Sinclair v Linfox Armaguard Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sinclair v Linfox Armaguard Pty Ltd [2024] NSWPIC 426
APPLICANT:	Brett Sinclair
RESPONDENT:	Linfox Armaguard Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	8 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments of compensation and medical expenses for injury to the right shoulder and neck in 1996; dispute as to the extent of the worker’s incapacity; Wollongong Nursing Home Pty Ltd v Dewar, Popal v Myer Holdings Pty Ltd and Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer referred to; whether any incapacity is as a result of a secondary psychological injury; calculation of weekly payments to be awarded to the worker; Held – worker has suffered a secondary psychological injury but lack of evidence to determine that this consequential condition impacts on the worker’s incapacity; worker has had no current work capacity as a result of the injury to his right shoulder and neck since his position was made redundant by the respondent; award of weekly payments of compensation pursuant to sections 37 and 38, and for reasonably necessary medical expenses, including a secondary psychological injury.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has had no current work capacity since 25 November 2022 as a result of the injury he sustained to his right shoulder and neck while in the course of his employment with the respondent. The Commission orders: 1. The respondent is to pay weekly payments of compensation as follows: (a) $1,110.40 per week from 25 November 2022 to 31 March 2023 pursuant to s 37 (1) of the Workers Compensation Act 1987 (the 1987 Act); (b) $1,156 per week from 1 April 2023 to 30 September 2023 pursuant to s 37 (1) of the 1987 Act; (c) $1,184 per week from 1 October 2023 to 31 March 2024 pursuant to s 37 (1) of the 1987 Act; (d) $1,204.80 per week from 1 April 2024 to 13 June 2024 pursuant to s 37 (1) of the 1987 Act; and (e) $1,204.80 per week from 14 June 2024 to date and continuing pursuant to s 38 (6) of the 1987 Act. 2. The respondent is to pay the applicant’s medical expenses for reasonably necessary medical treatment as a result of the injury to the applicant’s right shoulder and neck, and for a secondary psychological injury.

STATEMENT OF REASONS

BACKGROUND

Brett Sinclair, the applicant in these proceedings, sustained an injury to his right shoulder and neck on 7 March 1996 while employed as a cash in transit security officer with Armaguard Mayne Nicholas. The respondent is now named Linfox Armaguard Pty Ltd.
Mr Sinclair was lifting heavy coin boxes on 7 March 1996, which he estimates to have weighed around 80kgs, when he sustained injury to his right shoulder and neck.
The respondent has accepted liability for this injury.
Mr Sinclair has undergone several operations to his right shoulder over the years since his workplace injury, including a coracoclavicular joint arthrodesis and a revision of the acromioclavicular joint on 6 July 1999.
Mr Sinclair and the respondent entered into Complying Agreements on 17 November 2005 and 12 April 2024 wherein Mr Sinclair has been paid lump sum compensation for a combined total of 37% permanent loss of use of the right arm at or above the elbow and 13% permanent impairment of the neck.
Mr Sinclair had his employment made redundant on 25 November 2022 and has not worked since. Mr Sinclair claims weekly payments of compensation from 28 November 2022 to date and continuing.
Mr Sinclair also seeks a general order that the respondent pay his reasonably necessary medical expenses for treatment for the injury to his right upper limb, neck and for a secondary psychological condition which results from the injury he sustained on
7 March 1996.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    the extent of any incapacity for work as a result of the injury sustained to the right shoulder and neck, as well as the secondary psychological condition claimed to have been sustained by the applicant (ss of 32A, 33, 36, 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act));
(b)    the application of the 2012 amendments to the 1987 Act to any award of weekly compensation payments (cls 3 and 13, Part 19H, Sch 6 of the 1987 Act), and
(c)    whether medical expenses incurred for treatment of the right upper limb, neck and secondary psychological condition are reasonably necessary as a result of the injury sustained by the applicant (s 60 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 17 August 2024. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Morgan appeared for the applicant, instructed by Mr Santone. Mr Murray appeared for the respondent.
The hearing was conducted by video and was recorded.
The pre-injury average weekly earnings (PIAWE) of Mr Sinclair at the date of commencement of his claim for weekly payments of compensation was agreed to be $1,388.
A direction was made at the conclusion of the hearing for further submissions to be filed and served by both parties on the effect of the 2012 amendments to the 1987 Act in regard to any award of weekly payments of compensation to be made in favour of Mr Sinclair.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 3 July 2024;
(d)    Application to Admit Late Documents filed by the respondent on 8 July 2024;
(e)    written submissions filed by the respondent on 18 July 2024, and
(f)    written submissions filed by the applicant on 5 August 2024.

