Sharma v Queensland Property Investments Pty Ltd t/as Woolworths Group Ltd
[2021] NSWPIC 310
•26 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Sharma v Queensland Property Investments Pty Ltd t/as Woolworths Group Ltd [2021] NSWPIC 310 |
| APPLICANT: | Vikas Sharma |
| RESPONDENT: | Queensland Property Investments Pty Ltd t/as Woolworths Group Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 26 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments of compensation for partial incapacity for injury to back and neck; whether worker continues to suffer aggravating effects of work injury; weight to be given to Certificates of Capacity; reference to DHL Exel Supply Chain (Australia) Pty Ltd v Hyde; Held – worker continues to suffer aggravating effects of work injury to back and neck; worker has had partial incapacity for work since April 2021; order for weekly payments of compensation pursuant to section 37 of 1987 Act and payment of reasonably necessary medical expenses. |
| DETERMINATIONS MADE: | 1. The applicant continues to suffer the effects of an injury to his lumbar spine, thoracic spine and cervical spine with a deemed date of injury of 17 June 2020. 2. The applicant has had a partial incapacity for work since 22 April 2021 as a result of an injury sustained to his lumbar spine, thoracic spine and cervical spine in the course of his employment with the respondent. |
| ORDERS MADE: | 1. The respondent is to pay the applicant weekly payments of compensation pursuant to section 37 (2) of the Workers Compensation Act 1987 as follows: (a) $104.57 per week from 22 April 2021 to 9 May 2021, and (b) $104.57 per week from 17 May 2021 to date and continuing. 2. The respondent is to have credit for sick leave or personal leave paid to the applicant to the extent of compensation that is paid to the applicant for the same periods, as provided for by section 50 (3) of the Workers Compensation Act 1987. 3. The respondent is to pay the reasonably necessary medical expenses incurred by the applicant for treatment for injury to his lumbar spine, thoracic spine and cervical spine. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Vikas Sharma, claims that he sustained an injury to his lower and upper back and neck while employed as a storeperson for the respondent, Queensland Property Investments Pty Ltd, as a result of lifting and packing heavy boxes, with a deemed date of injury of 17 June 2020.
Dispute notices have been issued dated 15 July 2020 and 3 May 2021 wherein the respondent disputes that the applicant sustained an injury in the course of his employment and that he has not been incapacitated as a result of any work injury.
However, at a conciliation and arbitration listed on 22 July 2021 the respondent agreed to pay the applicant weekly payments of compensation at the rate of $340.91 per week from 17 June 2020 to 21 April 2021, being for a period of 44 weeks and agreed to total $15,000.
The applicant claims that he continues to suffer the effects of the work injury and is not able to earn his pre-injury earnings as a result of the work injury.
The respondent contends that the effects of the work injury had ceased by 22 April 2021 and the applicant has not been incapacitated for work at all since then.
The applicant also claims the cost of medical treatment for the injury to his lower and upper back and neck.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant continues to suffer the effects of the work injury sustained in the course of his employment with the respondent (section 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) whether the applicant continues to be partially incapacitated for work as a result of an injury to the lower back, upper back and/or neck (sections 32A, 33 and 37 of the 1987 Act), and
(c) whether the respondent is liable for reasonably necessary medical treatment for the injury to the lower back, upper back and/or neck (section 60 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 22 July 2021. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Ms Goodman appeared for the applicant, instructed by Ms Magan. Mr Beran appeared for the respondent, instructed by Mr Passas.
The hearing was conducted by telephone in accordance with protocols set by the Commission as a result of the coronavirus pandemic.
A partial settlement of the dispute was reached as set out in “Background.” The claim for weekly payments of compensation from 22 April 2021 and the payment of medical treatment was made the subject of the following directions:
(a) the applicant to file and serve written submissions by 6 August 2021;
(b) the respondent to file and serve written submissions by 13 August 2021;
(c) the applicant to file and serve any written submissions in reply by 20 August 2021; and
(d) a written decision to be delivered after 23 August 2021.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,595.54.
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) Application to Admit Late Documents filed by the applicant on 13 July 2021, and
(d) Application to Admit Late Documents filed by the applicant on 6 August 2021.
Oral evidence
There was no application to adduce oral evidence or to cross examine the applicant.
The applicant’s evidence
The applicant has provided statements dated 16 March 2021 and 8 July 2021.
