputed that the applicant sustained injury to both his upper limbs, in the form of carpal tunnel syndromes, as a result of the nature and conditions of his employment with the respondent which included the use of grinders.
On 10 March 2022 a work capacity decision assessed the applicant as having the capacity to work in suitable employment four hours per day, three days per week. The occupations of product assembler, packer and stationary machine operator were identified as suitable employment and the occupation of stationary machine operator was identified as the best job match. The payments of weekly benefits compensation to the applicant were reduced on
21 June 2022 on the basis that the applicant could earn $366 per week working 12 hours per week as a stationary machine operator.
The applicant disputes that he is capable of performing the duties of a stationary machine operator 12 hours per week.
Clause 9 of Schedule 3 of the 1987 Act defines ‘current work capacity’ and ‘no current work capacity’ 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.”
Section 32A(a) of the 1987 Act relevantly defines ‘suitable employment’ in relation to a worker 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,..”

Incapacity and the degree thereof is a question of fact and, on the determination of a fact, opinion evidence is admissible if it is expert. Expert evidence is an important (often critical) part of the evidence on the issue but is not the only evidence relevant to the determination.[4]
[4] McCabe Terrill Lawyers v A [2009] NSWWCCPD 46.
In Dewar it was observed at [59] that ‘suitable employment’ must refer to a real job in employment for which the worker is suited. The determination of what is ‘suitable employment’ is a practical exercise conducted having regard to the factors noted in the definition of ‘suitable employment’ in s 32A. At [63] the process of determining ‘suitable employment’ is summarised as follows:
“the task requires the identification of whether there are any “real jobs” (Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; 206 IR 338; [2011] VSCA 121; BC201102758 at [102]) which having regard to the matters, in subs (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’.”
It was submitted on behalf of the applicant that the insurer in assessing the applicant as being fit to perform the duties of a stationary machine operator has relied on the approval of the role by the applicant’s GP, Dr Mohammad Al Faruque, on 2 March 2022.
The applicant submits that the physical demands of the position of stationary machine operator which were put to Dr Al Faruque with the request to review the suitability for the role does not match the physical demands identified by the rehabilitation counsellor, Ms Joanne Boggian, in her vocational assessment report dated 3 December 2022. In particular the level of physical demand of the role was described as ‘medium’ [5] in the vocational assessment report whilst the physical demand level was described in the referral to Dr Al Faruque as ‘light’.[6] The applicant concedes that apart from the difference between ‘light’ and ‘medium’ physical demands the remainder of the physical demands described to Dr Al Faruque are identical to those identified by Ms Boggian in the vocational assessment report.
[5] ARD p 61.
[6] ARD p 38.
The applicant submits that there is a material difference in the physical demands assumption that Dr Al Faruque was asked to give his consent to, and the physical demands set out for that occupation of stationary machine operator by Ms Boggian in the vocational assessment report. The applicant submits that Dr Al Faruque has not signed off on a role for which he has been provided with the accurate demands of the job.
On 2 March 2022, Dr Al Faruque, completed a review of the three vocational options identified by Ms Boggian. The document requesting the review included “..the basic description of duties, as well as the physical demands of the roles”.[7] The doctor was to tick ‘yes’ or ‘no’ as to whether he agreed with the suggested vocational options and if he did not agree he was provided with a line on which to explain his reasons for not agreeing. The occupations which the doctor was to review had been identified in the vocational assessment report of Ms Boggian.
[7] ARD p 37.
Dr Al Faruque did not agree with the vocational option of product assembler recording that the applicant is not able to use grinding instruments. Whilst Dr Al Faruque agreed with the vocational option of packer, he qualified his approval by identifying a lifting restriction of under 8kg and not above shoulder height.
In respect to the third option of stationary machine operator Dr Al Faruque indicated his agreement with that vocational option by ticking the ‘yes’ box.
The physical demands for the position of stationary machine operator in the letter to Dr Al Faruque were described as follows:
(a)    light physical demand levels;