Oral evidence

There was no application to adduce oral evidence or to cross examine Mr Sinclair.

The applicant’s evidence

Mr Sinclair has provided statements dated 31 May 2023 and 21 November 2023. He has also provided a statement headed “to whom it may concern” dated 27 February 2022, which was made while Mr Sinclair was still employed with the respondent.
Mr Sinclair states that he was lifting heavy coin boxes on 7 March 1996, which he estimates to have weighed around 80-kgs, while working as a cash in transit security officer when he sustained injury to his right shoulder and neck.
Mr Sinclair states that in about 2001 he was placed on restricted duties with a 10-kg lifting limit. He states that he was “put back on the trucks” in October 2017 by a new manager. He states that this work caused the pain in his right shoulder and neck to worsen.
Mr Sinclair states that the company doctor placed him again on restricted duties in March 2022 and he returned to the random support officer job which he had worked in from 2004. Mr Sinclair states that he had previously undertaken the support officer role when the position became available while he was on restricted duties due to his injury. He states that he was asked by the respondent to apply for this position because the respondent did not want him to return to work on the trucks due to the risk of further injury to his right shoulder.
Mr Sinclair states that he continued to work as a random support officer until that job was no longer available when the depot shut down on 25 November 2022. He states that he has not worked since.
Mr Sinclair states that he experiences regular discomfort down his neck, upper back and right shoulder down to his hands. He states that the pain is no different to the symptoms which he has experienced over many years since his initial injury, but at times the pain does fluctuate. He states that his symptoms are aggravated by lifting weights in his right hand.
Mr Sinclair states that he struggled to cope mentally around 2001 when his doctors told him that his shoulder would never really heal. He states that his managers sent him to a psychologist which he “found to have caused more harm than good”.
Mr Sinclair states that his mental health started to go downhill in 2017 when he was put back in the truck. He states: “I kept my psychological injury to myself at the time because my manager was sacking a lot of my colleagues, and I did not want to be next.” He states that he began to see a psychologist in 2022.
Mr Sinclair states that he used to live a very active lifestyle and would often go surfing, boxing or play cricket. However, he states that he can no longer do these activities. He states that there are days when he feels “mentally glued to my chair” and does not have the motivation to attend to tasks asked of him by his wife. Mr Sinclair states that he has panic attacks almost daily.