In his statement dated 16 March 2021, the applicant states that he commenced employment as a storeperson with the respondent in February 2019. He states that the job was extremely physical, requiring him to undertake heavy and repetitive lifting throughout an eight hour shift. He states that by the end of a shift he was in significant pain in the neck and lower and mid-back.
The applicant states that he stopped work on 17 June 2020 when he experienced a shooting pain in his neck and back when picking up a crate of oranges. He states that he returned to work on 2 July 2020 on light duties but that his back and neck would flare up with pain whenever he had to do any lifting.
In his statement dated 8 July 2021, the applicant states that since his previous statement he has continued to experience severe flare ups of pain and he has had to take time off work to recuperate.
The applicant states that he has constant pain in the lower back and neck, and intermittent pain in the mid-back.
The applicant states that from 13 November 2020 he started doing eight hours of work per day, which amounted to a 40 hour week, but this aggravated his pain. He states that from 10 January 2021 his working hours were reduced to six hours per day for five days per week, and from 25 February 2021 this was upgraded to seven hours per day for five days per week.
The applicant states that his employer has provided him with suitable duties which do not require any bending, lifting or strenuous activities. He states that those duties include cleaning, paperwork and transporting pallets with the use of a machine.
The medical evidence
The applicant’s general practitioner, Dr Rabbi, has issued Certificates of Capacity since 23 June 2020. Those Certificates state the diagnosis of work related injury to be a disc protrusion at C5/6, multilevel spondylosis in the thoracic spine, and bulging lumbar discs.
The capacity for hours of work in those Certificates of Capacity have varied from the applicant having a capacity to work for 20 hours per week in July 2020 to 30 hours per week in January 2021.
The Certificates of Capacity issued by Dr Rabbi since 24 February 2021 certify the applicant fit for seven hours per day for five days per week, with a lifting limit of 5 kilograms, a pushing and pulling limit of 10 kilograms, and no repetitive movements of the upper body, and no lifting of weights above shoulder height.
Dr Rabbi also provided a report dated 12 November 2020 to the applicant’s previous solicitors. In that report Dr Rabbi answers “yes” to the question: “if his injury represents the aggravation of a pre-existing condition, if his employment was the main contributing factor to the aggravation and that the effects of the aggravation have continued.”
The applicant attended Dr Al-Khawaja, neurosurgeon, in December 2020. The report from Dr Al-Khawaja to Dr Rabbi dated 22 December 2020 records the applicant complaining of neck pain, thoracic pain and lower back pain. There is no mention in that report of any restrictions to be placed on the applicant’s work capacity.
Dr Millons has provided reports at the request of the applicant’s solicitors dated 2 November 2020 and 17 December 2020.
In his report dated 2 November 2020, Dr Millons diagnoses the applicant as having a possible thoracolumbar muscle strain and possible aggravation of constitutionally based degenerate changes in the thoracolumbar spine as a result of the nature and conditions of work on 17 June 2020. He also diagnosed the applicant as having constitutionally based degenerate changes in the neck, which may have been aggravated by work in June 2020, or a neck strain from that same work. Dr Millons writes that the neck symptoms had now resolved.
Dr Millons opines:
“The nature and conditions of his work, picking and packing orders in the cool room, seems to have brought with it some symptoms in the lumbar region. Work does appear to have been the cause of those symptoms. His symptoms have virtually resolved, examination is now normal and employment does not appear to be a substantial contributing factor to the injury.
Accepting that there may have been some aggravation of a pre-existing condition, employment may have been the main contributing factor to the aggravation that could have occurred but the effects of that aggravation do not appear to be continuing.”
Dr Millons also opines that there may be intermittent flares of symptoms of the constitutionally based attritional changes in the applicant’s back and neck, due to “episodes of indiscretion” or with symptoms that come quite spontaneously. Dr Millons concludes:
“Each flare of symptoms should be treated on its own merits when considering liability. Incidents that occur at work should be considered to be work related. Incidents that occur at home probably should not be.”
In his second report dated 17 December 2020, Dr Millons refers to clinical notes from Dr Rabbi which include a record of upper back pain in February 2019 and a record of upper back and neck pain in January 2020. Dr Millons also observes that the notes on 14 April 2020 record that the applicant’s neck and shoulder pain had gone.
Having reviewed the clinical notes from Dr Rabbi, Dr Millons writes that “it can be reasonably accepted” that the applicant has constitutionally based degenerate changes in the thoracolumbar and cervical regions which could have been aggravated by the nature and conditions of the applicant’s work and by the normal activities of daily living. Dr Millons opines:
“On historical grounds, there appears to be a cause and effect relationship between the nature and conditions of his employment and his injury with his employment being a substantial contributing factor to the injury. Symptomatically, the effects of that aggravation are continuing. A review of Dr Rabbi's records would confirm that.”