(b)    frequently stands on factory floors which are usually concrete and may walk about the factory floor to operate a variety of machines, collect resources and sort products;
(c)    stretches up and across on an occasional basis when loading items into machines, carrying out inspections of finished products and machinery;
(d)    squatting, crouching and/or kneeling may be required occasionally;
(e)    twisting of the body or neck may be required occasionally;
(f)    constant handling of materials that have been treated with chemicals is possible;
(g)    lifting and carrying may be occasional to frequent and is Iikely to be up to heavy physical demand levels;
(h)    bends on a frequent basis, usually associated with picking up items;
(i)    many tasks require the repetitive use of hands and arms for carrying, lifting and loading or unloading items;
(j)    driving may be required in relation to the use of forklifts;
(k)    use is made of a range of hand tools to agitate and mix chemicals, and
(l)    mental skills necessary include knowledge of the technology and processes used and practical and technical skills.[8]
[8] ARD p 38-39.
The document also contained the following definitions:
“Sedentary
‘Applying an insignificant amount of force frequently to lift, carry, push, pull or otherwise move objects, including human body weight, or up to 5kg of force occasionally. Sedentary work requires predominantly sitting, but can entail walking or standing for short periods of time. Jobs are Sedentary if walking and standing are required only on an occasionally basis and all other sedentary criteria is adhered to.’
Light
‘Exerting up to 5kg of force frequently, up to 10kg of force occasionally, or an insignificant amount of force constantly to handle objects. Physical requirements are in greater than those for Sedentary Work. Even though the weight lifted may be only an insignificant amount, a job should be rated Light Work when:
1. Standing or walking is completed to a significant degree; or
2. Sitting is mostly completed although required pushing or pulling of arm/leg controls; or
3. The task is completed at production rate pace (repetitive movement and actions) requiring the constant handling, pushing/pulling of objects even though the weight of those objects is insignificant.’
Medium
‘Exerting 9kg to 22.7kg (20 to 50 pounds) of force occasionally, and/or 4.5kg to 11.3kg (10 to 25 pounds) of force frequently, and/or greater than negligible up to 4.5kg (10 pounds) of force constantly to move objects. Physical Demand requirements are in excess of those for Light Work’
Heavy
‘Exerting 22.7 g to 45.4kg (50 to 100 pounds) of force occasionally, and/or 11.3kg to 22.7kg (25 to 50 pounds) of force frequently, and/or 4.5kg to 9kg (10 to 20 pounds) of force constantly to move objects. Physical Demand requirements are in excess of those for Medium Work’.”[9]
[9] ARD p 39.
Ms Boggian conducted a vocational assessment of the applicant on 3 February 2022.
[10] ARD p 61.
Ms Boggian in her vocational assessment report identified three vocational options being product assembler, packer and stationary machine operator. The report identified the physical and psychological demands for each of the three vocational options identified. The physical and psychological demands identified for the occupation of stationary machine operator are identical to those recorded in the occupational review request made of Dr Al Faruque with the exception that the position is identified as having “[m]edium physical demand levels”.[10]
I accept the applicant’s submission that there is a material difference in the physical demands assumptions that Dr Al Faruque was asked to give his consent to, and the physical demands identified for that vocational option of stationary machine operator by Ms Boggian in her vocational assessment report. Due to the material difference between ‘light’ and ‘medium’ physical demands I also accept the applicant’s submission that Dr Al Faruque has not signed off on a role for which he has been provided with the accurate demands of the job.
I accept the applicant’s submissions for the following reasons. The request to Dr Al Faruque to review the identified potential vocational options is clearly based on the vocational assessment of Ms Boggian. The physical demands identified for the position of stationary machine operator do not identify the weights of the items which the applicant would be required to lift, carry, load etc. For an understanding of the weights which are required to be lifted, carried, loaded or otherwise manipulated in the course of performing the identified jobs Dr Al Faruque was provided with definitions in respect to each of the physical demand levels. The difference between the definitions for ‘light’ and ‘medium’ physical demands is significant. The definition of ‘medium’ physical demands can require the manipulation of weights that are in excess of twice that for, ‘light’ physical demands as demonstrated by the following table:

Physical Demand

Light

Medium

Occasional exertion of force

Up to 10kg

9kg to 22.7kg

Frequent exertion of force

Up to 5kg

4.5kg to 11.3kg

Constant exertion of force

Insignificant amount of force

Up to 4.5kg

Furthermore, the physical demands described to Dr Al Faruque, including the definitions, refer to the frequency which an activity may be required to be performed such as ‘constantly’, ‘frequently’, ‘occasionally’. Ms Melisa Bobanovic, occupational therapist, who conducted a functional capacity evaluation of the applicant on 8 December 2021 records in her functional capacity evaluation report dated 17 December 2021 that ‘occasionally’ means 33-66% of workday or 3-20 minutes per hour, ‘frequently’ means 33-66% of workday or 20-40 minutes per hour and ‘constantly’ means more than 66% of the workday or more than 40 minutes per hour.[11] The functional capacity evaluation of Ms Bobanovic was relied upon by Ms Boggian when conducting her vocational assessment which identified the vocational options for the applicant. Dr Al Faruque was not provided with the frequency descriptions utilised by
[11] ARD p 33.
Ms Bobanovic.
It is the applicant’s evidence at [29] of his statement made 29 August 2022 that he could physically mange the job of stationary machine operator. It is submitted on behalf of the applicant, that the applicant did not understand the physical requirements of the job when making that statement.
I accept the submission made on behalf of the applicant that in making the statement that he could physically manage the occupation of stationary machine operator he did not understand the physical requirements of the job for the following reasons. The applicant at [29] of his statement made 29 August 2022 states in respect to his understanding of the role of stationary machine operator “I have been told it will literally be to push a button”.[12]
Ms Boggian in her vocational assessment report identified the following physical demands for the role which are clearly far more onerous than simply pushing a button:
[12] ARD p 3.
(a)    frequently stands on factory floors which are usually concrete and may walk about the factory floor to operate a variety of machines, collect resources and sort products;
(b)    stretches up and across on an occasional basis when loading items into machines, carrying out inspections of finished products and machinery;
(c)    squatting, crouching and/or kneeling may be required occasionally;
(d)    twisting of the body or neck may be required occasionally;
(e)    constant handling of materials that have been treated with chemicals is possible;
(f)    lifting and carrying may be occasional to frequent and is Iikely to be up to heavy physical demand levels;
(g)    bends on a frequent basis, usually associated with picking up items;
(h)    many tasks require the repetitive use of hands and arms for carrying, lifting and loading or unloading items;
(i)    driving may be required in relation to the use of forklifts, and
(j)    use is made of a range of hand tools to agitate and mix chemicals.
The respondent submitted that the applicant could have put on a supplementary statement resiling from his evidence that he could physically perform the job of stationary machine operator but failed to do so. The applicant in his statement clearly describes his understanding of what the role of stationary machine operator entails, and as discussed above, his belief as to the physical requirements of the role significantly differs from that described in the vocational assessment. Whilst the making of a supplementary statement may have been prudent, ultimately such a supplementary statement is unnecessary given the applicants clear description as to his belief as to the physical requirements of the job.
The applicant submits that on the evidence one would not be satisfied that he could perform the occupation of stationary machine operator 12 hours per week. I accept the applicant’s submission for the following reasons.
When assessing whether a potential vocational option is ‘suitable employment’ s 32A(a) of the 1987 Act requires that regard be given to the nature of the worker’s incapacity. I am not satisfied given the applicant’s physical incapacities that the applicant has the physical capacity to perform the duties of a stationary machine operator 12 hours per week for the following reasons.
It is not disputed that the applicant suffers an incapacity as a result of the carpal tunnel syndrome injuries and does not have the capacity to perform his pre-injury duties. The applicant is in receipt of payments of weekly benefits compensation in respect to the subject injury albeit at a reduced rate.
I accept the respondent’s submission that there is no pleading and no evidence of a secondary psychological condition to support a finding of incapacity on that basis.
As noted above I do not accept that the applicant understood the duties of a stationary machine operator when he stated that he could physically manage the job. I also do not accept the opinion of Dr Al Faruque of 2 March 2022 that the applicant could perform the duties of a machine operator on the basis that the description of the duties provided to Dr Al Faruque differed materially and significantly from those identified by Ms Boggian.
The evidence in respect to capacity or incapacity is however not limited to the abovementioned opinion of Dr Al Faruque and the applicant’s statement that he could physically manage the occupation of stationary machine operator.
In summary Ms Boggian identifies the following physical demands/activities in respect to the vocation of stationary machine operator:
(a)    frequent standing - usually on concrete;
(b)    may walk;
(c)    stretching up and across on an occasional basis;
(d)    squatting, crouching and/or kneeling may be required occasionally;
(e)    twisting of the body or neck may be required occasionally;
(f)    lifting and carrying may be occasional to frequent and is likely to be up to heavy physical demand levels;
(g)    frequent bending and lifting;
(h)    many tasks require the repetitive use of hands and arms for carrying, lifting and loading or unloading items;
(i)    driving of forklifts may be required, and
(j)    potential use of hand tools.
Turning to the certificates of capacity Ms Bobanovic noted that at the time of the functional evaluation the applicant was certified with no capacity for any type of employment based on the left carpal tunnel syndrome condition. In respect to the right shoulder injury the applicant was certified fit for suitable duties four hours per day, three days per week with the following restrictions:
(a)    lifting: up to 3kg;
(b)    sitting: normal;
(c)    standing: normal;
(d)    twisting/bending/squatting: normal;
(e)    pushing/pulling: not with right hand, and
(f)    driving: up to 20min.