The applicant’s medical evidence

There is a Certificate of Capacity issued by Dr Cuthill on 11 March 2022 which places a 5kg limit on lifting with the right arm between waist and shoulder height, but otherwise certifies that Mr Sinclair has capacity for some type of work for his pre-injury hours. The certificate also refers to the right shoulder pain affecting Mr Sinclair’s sleep and mood, and binge drinking on the weekends in an attempt to alleviate the pain.
The Certificate of Capacity which is issued close to the time that Mr Sinclair’s employment was made redundant is from Dr Uchendu and dated 18 November 2022. The certificate places a 5-kg limit on lifting and pushing capacity with the right hand, but otherwise certifies that Mr Sinclair has capacity for some type of work, although the amount of hours and days are not specified.
A Certificate of Capacity issued by Dr Uchendu on 23 December 2022 reduces the lifting and pushing capacity with the right hand to 2kgs, with driving “as tolerated”. The certificate certifies that Mr Sinclair can work with these restrictions for eight hours per day for five days per week, but that it should be a “desk job only”.
Those certificates also refer to the right shoulder pain affecting Mr Sinclair’s sleep and mood, and binge drinking on the weekends in an attempt to alleviate the pain.
The contents of the Certificates of Capacity issued by Dr Uchendu during the course of 2023 do not change from those already referred to. There is no reference to any particular psychological condition being suffered by Mr Sinclair in those certificates, other than the shoulder pain affecting his sleep and mood.
The contents of the most recent Certificate of Capacity issued by Dr Uchendu dated
12 June 2024 have not changed.
Dr Pillemer, orthopaedic surgeon, has provided a report at the request of Mr Sinclair’s lawyers dated 17 August 2022. This report was prepared when Mr Sinclair was still employed by the respondent. Dr Pillemer records that Mr Sinclair had been on restricted duties for the past two months, with avoidance of any heavy lifting.
Dr Pillemer writes that Mr Sinclair has an arthrodesis of the right shoulder and neurological involvement in the neck or brachial plexus. He found Mr Sinclair to have residual restrictions of right shoulder movements and he avoided elevation of his right arm.
Dr Pillemer also writes:
“Mr Sinclair is obviously an extremely well motivated gentleman, having worked continually over the years apart from having to take time off for his operations is still working on a full-time basis.
Provided he does not have to do activities that placed stress on his neck or his right upper extremity, in my opinion, is able to continue with his restricted duties.”
The clinical notes from Dr Uchendu which are in evidence commence in January 2019. The first reference in those notes to psychological difficulties being suffered by Mr Sinclair appears to be on 16 September 2022 with the entry of: “Depressed mood - imminent redundancy from work”.
There is an entry on 21 October 2022 of Mr Sinclair being “very emotional” upon being handed a redundancy letter.
There is an entry on 14 November 2022 of Mr Sinclair being made redundant in two weeks and being “very distressed and teary”. There is a referral to a psychologist, Ian Johnsen.
There is a record of a prescription for Zoloft in an entry on 2 December 2022.
There is a report from Ian Johnsen, psychologist, dated 28 March 2023, in regard to
Mr Sinclair which refers to:
“…the stress and uncertainty of living with a significant injury and in dealing with a complicated process to address ongoing pain, loss of work and financial security, legal and compensation processes, and changes his role as a breadwinner in the family.”
There are no details in this report, or a later report from Mr Johnsen dated
24 November 2023, of any limitation on Mr Sinclair’s work capacity as a result of his psychological difficulties.
Dr Kumagaya, consultant psychiatrist, has provided reports at the request of Mr Sinclair’s lawyers dated 21 November 2023 and 10 June 2024.
In his report dated 21 November 2023, Dr Kumagaya records Mr Sinclair having an onset of depressive and anxious symptoms during 2001 in the context of his physical symptoms. That Mr Sinclair recalls attending psychological therapy in and around 2002 as a result of his psychological symptoms.
Dr Kumagaya records that Mr Sinclair no longer engages in social recreational activities, that he is unable to attend unfamiliar areas, and was not able to concentrate for longer than a few minutes at a time.
Dr Kumagaya found on a mental state examination that Mr Sinclair’s affect was dysphoric, and reduced in mobility, intensity, range and reactivity. He records that Mr Sinclair’s thought content comprised enduring depressive and anxious cognitions related to the circumstances that precipitated his psychological injury. He found Mr Sinclair’s cognition to be grossly intact.
Dr Kumagaya opines that Mr Sinclair’s workplace psychological injury is a secondary psychological injury, sustained as a result of physical injuries he experienced during his employment on 7 March 1996. Dr Kumagaya then opines:
“Prior to his workplace injury (7 March 1996), Mr Sinclair did not have an incapacity to work. Subsequent to his workplace injury, Mr Sinclair was variously incapacitated for work between 2002 and 2022 as a result of his psychological injury. From November 2022 onwards, Mr Sinclair has been fully incapacitated for work as a result of his psychological injury.”
Dr Kumagaya opines that Mr Sinclair is currently unfit for all work when considering age, education, qualifications, training, experience, employment skills and individual characteristics.
In his report dated 10 June 2024, Dr Kumagaya opines that Mr Sinclair’s prominent psychosocial impairments, which were recorded in his previous report, have resulted in
Mr Sinclair being unable to engage in any vocational engagements since November 2022 and “were noted to preclude a vocational capacity in the foreseeable future”.
There is a form completed by Dr Uchendu on 3 April 2023 in support of a claim made by
Mr Sinclair for total and permanent disability under his superannuation policy. Dr Uchendu answers that the diagnoses impacting Mr Sinclair’s work capacity is neck pain with radiculopathy, and anxiety and depression. Dr Uchendu answers “no” to the question as to whether Mr Sinclair is ever likely to resume any occupation in the future, with the explanation: “Injury is long-term and no signs of improvement/recovery. He would need retraining to do desk job”.