Dr Millons also opines that it appears the applicant’s employment to have been the main contributing factor to the aggravation of constitutionally based attritional changes in the neck and thoracolumbar spine.
Dr Casikar has provided a report at the request of the respondent dated 21 April 2021. Dr Casikar records the applicant having a gradual onset of pain in the neck, shoulders and then in the back, and that the applicant is under the impression that the nature of his job has produced this problem.
Dr Casikar opines that the applicant has constitutional degenerative disease in the cervical and lumbar spine. He opines that there was soft tissue aggravation because of the nature of the applicant’s employment but that aggravation has now ceased.
Dr Casikar opines that the applicant has capacity to do his pre-injury duties and is fit to increase his hours of work. Dr Casikar considers that the impediment to this is the significant pain focus issues of the applicant. Dr Casikar states that his clinical examination of the applicant suggests abnormal illness behaviour and there should be further investigation by a psychologist.
Dr Casikar refers to the report of Dr Millons dated 2 November 2020 wherein Dr Millons indicates that repetitive work with the respondent has aggravated constitutional degenerative changes in the applicant’s neck and back. Dr Casikar writes: “I agree with this opinion except for his indication that his nature of the job has produced degenerative disease.”
The applicant’s earnings since 19 April 2021
The copies of the applicant’s pay advices from the respondent which cover the period from 19 April 2021 to 27 June 2021 are included in the Application to Admit Late Documents filed on 13 July 2021.
Copies of further pay advices from 28 June 2021 to 1 August 2021 have been attached to the applicant’s submissions filed on 6 August 2021. While leave has not been sought to include those further pay advices as evidence in this dispute, those documents have been created by the respondent and no issue was taken to them in the submissions filed by the respondent. I therefore intend to include those further pay advices in my consideration of any entitlement the applicant may have to weekly payments of compensation for partial incapacity.
There are 15 pay advices for the period from 19 April 2021 to 1 August 2021. There are six weeks when the applicant is paid for working 35 hours per week, and another week when the applicant worked 34.6 hours per week.
There are another six weeks when the applicant worked 28 hours per week.
The week of 10 May to 16 May 2021 records the payment of wages for seven hours of work, and the applicant otherwise being paid personal leave, annual leave, an RDO, and a public holiday in that week.
The week of 5 July 2021 to 11 July 2021 records that the applicant was paid annual leave.
FINDINGS AND REASONS
Whether the applicant continues to suffer from the aggravating effects of the injury to his back and neck
Dr Rabbi has been the applicant’s general practitioner throughout the period of this claim and dispute. He has provided a report dated 12 November 2020 wherein he simply answers “yes” to a question as to whether the effects of the aggravation have continued.
Mr Beran submits that this opinion is a bare ipse dixit, with no rationale provided for such an opinion. He submits that Dr Rabbi also provides no explanation in that report for his opinion on the applicant’s work capacity.
That report from Dr Rabbi is also provided five months before the commencement of the claim for weekly payments for partial incapacity which is now in dispute.
However, Dr Rabbi has continued to provide Certificates of Capacity which set out restrictions on the applicant’s capacity for work activities and the hours the applicant should work each week.
Ms Goodman for the applicant submits that significant weight should be given to the Certificates of Capacity issued by Dr Rabbi because he has seen the applicant on each occasion for those certificates and increased the applicant’s work hours and duties in accordance with those certificates.
Mr Beran for the respondent submits that the deficiencies that he highlighted in the report from Dr Rabbi dated 12 November 2021 also extend to these certificates as there is no detailed discussion or explanation by Dr Rabbi as to how or why he has come to his opinions on the applicant’s work capacity.
Mr Beran refers to what was said by President Keating in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 (Hyde) at [93]:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”
I would agree that there are instances when caution must be exercised when relying upon Certificates of Capacity, such as where certificates suddenly change from a worker having a significant capacity for work to having no current work capacity at all with no apparent change in symptoms or complaints, or where it is apparent that a doctor is simply printing out the same restrictions in Certificates of Capacity without any consideration of any change in the worker’s condition.