The restrictions in the certificate of capacity are clearly incompatible with the identified physical demands of the position of stationary machine operator with the applicant being certified with no capacity for any type of employment due to the left carpal tunnel syndrome.
Dr Al Faruque in a certificate of capacity dated 13 January 2022 diagnosed injury to the right shoulder and left knee due to the fall on 7 July 2020. The doctor assessed the applicant with capacity for some type of employment from 13 January 2021 to 13 February 2022 for four hours per day, three days per week. The doctor identified the following restrictions:
(a)    lifting/carrying capacity not more than 8kg;
(b)    standing and sitting tolerance normal;
(c)    bending/twisting/squatting ability normal
(d)    pushing/pulling ability: not allowed using the right hand;
(e)    driving ability: 20 minutes, and
(f)    not to use left hand as it is affected by carpal tunnel.
The restrictions in this certificate of capacity are also incompatible with the identified physical demands. Whilst the applicant has a lifting/carrying capacity of no more than 8kg he is not to use his right hand for pushing and pulling and not to use his left hand at all due to the carpal tunnel syndrome. Such restrictions appear incompatible with the requirement to repetitively use the hands and arms for carrying, lifting and loading and unloading of items as well as lifting and carrying on an occasional to frequent basis up to a heavy physical demand level which on the definitions provided to Dr Al Faruque would be 22.7kg to 45.4kg occasionally or 11.3kg to 22.27kg frequently.
Dr Al Faruque in a certificate of capacity dated 16 February 2022, the certificate which was current at the time of the work capacity assessment on 10 March 2022, assessed the following restrictions due to carpal tunnel syndrome:
(a)    lifting/carrying capacity up to 5kg using left hand and up to 8kg using right hand;
(b)    standing and sitting tolerance normal;
(c)    bending/twisting/squatting ability up to tolerable limit;
(d)    pushing/pulling ability up to tolerable limit, and
(e)    driving ability up to tolerable limit.
The certification as to the applicant’s capacity in the certificate of capacity dated
16 February 2022 for work is unclear as the doctor has ticked the box indicating no current capacity for any work but has not inserted any dates relating to the period of incapacity whilst the doctor has not ticked the box indicating capacity for some type of work but has inserted a period from 13 February 2022 to 13 March 2022 for four hours per day, three days per week with the above restrictions. The applicant’s submissions appear to accept and I have assumed that the doctor did intend to certify the applicant with a restricted work capacity.
The respondent incorrectly submitted that the certificate of capacity dated 13 January 2022 was the last certificate of capacity in evidence. As noted above there is a further certificate of capacity in evidence dated 16 February 2022. The respondent requested that a Jones v Dunkel inference be drawn in respect to the lack of more recent certificates of capacity or other evidence from Dr Al Faruque. I decline to draw such an inference on the basis that the applicant after the close of evidence did attempt to have admitted into evidence later certificates of capacity from Dr Al Faruque. The applicant’s application was objected to by the respondent. Also leave was granted to the respondent to issue a Direction for Production on Dr Al Faruque. Finally, as the applicant has been, and continues to be, in receipt of weekly benefits compensation the applicant would have regularly provided to the insurer certificates of capacity.
The certificate of capacity dated 16 February 2022 does not provide a total bilateral lifting limit however the certificate was current when Dr Al Faruque reviewed the three vocational options on 2 March 2022, at which time, in respect to the occupation of packer the doctor identified a lifting restriction of under 8kgs and not above shoulder height.
The restrictions in this certificate of capacity would also appear to be incompatible with the identified physical demands. In particular the lifting/carrying restriction of up to 5kg using the left hand and up to 8kg using the right hand or a total lift of up to 8kg is incompatible with the identified physical demand of lifting and carrying on an occasional to frequent basis up to a heavy physical demand level which on the definitions provided to Dr Al Faruque would be 22.7kg to 45.4kg occasionally or 11.3kg to 22.27kg frequently.