The respondent’s medical evidence

Dr Edwards, surgeon, has provided a report at the request of the respondent dated
17 January 2023. This report is after Mr Sinclair ceased employment with the respondent.
Dr Edwards considers Mr Sinclair would be fit for work which does not require him to do repeated heavy lifting. He records Mr Sinclair does everything with his left hand other than to write. Dr Edwards also notes that Mr Sinclair continued working in his support officer job until the depot was shut down in November 2022, and therefore concludes that Mr Sinclair would be fit to continue in that job.
Dr Roberts, consultant forensic psychiatrist, has provided reports at the request of the respondent dated 28 March 2024 and 7 June 2024.
Dr Roberts records an injury sustained by Mr Sinclair to his neck and right shoulder on
17 March 1996, and that the injury was aggravated in October 2017.
Dr Roberts records that Mr Sinclair had seen a psychologist in 2004, but Mr Sinclair said it did him more harm than good. He records that Mr Sinclair stated that he needed to get psychological assistance but what had been offered to him was of no help. Dr Roberts records that Mr Sinclair had been attending a psychologist since he had left work with the respondent.
Dr Roberts concludes that Mr Sinclair suffers from a psychiatric condition which has arisen as a secondary injury in response to the original physical injury and a subsequent aggravation in 2017. He opines on the grounds of probability that Mr Sinclair developed an initial chronic adjustment disorder with anxiety and depression, but this has not metamorphosed into a major depression.
Dr Roberts states that Mr Sinclair’s suitability for work is primarily determined by his physical health status. He does opine that Mr Sinclair’s psychological condition was not being optimally treated because even a modest dose of Sertraline had provided a significant improvement in Mr Sinclair’s psychological condition.
In his report dated 7 June 2024, Dr Roberts writes that his impression from the information he obtained is that Mr Sinclair was capable of undertaking modified duties from 1996 until approximately 2017, and that the modification of those duties was determined by his physical state.
Dr Roberts writes that he does not agree with the statement made by Dr Kumagaya that
Mr Sinclair “was variously incapacitated to work between 2002 and 2022 as a result of his psychological injury”, because Mr Sinclair was able to undertake modified employment tasks until he was instructed to do tasks beyond that which were determined to be appropriate by his treating doctors.
Dr Roberts concludes:
“There is no evidence that Mr Sinclair has been fully incapacitated for work as a result of the psychological injury, subject to correction, it would be my impression that his incapacity for work was physical and arose because of him having been re-injured when asked to undertake duties right in accordance with his restrictions.”

FINDINGS AND REASONS

The submissions of the parties at the hearing were recorded and I do not propose to reiterate them in these reasons. I will, however, refer to the submissions which are pertinent to the determination of this dispute in this part of my decision.

The claim for a secondary psychological injury or condition

I will deal with firstly with the claim made by Mr Sinclair that he has a secondary psychological injury or condition which results from the injury he sustained to his right shoulder and neck on 7 March 1996, and the extent to which this condition may be the cause of an incapacity for work.
Both psychiatrists who have provided an opinion in this dispute consider that Mr Sinclair has sustained a secondary psychological injury as a result of the pain and restrictions experienced by him as a result of the injury to his right shoulder and neck.
The question to be determined is whether that secondary psychological injury has caused
Mr Sinclair to have any incapacity for work, and if so, the extent of that incapacity.
Dr Kumagaya opines that Mr Sinclair is currently unfit for all work. However, I find that I cannot rely upon or accept that opinion. There a number of reasons for reaching this conclusion.
Firstly, there is no evidence to support the opinion provided by Dr Kumagaya that Mr Sinclair “was variously incapacitated for work between 2002 and 2022 as a result of his psychological injury”. That opinion from Dr Kumagaya appears to be based on Mr Sinclair’s evidence that he saw a psychologist at the request of his employer around 2001.