However, each dispute must be considered on its own facts and merits. I accept from a review of the Certificates of Capacity issued by Dr Rabbi over the course of 12 months that Dr Rabbi has given due consideration to both the extent of the applicant’s work capacity at any given time and whether the applicant’s complaints remain related to the aggravating effects of the work injury.
Dr Rabbi has been prepared to change the applicant’s hours of work and work activities in response to his treatment of the applicant over the course of 12 months. Dr Rabbi has also maintained the applicant’s capacity for work since 24 February 2021 at 35 hours of work per week, notwithstanding that the applicant has worked 28 hours per week for almost half of the weeks that the applicant has worked with the respondent since then.
The Certificates of Capacity issued by Dr Rabbi include a brief but concise summary of how he believes the injury sustained by the applicant relates to the applicant’s work. The Certificates of Capacity have been issued on the basis of Dr Rabbi’s opinion that the applicant’s symptoms in his neck and back remain related to the applicant’s work.
I do not accept a submission made by Mr Beran that the evidence and opinion of an orthopaedic surgeon (Dr Millons) and a neurosurgeon (Dr Casikar) should outweigh the certificates of the general practitioner. Both Dr Millons and Dr Casikar consider that the work undertaken by the applicant in the course of his employment with the respondent had aggravated degenerative changes in the applicant’s neck and back by June 2020. That satisfies the test of causation, but Dr Rabbi is in a very good position to determine the ongoing effects of that aggravation because he is seeing the applicant on a regular basis.
There is, in any event, support for the applicant continuing to suffer the aggravating effects of his injury in the opinion provided by Dr Millons. In his report in November 2020, Dr Millons opines that the effects of the aggravation of the applicant’s neck and back “to not appear to be continuing”, but also opines that each flare up of symptoms should be treated on their own merits when considering liability. Six weeks later and after being provided with copies of clinical notes from Dr Rabbi, Dr Millons opines that: “Symptomatically, the effects of that aggravation are continuing.”
I agree with the submission made by Ms Goodman that Dr Millons has explained the difference in opinion between his two reports. Dr Millons has reviewed material from Dr Rabbi and come to the conclusion that the effects of the aggravation sustained by the applicant are continuing. That conclusion is consistent with his initial opinion that: “Each flare of symptoms should be treated on its own merits when considering liability.”
It would have been helpful if Dr Millons had re-examined the applicant in the early part of 2021. However, I accept that Dr Millons has properly considered and explained his opinion that the effects of the aggravation sustained by the applicant are continuing and that Dr Rabbi has continued to regularly monitor the applicant to determine the ongoing effects of that aggravation and the extent to which there remains restrictions on the applicant’s work capacity.
My conclusions regarding the evidence and opinions of Dr Rabbi and Dr Millons are not displaced by the opinion of Dr Casikar. Dr Casikar has examined the applicant more recently in April 2021. He opines that the applicant “has capacity to do his pre-injury duties” and “is fit to increase his hours of work”, and considers the applicant might have some psychological barrier which needs to be investigated.
Dr Casikar lists the applicant’s statement dated 16 March 2021 as a document he has reviewed, but his report reveals little understanding of the work activities and hours of work undertaken by the applicant in April 2021. Dr Casikar merely writes that since June 2020 the applicant has been doing light duties. It is difficult to understand what Dr Casikar means when he writes that the applicant “is fit to increase his hours of work” when Dr Casikar does not provide his understanding of what hours of work the applicant was undertaking when the applicant was examined by Dr Casikar in April 2021.
I also agree with the submission made by Ms Goodman that the suggestion of abnormal illness behaviour has not been identified by any other doctor who has seen the applicant, including Dr Al-Khawaja, a specialist who has treated the applicant, Dr Rabbi who has reviewed the applicant on a regular basis. The weight of medical evidence does not support this conclusion made by Dr Casikar.
Mr Beran refers to the lack of identifiable restrictions or abnormalities from the examination conducted by Dr Casikar. However, that one examination must also be placed against the regular review of the applicant by Dr Rabbi.
I am satisfied from the evidence and opinions of Dr Rabbi and Dr Millons that the applicant has continued to suffer the aggravating effects of the injury to his back and neck since 22 April 2021.