Whilst the restrictions identified in the certificates of capacity are incompatible with the identified physical demands of a stationary machine operator the utility of the certificates is limited in identifying the applicant’s restrictions. Whilst the certificates of capacity refer to lifting and carrying restrictions, they do not discuss the effects of repetitive lifting on those restrictions and the certificate of 16 February 2022 in respect to pushing and pulling refers to up to a “tolerable limit” with no indication as to what a “tolerable limit” may be and again does not canvass the effect of multiple repetitions on that limit.
In respect to the applicant’s ability to push and pull Ms Bobanovic in her functional capacity evaluation report dated 8 December 2021 recommended that the applicant should be issued with a certificate of capacity reflecting the applicants current assessed abilities including pushing/pulling 8kg.[13] Ms Bobanovic notes that the suggested pushing/pulling capacity was not assessed as part of the functional capacity evaluation and there is no indication in the functional capacity evaluation report that pushing and pulling capacity was assessed at all. There is also no indication as to how the 8kg pushing/pulling restriction was derived. Contrary to the 8kg pushing/pulling restriction Ms Bobanovic noted that the current certificate of capacity at the time of the evaluation recorded that the applicant was not to push/pull with his right hand and that there was no capacity for employment due to the left carpal tunnel syndrome. Whilst the applicant reported that he had pushed his lawn mower a few days prior and managed, A/Prof Courtenay, orthopaedic surgeon, who reviewed the applicant for the respondent on 23 June 2022 observed that the applicant could push and pull but was limited in the action that he could do but did not indicate the weights or the number of repetitions which the applicant could perform pushing and pulling. The Associate Professor took a history that the applicant does his lawns very slowly, presumably due to limitations on his capacity to push a lawn mower.
[13] ARD p 34.
Ms Bobanovic also noted that on 24 November 2021 a medical case conference was undertaken with the applicant, his NTD (presumably Dr Al Faruque), EML and the rehabilitation provider at which time the applicant indicated that he was recovering well from the carpel tunnel release surgery but was experiencing pain within his left thumb. It was also indicated that the applicant’s shoulder had improved well and was now at maximum medical improvement but not at a level of being fit for his pre-injury duties as a boilermaker. The applicant was advised to limit repetitive movements and was also referred for a further MRI.
It is the applicant’s evidence in his statement dated 29 August 2022 that his left hand pain is instantly triggered and exacerbated by intense gripping, that he is unable to engage in any domestic or recreational activities that require gripping, pushing or pulling, that when his pain is triggered it often takes hours to settle.
I do not accept Ms Bobanovic’s indication that the applicant can push and pull 8kg. The basis for the indication is unknown with no assessment of the applicant’s capacity to push and pull having apparently been undertaken.
There is no other evidence as to the nature of the weights that the applicant can push and/or pull. The certificate of capacity dated 16 February 2022 refers to a “tolerable limit”. This “tolerable limit” would appear to be low. It is the applicant’s evidence that he is unable to engage in activities that require pushing or pulling and at the time of the functional evaluation the certificates of capacity indicate that he had no capacity to push or pull. Whilst at the time that the applicant was examined by A/Prof Courtenay on 23 June 2022 the applicant does appear to have had some capacity to at least push, that capacity appears to have been significantly limited as he was only able to mow his lawns very slowly.