I accept that Mr Sinclair’s mental health would have suffered over the years due to the chronic nature of his injury. However, Mr Sinclair does not state that he had any time off work between 2002 and 2022 due to his mental state, or that it was his mental state which restricted his capacity to undertake work for the respondent.
The opinion of Dr Roberts that Mr Sinclair’s capacity for work while he was employed with the respondent was based on limitations due to his physical injuries is more consistent with the evidence made available in this dispute.
This flaw in Dr Kumagaya’s opinion is important because his conclusion that Mr Sinclair “was variously incapacitated for work between 2002 and 2022” appears to provide the basis for his next opinion that Mr Sinclair has been “fully incapacitated for work” since November 2022.
That leads to the second reason for not accepting the opinion of Dr Kumagaya, namely that he does not explain how Mr Sinclair suddenly becomes totally incapacitated for work in November 2022 as a result of his psychological injury.
In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (Hevi Lift), McColl JA (Mason P and Beazley JA agreeing) said at [84]:
“It has long been the case that a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it.”
I agree with the submission made by Mr Murray on behalf of the respondent that it is implausible that Mr Sinclair would have suddenly become unfit for any type of work at all at the very time he was made redundant by the respondent without there being a proper explanation provided by Dr Kumagaya.
Thirdly, Dr Kumagaya does not engage in a consideration of any other factors that may be affecting Mr Sinclair’s mental state and may be a cause of an incapacity for work. This is despite Mr Johnsen, who had the opportunity of seeing Mr Sinclair on six occasions before he wrote his report dated 28 March 2023, referring to Mr Sinclair not only having ongoing pain, but also having concerns as to loss of work and financial security, legal and compensation processes, and his role as a breadwinner in the family.
Dr Kumagaya makes no attempt to grapple with these other impacts upon Mr Sinclair’s mental condition and how that might affect his capacity to work, but merely opines that
Mr Sinclair’s workplace psychological injury is a secondary psychological injury that was sustained as a result of physical injuries on 7 March 1996.
Having found the opinion of Dr Kumagaya to be of no assistance, I find there is no other evidence which assists me in determining if Mr Sinclair’s secondary psychological injury has caused an incapacity for work.
The Certificates of Capacity issued by Dr Uchendu do not place any restrictions on
Mr Sinclair’s capacity for work due to his psychological condition. This is despite Dr Uchendu being aware of Mr Sinclair’s psychological problems since November 2022 and providing treatment in response to Mr Sinclair’s psychological symptoms.
Mr Johnsen does not specifically address Mr Sinclair’s incapacity to undertake work in the two reports which are in evidence.
Dr Roberts opines that Mr Sinclair’s “incapacity for work was physical” and that Mr Sinclair’s suitability for work is primarily determined by his physical health status.
It may be that Mr Sinclair’s secondary psychological injury has had some effect upon an incapacity for work since he was made redundant, but I do not have any cogent medical evidence which would allow me to make such a determination or gauge the extent of such incapacity due to that secondary psychological injury.

The extent of the applicant’s incapacity for work as a result of the injury to his right shoulder and neck