The claim for weekly payments of compensation
The applicant’s potential entitlement to weekly payments of compensation from 22 April 2021 is provided for by section 37 of the 1987 Act. That section states:
“(1) 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.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”
Clause 8 of Schedule 3 of the 1987 Act sets out the meaning of “current weekly earnings” to be:
“‘Current weekly earnings’, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a) the worker's actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
The applicant’s pay advices record that he has worked for 35 hours per week for 6 of the 15 weeks from 19 April 2021 to 1 August 2021, and that he worked 34.6 hours for another week. That is consistent with the Certificates of Capacity issued by Dr Rabbi since 24 February 2021 which certify the applicant being fit for seven hours of work per day for five days per week with restrictions on lifting, pushing and pulling, and repetitive movements of the upper body.
The applicant states that he has continued to experience severe flare ups of pain and he has had to take time off work to recuperate. However, he does not provide more specific details of what he has done at work or elsewhere which has led to him working 28 hours for another six weeks between 19 April 2021 and 1 August 2021, and working seven hours in the week commencing 9 May 2021.
The applicant states that the suitable duties provided by the respondent include cleaning, paperwork and transporting pallets with a machine, but does not state whether it is any of those duties or other activities he has undertaken at work which has caused him to work less than the 35 hours of work per week which Dr Rabbi has certified the applicant as being fit for since February of this year. Nor are there any contemporaneous medical records which can provide details as to why between 19 April 2021 and 1 August 2021 there were seven weeks when the applicant could not work 35 hours per week.
Although the decision in Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 (Figueira), involved a psychological injury, DP Roche expressed a general caution when considering a worker’s subjective view of his or her capacity for work when he said at [38]:
“…a worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury, and the Arbitrator was not bound to accept the job applications as evidence of a capacity to work. He had to consider the whole of the evidence, including the medical evidence, and make an assessment based on that evidence.”
Given that Dr Rabbi has consistently certified that the applicant has been fit for 35 hours of work per week since 24 February 2021, and the applicant has worked 35 hours each week for half of the period from 19 April 2021 to 1 August 2021, and the applicant has not provided details of what has caused him not to be able to work 35 hours per week for the other half of that period, and the applicant has not provided medical evidence to support his inability to undertake 35 hours of work for those weeks, I have concluded that the applicant has been currently suited to 35 hours of work per week within the restrictions imposed by Dr Rabbi since 22 April 2021.
The applicant’s pay advices record that the applicant is paid at $36 per hour. Thirty-five hours of work per week at $36 per hour amounts to $1,260. However, those pay advices also record that the applicant is paid a 60% shift allowance for one seven hour shift per week, which amounts to a further $151.20. That makes a total of $1,411.20.
I therefore find that since 22 April 2021, the applicant has had the ability to earn the amount of $1,411.20 per week in suitable employment.
The definition of ‘current weekly earnings’, which is integral to the application of section 37 of the 1987 Act, mandates a determination of both the worker’s actual gross earnings for each week and what the worker is able to earn in suitable employment, so as to ascertain which is the greater amount.
The applicant’s pay advices since 22 April 2021 record that the applicant has received more than $1,411.20 for most weeks, but that has included the payment of other leave entitlements and which seem to be mostly personal leave. From my analysis of the pay advices, the applicant’s ability to earn in suitable employment of $1,411.20 has been a greater amount when compared to his actual gross earnings for the labour he has provided to the respondent in the weeks since 22 April 2021.
Ninety-five percent of PIAWE is $1,515.77. The difference between 95% of PIAWE and the applicant’s ability to earn in suitable employment of $1,411.20 amounts to $104.57. There will therefore be an award made in favour of the applicant pursuant to section 37(2) of the 1987 Act of $104.57 per week from 22 April 2021, except for the week from 10 May 2021 to 16 May 2021, when the applicant’s pay advice records that he only worked seven hours for that week. There will be no compensation awarded for that week because the applicant’s ability to earn in suitable employment was greater than 80% of PIAWE.
Mr Beran raised during the conciliation phase of this dispute the issue of the respondent obtaining the benefit of section 50(3) of the 1987 Act, which provides for credit for sick leave paid to the extent of compensation that is paid to the applicant for the same period. His written submissions did not seek such an order, but it seems to me that such an order should be made.
It should be noted that section 50 of the 1987 Act has yet to be amended to change ‘sick leave’ to ‘personal leave’ to make that section consistent with the (Commonwealth) Fair Work Act 2009, which now uses the term ‘personal leave.’
The claim for medical expenses
I have provided reasons as to why I consider that the effects of the injury to the applicant’s lumbar spine, thoracic spine and cervical spine are continuing.
There should therefore be an order that the respondent is to pay the reasonably necessary medical expenses for treatment for the injury to the lumbar spine, thoracic spine and cervical spine.
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