The physical demands identified by Ms Boggian in respect to the occupation of machine operator include repetitive use of the hands to load and unload items which presumably would frequently include pushing and/or pulling. Ms Boggian in assessing that the applicant could perform the role of stationary machine operator has relied on the functional assessment of Ms Bobanovic. I am not satisfied that the applicant’s ability to push and pull has been sufficiently assessed to determine that he is capable of performing the role of stationary machine operator.
The physical demands identified by Ms Boggian also included ‘[s]tretching up and across on an occasional basis when loading items into machines, carrying out inspections of finished products and machinery’. Ms Bobanovic assessed the applicant’s capacity to reach forward and overhead at three minutes continuous with hands in forward reaching position and with hands in overhead position. There is no indication that the testing involved the lifting of weights at the same time as reaching forward or overhead which presumably would be required when loading items or inspecting finished products.
The respondent submitted that Dr Gupta, orthopaedic surgeon, who performed the surgical release of the left carpal tunnel supported a gradual return to work. There is however no evidence that Dr Gupta is of the opinion that the applicant could perform the duties of a stationary machine operator.
A/Prof Courtenay records that on 23 June 2022 the applicant reported to him that the carpal tunnel release was doing very well however the doctor observed that there was persisting wasting of the left carpal tunnel which the doctor suspected would be permanent. The left carpal tunnel release surgery had been performed on or about 27 September 2021.
[14] Reply p 12.
Ms Bobanovic measured the applicant’s grip strength using a Jamar Dynamometer finding that his left hand grip strength was 63% of normal.[14]
On 23 June 2022 A/Prof Courtenay also observed that whilst the right shoulder was improving there was still some persisting wasting and whilst the applicant was pretty happy with the progress and whilst the range of motion had improved he had troubles with weakness which he particularly noticed when trying to open jars.
Ms Bobanovic recorded that the applicant reported that he experiences a ‘dull ache’ in his right shoulder and his pain symptoms increase to 4-5/10 after 15-30 minutes of activity. A/Prof Courtenay also observed that the applicant had been having left shoulder issues for some time and on examination the doctor observed there was some loss of movement of the left shoulder. The applicant’s left shoulder condition pre-dates his recommencement of employment with the respondent on or about June 2020.
The applicant also appeared to have some persisting loss of dexterity in the left hand at the time of the examination by A/Prof Courtenay on 23 June 2022 with the applicant reporting that he was working on his guitar playing which he found helps with his dexterity but he tends to miss notes.
It is the applicant’s evidence that his neck and shoulder symptoms can be such that on any particular day it will cause him not to get off the couch. Whilst the applicant’s neck condition may have been aggravated in the fall at work on 7 July 2020 he had been suffering from neck problems prior to the fall.
In respect to the applicant’s neck A/Prof Courtenay observed that the applicant’s symptoms flare up at times particularly if he is looking down for any length of time doing work. He also has some trouble moving around when he is shaving and brushing his teeth which can cause his neck symptoms to flare up. The applicant was generally always aware of his neck. On examination the doctor observed decreased movements of the cervical spine.
A/Prof Courtenay observed that the applicant still had some issues with his left knee. The left knee stopped the applicant from doing quite a lot of walking and he was getting pain on the medial side of the knee. Ms Bobanovic records that the applicant reported that he could stand for a maximum of one hour reporting an increase in knee pain and aching.
Ms Bobanovic assessed that the applicant had no limitations on his ability to stand and walk which is inconsistent with the applicant’s reported ability and the evidence of
A/Prof Courtenay. Ms Bobanovic does not describe what tests were performed to assess the ability to stand and walk and for what period those tests were performed.