The opinions provided by Dr Pillemer and Dr Edwards on Mr Sinclair’s capacity for work in regard to his physical injuries, as well as the Certificates of Capacity issued by Dr Uchendu, support a finding that Mr Sinclair has been able to earn income from suitable employment since his position was made redundant by the respondent.
However, Mr Morgan on behalf of Mr Sinclair relies upon the decision in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) to contend that there are no real jobs available to Mr Sinclair having regard to the ongoing effects of the injury. DP Roche said in Dewar at [51]:
“…the Arbitrator said that, to be viewed as ‘suitable employment’, there must be a capacity that is at least ‘potentially able to be realised for financial reward on the labour market’. If, by that statement, the Arbitrator meant that the work had to be available in a labour market reasonably accessible to Mrs Dewar, his statement was inconsistent with s 32A and was wrong. If the Arbitrator meant that the suitable employment must be employment that is real and is (potentially) available in the labour market at large, though not available to Mrs Dewar and not ‘generally available in the employment market’, I agree.”
DP Roche then said at [63]:
“Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”
It should be acknowledged that the decision in Dewar involved whether a job created by the employer amounted to ‘suitable employment’ as set out in s 32A of the 1987 Act. This was referred to by DP Snell in Popal v Myer Holdings Pty Ltd [2020] NSWWCC PD 32 (Popal) at [51]:
“The reference to ‘real jobs’ in the above passage needs to be read in light of the issues being argued in Dewar. The employer had supplied light work to the worker that consisted of a job that was made up for the purpose of supplying suitable duties. The employer argued this demonstrated an ability to perform ‘suitable employment’ for the purposes of s 32A, regardless of whether an employer exists who would provide that work. The Deputy President rejected the employer’s argument on this point; work that was ‘not real employment or work that was potentially available in the labour market at large’ was not ‘suitable employment’.”
Differing views were taken by counsel for each party in this dispute as to whether the random support officer job which Mr Sinclair did for at least several years after 2004 and for about eight months in 2022 was a ‘made up’ job or not.
Mr Morgan submits that this was a ‘grace and favour’ job which was provided to Mr Sinclair because of the ongoing effects of his injury. He submits that the random support officer job must have been a made up job because that job no longer was in existence when Mr Sinclair had his employment made redundant in November 2022.
Mr Murray submits that the random support officer job was an independent job within the respondent’s employment structure and that such a conclusion is supported by Mr Sinclair’s evidence that he was already on restricted duties when he was asked to apply for that job when it became vacant and he was successful with his application.
The difficulty that I have in regard to this issue is that I could not locate any details in the evidence of what the random support officer job entailed or how integral it was to the respondent’s business. Mr Morgan stated that the job was to drive a utility vehicle behind an armoured vehicle that makes deliveries of cash. I can only presume that this is based on instructions from Mr Sinclair because I could not locate those details within any of the evidence.
I agree with the submission made by Mr Morgan that the respondent is in an ideal position to provide details of what the random support officer job entailed, but it has not done so. When I asked Mr Murray, his response was that the job was to assist the road crew. This is of little assistance. It should be a straightforward task of obtaining a statement from a relevant officer of the respondent as to the duties and physical requirements of that job.
The evidence which has been made available does not allow me to be satisfied that the job of a random support officer is one that still exists within the employment structure of the respondent or is a necessary job for cash in transit security work.
Dr Uchendu has been providing Certificates of Capacity for some 18 months now. He has continued to certify that Mr Sinclair can work a full working week, but with a 2kg limit for lifting and pushing with the right hand, driving as tolerated, and that the work should be “desk job only.”
Mr Murray submits that caution should be exercised in approaching those certificates and 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.”
Mr Murray points out that there is no report from Dr Uchendu which explains why he has placed those particular restrictions on Mr Sinclair or details of any tests Dr Uchendu has undertaken to support the restrictions he has set out in those certificates.
The doctor’s statement completed by Dr Uchendu for Mr Sinclair’s total and permanent disability claim states that Mr Sinclair has been consulting Dr Uchendu since January 2019. I consider that Dr Uchendu is in a very good position as Mr Sinclair’s general practitioner to set out the appropriate restrictions as to Mr Sinclair’s capacity for work. He has had the opportunity of seeing Mr Sinclair on a regular basis and monitoring the ongoing effects at least in recent years of the injury to the right shoulder and neck.
In my view, the opinion provided by Dr Pillemer of Mr Sinclair’s capacity for work is limited because Mr Sinclair was still working for the respondent at the time he saw Dr Pillemer, and that opinion was provided in the context of the restricted work that Mr Sinclair was then undertaking.
Similarly, the opinion provided by Dr Edwards that Mr Sinclair could still work as a support officer is limited because I am not satisfied such a job is one that still exists within the employment structure of the respondent or is a necessary job for cash in transit security work.
Caution does need to be exercised in regard to medical certificates which merely repeat the same information and restrictions for months or even years. However, both Dr Pillemer and Dr Edwards consider that Mr Sinclair requires no further treatment. Dr Pillemer considered in August 2022 that the injury to the right shoulder and neck had stabilised for the purposes of assessing permanent impairment. The respondent has agreed that Mr Sinclair has 37% permanent loss of use of the right arm at or above the elbow and 13% permanent impairment of the neck.
I therefore do not consider in this particular dispute that the same details which continue to appear in the Certificates of Capacity from Dr Uchendu diminishes the weight to be given to those certificates.
The definitions of “current work capacity” and “no current work capacity” are set out in cl 9 of Schedule 3 of the 1987 Act as follows:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”
Section 32A of the 1987 Act includes a definition of “suitable employment” as:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Having accepted the restrictions on work which have been set out in the material from
Dr Uchendu, it is difficult to determine from the available evidence what real jobs which
Mr Sinclair might be suited for within those restrictions.
Neither party has provided any expert evidence of what jobs Mr Sinclair might be currently suited for. Even if there were such evidence, DP Snell in Husnain Pty Ltd v Workers Compensation Nominal Insurer (icare) & Another [2023] NSWPICPD 65 (Husnain) said at [86]:
“The Senior Member was under no compulsion to simply accept that the suggested roles constituted ‘suitable employment’. Consistent with the passages from South Australian Fire and Pikus quoted above, it was necessary that she, as the tribunal of fact, use her knowledge and experience to weigh up the whole of the evidence to determine this factual issue.”
Mr Sinclair states that he commenced employment with Armaguard Mayne Nicholas as a cash in transit security officer in 1991. He would have been 20 years of age at the time. I accept that his whole working life has been with the respondent.
Dr Uchendu considers that suitable work for Mr Sinclair should be “desk job only”. That would suggest that Mr Sinclair could undertake basic or menial clerical work. It might be that the work of a random support officer involved clerical duties, but there is no evidence to confirm this. Mr Sinclair is otherwise at a disadvantage of never having worked in an office in over 30 years. A ‘desk job’ is unlikely therefore to be ‘suitable employment’ having regard to his age, education, skills and work experience.
Furthermore, Dr Uchendu specifically refers in the doctor’s statement dated 3 April 2023 of the need for Mr Sinclair to undergo re-training to be able to a desk job if he is ever likely to resume an occupation in the future.
I did locate a Return to Work plan dated 18 October 1999 in the Reply (R104), which was not referred to by either of the parties in their submissions, for general despatch duties which included sorting keys, guns and IDs for runs, replacing staff on shifts when on leave, organising bags for runs, and answering the phone. However, that was well over 20 years ago and the details of the job indicate that it was likely to be ‘made up’ job.
Mr Murray suggested work as a courier, but it is unlikely that such a job would be limited to the delivery of parcels that are less than 2kgs. It would also involve a considerable amount of driving, whereas Dr Uchendu considers that Mr Sinclair can only drive ‘as tolerated’.
Mr Murray also suggested supervisory work in the security industry, but there is insufficient evidence for me to be satisfied that such a specialised job could be undertaken by
Mr Sinclair.
In Gradan Bathrooms Pty Ltd v Workers Compensation Nominal Insurer [2020] NSWWCCPD 36 (Gradan Bathrooms), DP Snell referred to Dewar (at [63]) and then said at [87]:
“The short point is that whether a worker has an ability to return to work in suitable employment depends on whether there are real jobs in the labour market in which the injured worker would be able to work. If there are not, then an injured worker will not have current work capacity.”
From my review of the available evidence, I cannot be satisfied that there is real employment or work that is potentially available in the labour market at large for Mr Sinclair having regard to his skills and work experience from working all of his adult life with the respondent.
It follows from the reasons I have given that I consider that Mr Sinclair has had no current work capacity since 28 November 2022.