Ms Bobanovic observed that the applicant during the functional capacity assessment attempted all tasks, with tasks either completed or discontinued by the assessing therapist when clinical signs of strain were observed. In the opinion of Ms Bobanovic the applicant appeared to work to his maximal potential on all attempted tasks. The activities performed during the functional capacity assessment appear to have aggravated the applicant’s symptomatology with Ms Bobanovic recording that prior to the functional capacity evaluation the applicant reported pain of 0/10. Post assessment, the applicant rated his pain level at 4/10 and in a follow up phone call 24 hours post assessment the applicant rated his pain at 0/10.
It is the evidence of Ms Boggian that three potential employers East Coast Canning, Austral Wire Products Pty and APG Workforce, were asked for their opinion as to the applicant’s suitability for the position of stationary machine operator. According to Ms Boggian all three employers indicated that they could accommodate the applicant’s provided medical restrictions of:
(a)    lifting no more than 8kg;
(b)    sitting normal;
(c)    standing normal;
(d)    not allowed to push or pull with right hand;
(e)    bending, twisting squatting normal;
(f)    driving 20 minutes;
(g)    able to avoid use of left hand, and
(h)    not to use left hand as it is affected by carpal tunnel.
The functional requirements of the role with East Coast Canning are identified as:
(a)    lifting/carrying less than 6kg (use of hand tools to make machine adjustments, starting stopping and operating machinery);
(b)    no pushing or pulling with right hand;
(c)    standing up to 30 minutes, and
(d)    sitting intermittently.
The functional requirements of the role with Austral Wire Pty are identified as:
(a)    lifting and carrying less than 7kg (operating machinery, reporting faults and using hand tools);
(b)    no pushing or pulling required with right hand;
(c)    standing up to 30 minutes;
(d)    able to avoid use of left hand, and
(e)    standing intermittently (less than 20 minutes).
The functional requirements of the role with APG Workforce are identified as:
(a)    lifting less than 6kg (operating paper bag machinery, reporting faults and making adjustments);
(b)    no pushing or pulling with right hand;
(c)    sitting up to 10 minutes;
(d)    standing intermittently (less than 30 minutes), and
(e)    able to avoid use of left hand.
All three employers are recorded as having confirmed based on the applicant’s education, transferable skills and functional capacity, he would be highly suited to the role’s and that the applicant would be highly considered for the roles based on his experience.
The report does not record the positions of the persons with the contacted employers who provided the opinion nor is their intimacy with the role described. It is therefore not known what the level of knowledge of the person contacted in respect to each of the roles may have been to be able to give an opinion. The report contains no actual description of the physical duties of each of the roles. In particular there is no information as to the nature of the lifts to be performed, how often the lifts would be performed. What pushing pulling or other manipulation of items would be required and the weights and repetitions that would be involved.
Whilst each of the three identified employers identifies a lifting limit, the nature of the lifts and the frequency of the lifts are not identified. The lifting limits identified by the three employers range from 6 to 7kg. Ms Bobanovic assessed the applicant with the ability to lift / carry, straight armed, unilaterally with each hand 8kg performing up to three repetitions per hour,
6kg up to 20 repetitions per hour and 4.5kg at one repetition per minute. The applicant was assessed with an ability to lift from waist to overhead of 8.9kg at up to three repetitions per hour, 6.7kg at up to 20 repetitions per hour and at up to 5kg at one repetition per minute. The applicant was assessed with the capacity to lift from waist to shoulder at up to 9.4kg at up to three repetitions per hour, 7kg at up to 20 repetitions per hour and 5.3kgs at up to one repetition per minute.
I am not satisfied that sufficient information as to the applicant’s restrictions was given to the prospective employers for them to be able to determine whether the applicant is capable of performing the physical tasks of the roles. I am also of the opinion that little weight can be placed on the opinions provided by the employers given that there is no information as to the knowledge of the person providing the opinion as to their knowledge of the role in question.
The available medico-legal opinions are of little assistance in assessing the applicant’s capacity for employment. A/Prof Courtenay assessed 0% WPI due to the right carpal tunnel syndrome and 4% WPI due to the left carpal tunnel syndrome. Dr Charles New, orthopaedic and spinal surgeon, provided a medico-legal report for the applicant dated 8 April 2022 in which he observed that the applicant had a very good result from the left carpal tunnel release surgery however still assessed 23% WPI as a result of the left carpal tunnel syndrome. Dr New assessed 0% WPI as a result of the right carpal tunnel injury noting that the symptoms had resolved. There is obviously a significant difference between the permanent impairment assessments of Dr New and A/Prof Courtenay in respect to the left carpal tunnel syndrome.