The award of weekly payments to be made to the applicant

There is a list of payments included in the Reply. The respondent submits that the weekly payments of compensation recorded in that list of payments, and which were paid prior to the 2012 amendments to the 1987 Act, should count towards a determination of weekly payments to be paid to Mr Sinclair pursuant to ss 36, 37 and 38 of the 1987 Act. The respondent relies upon cl 3, Part 19H of Sch 6 of the 1987 Act which provides that the 2012 amendments to the 1987 Act apply to an injury received before the commencement of those amendments.
The respondent notes that cl 13, Part 19H of Sch 6 provides that weekly payments paid prior to the 2012 amendments are not counted towards the application of s 39 of the 1987 Act (being for no weekly payments beyond five years), but contends that the list of payments reveal that Mr Sinclair is “well short” of the 260 weeks referred to in s 39.
The respondent concedes that it is not clear from the list of payments as to how many weeks Mr Sinclair has been paid in the past. The respondent is prepared to regard each ‘payment date’ in the list of payments as one week, even though each payment date might be considerably more than one week. The respondent submits that Mr Sinclair has been paid 56 weeks of weekly benefits of compensation based upon this method of calculation.
Mr Sinclair submits that it can be inferred that if he has the benefit of the pre-2012 amendments not being applied under s 39, then the sections of the 1987 Act which precede that section (ss 36, 37 and 38) would also have the benefit of that exclusion.
Mr Sinclair submits that he should not be disadvantaged by the ‘broad brush’ approach taken by the respondent in its calculation of past payments of weekly compensation. He submits that the respondent bears the onus of proving the amount of weekly payments of compensation paid to him. Mr Sinclair submits that the respondent has not discharged this onus by simply conceding that an entry on a ledger represents one week of weekly compensation paid to him.
I rely upon the decision in Rawson v Coastal Management Group Pty Ltd [2015] NSWWCCPD 3 (Rawson) on the issue of whether weekly payments made prior to the 2012 amendments to the 1987 Act are to be included in the total amount of weekly payments to be paid to Mr Sinclair pursuant to ss 36, 37 and 38. Acting President Roche referred in Rawson to his previous decision in Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 (Kilic) and said at [39-40]:
“As Ms Kilic was not an existing recipient of compensation as at 1 October 2012 and had claimed compensation prior to that date, it was held (at [47]) that, for the purpose of the application of the weekly payments amendments introduced by the 2012 amending Act, a reference in Div 2 of Pt 3 of the 1987 Act to ‘a period in respect of which a weekly payment has been paid or is payable’ included such a period that occurred before 1 January 2013, being the date on which the weekly payments amendments applied to Ms Kilic.
It was further held (at [53]) that the combined effect of s 32A of the 1987 Act and cl 9(4) of Pt 19H of Sch 6 was that the entitlement periods commence at the time when weekly compensation has been paid or is payable and includes periods before the commencement of the amendments. That is, in that case, before 1 January 2013.”