Impairment assessments are of little assistance in assessing incapacity for work for weekly benefits compensation. An incapacity for work for weekly compensation is not the same thing as permanent impairment measured by an assessment of whole person impairment for lump sum compensation. An assessment of no permanent impairment does not automatically equate to there being no incapacity for work. Likewise, it does not necessarily follow that an assessment of permanent impairment will support a finding of incapacity for work though it may be an important factor.[15]
[15] See Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart [2007] NSWWCCPD 161; Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155.
A/Prof Courtenay was not asked to provide an opinion in respect to the applicant’s capacity for employment and has not done so. Dr New is of the opinion that the applicant is not capable of performing his pre-injury duties and should be medically retired.
Whilst both A/Prof Courtenay and Dr New are of the opinion that the applicant has had a good result from the left carpal tunnel release surgery and have concluded either that the right carpal tunnel syndrome has resolved or that the symptoms have resolved, neither doctor has assessed or provide an opinion in respect to the applicant’s ability to lift, carry, push, pull or otherwise manipulate items. Also neither doctor has provided an opinion in respect to the capacity of the applicant to perform the role of stationary machine operator.
The respondent submitted that the opinion of Dr New does not travers the work capacity decision, the functional and vocational assessments, the opinion of Dr Al Faruque that the applicant has the capacity for the stationary machine operator role or the certificate of capacity certification that he could work 12 hours per week with relevant restrictions. It is correct that the report of Dr New does not directly refer to the functional and vocational assessments, the certificates of capacity or the opinion provided by Dr Al Faruque that the applicant could perform the job of stationary machine operator. It would however appear that Dr New did review a certificate of capacity which was current at the time of the doctor’s examination observing that “[t]he medical restrictions that he currently has are appropriate”.[16] Unfortunately, a copy of any such certificate is not in evidence. Dr New did however interview the applicant and undertake his own examination of the applicant. However due to the brevity of the opinion of Dr New including the lack of assessment of the applicant’s ability to lift, carry, push, pull and otherwise manipulate items I place little reliance upon it in coming to the conclusion that the applicant does not have the current work capacity to perform the identified vocation of stationary machine operator.
[16] ARD p 87.
The respondent in its submissions noted that the applicant had reported to A/Prof Courtenay that he had a rowing machine at home which he found helps his legs. The respondent submits that if the applicant can use a rowing machine, he can work 12 hours per week as a stationary machine operator. I do no not accept this submission. There is no evidence as to how often the applicant uses the rowing machine, for what duration he uses it and at what intensity.
For the above reasons I find that the applicant does not have the current work capacity to work as a stationary machine operator and has not had such a current work capacity since 21 June 2022.
No submissions were made by the respondent in respect to the applicant having the capacity to work in the alternate vocations of packer or product assembler.
There is no dispute that the applicant as a result of his injury has an inability to return to his pre-injury employment. As no ‘suitable employment’ has been identified I find that the applicant has ‘no current work capacity’.
Section 37(1) of the 1987 Act states:
“The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.”
As previously noted the applicant’s PIAWE has been agreed at $1,720. Indexing the agreed PIAWE in accordance with s 82A of the 1987 Act the following PIAWE rates apply:
(a)    $1,720 from 1 October 2020 to 31 March 2021;
(b)    $1,769.54 from 1 April 2021 to 30 September 2021;
(c)    $1,790.60 from 1 October 2021 to 31 March 2022;
(d)    $1,823.54 from 1 April 2022 to 30 September 2022;
(e)    $1,885.00 from 1 October 2022 to 31 March 2023, and
(f)    $1,963.03 from 1 April 2023.
I find that:
(a) the applicant does not have the current work capacity to work as a stationary machine operator and has not had such a current work capacity since
21 June 2022, and
(b) the applicant has no current work capacity and has had no current work capacity since 21 June 2022.

That there is an award for the applicant for weekly benefits as follows:
(a) $1,458.83 per week from 21 June 2022 to 30 September 2022, pursuant to s 37 of the 1987 Act;
(b) $1,508 per week from 1 October 2022 to 31 March 2023, pursuant to s 37 of the 1987 Act, and
(c) $1,570.42 per week from 1 April 2023 to date and continuing, pursuant to s 37 of the 1987 Act.
The respondent is to have credit for weekly payments paid.

Physical Demand	Light	Medium
Occasional exertion of force	Up to 10kg	9kg to 22.7kg
Frequent exertion of force	Up to 5kg	4.5kg to 11.3kg
Constant exertion of force	Insignificant amount of force	Up to 4.5kg

[2023] NSWPIC 235

24 May 2023