In accordance with the decisions in Kilic and Rawson, any weekly payments made to
Mr Sinclair before the 2012 amendments to the 1987 Act in respect of the injury sustained on 7 March 1996 are to be included in the total amount of weekly payments to be paid to him pursuant to ss 36, 37 and 38 of the 1987 Act.
The issue then becomes whether the list of payments provided by the respondent can be relied upon to calculate how many weeks of weekly payments of compensation were paid to Mr Sinclair before the 2012 amendments to the 1987 Act.
The Commission relies upon the accuracy of lists of payments to make awards of weekly payments of compensation. The details set out in the list of payments in the Reply are ambiguous. However, Mr Sinclair does not state that he did not receive weekly payments of compensation while employed with the respondent. At least one period of payments coincides with the payment of medical expenses for surgery – it is recorded that Mr Sinclair was paid $4,057.64 in weekly payments on 26 September 1997 (ARD171) and the Mater Hospital was paid $1,738 on 19 September 1997 (ARD180) and Dr Sonnabend was paid $2,220 on that same date (ARD177).
I find I need to strike a balance between ensuring Mr Sinclair receives his proper entitlements to weekly payments of compensation when those payments might be limited to a certain period of time due to ss 36, 37 and 38 of the 1987 Act and the respondent being given due credit for payments which are required pin accordance with its legal obligations.
Given that there appears little doubt that Mr Sinclair has received weekly payments in the past, I consider the calculation of past weekly payments of compensation and the concessions made by the respondent to be reasonable. However, there are some payment dates which should be regarded as being in the same week – 27 and 30 December 2002 (ARD174) and 30 June, 2 July, and 4 July 2003 (ARD175). The revised calculation which I have made totals 50 weeks of past payments for weekly benefits of compensation.
The respondent calculated the 130 weeks of weekly payments of compensation as provided for by ss 36 and 37 of the 1987 Act to end as of 2 May 2024, but that was based on
Mr Sinclair already having received 56 weeks of weekly payments of compensation. The revised calculation which I have made of 50 weeks brings the s 37 period to an end as of
13 June 2024.
I have found that Mr Sinclair has had no current work capacity since 28 November 2022. That entitles Mr Sinclair to weekly payments of compensation pursuant to s 38 (2) of the 1987 Act if he is likely to continue indefinitely to have no current work capacity.
I took the view in Morcos v Deosa Enterprises Pty Ltd [2021] NSWWCC 45 at [25] that it was necessary for a worker to establish that he or she was likely to have no current work capacity for an unknown or indeterminate period into the future to obtain the benefit of s 38(2). A similar approach was taken by Arbitrator Harris in Roberts v University of Sydney [2020] NSWWCC 54 at [99-100]:
“I agree with the applicant’s submission that the meaning of ‘indefinitely’ is akin to an unknown or non-specific period.
I also agree with part of the respondent’s submission that the meaning relates to the ‘foreseeable future’, although the meaning is probably more restrictive than that because the satisfaction of the concept requires incapacity of an indefinite nature rather than just in the forseeable period.”
Mr Sinclair is likely on the current available evidence to continue indefinitely to have no current work capacity. That might change if Mr Sinclair were to undergo the re-training recommended by Dr Uchendu in the Statement he completed for Mr Sinclair’s total and permanent disability claim. However, at this stage there will be an award of ongoing payments at 80% of PIAWE as provided for by s 38 (6) of the 1987 Act.
The respondent has calculated the indexed PIAWE rates as provided for by s 82A of the 1987 Act. The award of weekly payments of compensation to the Mr Sinclair will be as follows:
(a) $1,110.40 per week from 25 November 2022 to 31 March 2023 pursuant to s 37 (1) of the 1987 Act;
(b) $1,156 per week from 1 April 2023 to 30 September 2023 pursuant to s 37 (1) of the 1987 Act;
(c) $1,184 per week from 1 October 2023 to 31 March 2024 pursuant to s 37 (1) of the 1987 Act;
(d) $1,204.80 per week from 1 April 2024 to 13 June 2024 pursuant to s 37 (1) of the 1987 Act; and
(e) $1,204.80 per week from 14 June 2024 to date and continuing pursuant to s 38 (6) of the 1987 Act.

The claim for medical expenses

There will also be an order that the respondent is to pay the applicant’s medical expenses for reasonably necessary medical treatment as a result of the injury to the applicant’s right shoulder and neck, and for a secondary psychological injury.

[2024] NSWPIC 426

8 August 2024