Slattery v Eaton & Sons Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Slattery v Eaton & Sons Pty Ltd [2021] NSWPIC 181
APPLICANT:	Ian Slattery
RESPONDENT:	Eaton & Sons Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	11 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Dispute as to entitlement to weekly compensation in varying periods relating to agreed lumbar injury on 22 August 2017; main issue involved application of section 32A of the 1987 Act in relation to the definition of suitable employment; Held- Award for applicant, which varied due to differing work capacity in particular periods.
DETERMINATIONS MADE:	1. The respondent is to pay the applicant weekly compensation as follows: a. From 10/9/17 to 20/11/17 pursuant to section 36 of the Workers Compensation Act 1987 the amount of $349.64 per week, with credit to the respondent for payments made to the applicant. b. From 22/11/17 to 18/12/17 pursuant to section 37(3) of the Workers Compensation Act 1987 the amount of $215.49 per week. c. From 19/12/17 to 18/3/18 pursuant to section 37(1) of the Workers Compensation Act 1987 the amount of $715.49 per week. d. From 16/4/19 to 19/9/19 pursuant to section 37(1) of the Workers Compensation Act 1987 the amount of $715.49 per week. e. From 20/9/19 to 18/3/21 pursuant to section 37(1) of the Workers Compensation Act 1987 the amount of $625.80 per week.

STATEMENT OF REASONS

BACKGROUND

Ian Slattery, the applicant, was employed by the respondent, Eaton & Sons Pty Ltd, as a timber sales clerk, labourer and safety advisor. On 22 August 2017 he sustained an injury to his lumbar spine. He attempted to return to work on light duties, however, his employment was terminated on 22 September 2017. In about March 2018 he commenced employment as a gardener with Deltsons Pty Ltd, his brother’s beef cattle property, which he said only involved light work. He ceased this work in April 2019 as he experienced an episode of severe back pain at home. On 27 May 2019 he underwent lumbar decompression surgery, with further surgery on 4 October 2019 due to complications after the first procedure.
The issue in dispute relates to Mr Slattery’s entitlement to weekly compensation and his capacity for employment.

PROCEDURE BEFORE THE COMMISSION

A conciliation conference/arbitration hearing was held in this matter on 9 February 2021. At that time Ms Eraine Grotte, counsel, instructed by Mr Andrew Edward-Joy, solicitor, appeared for Mr Slattery and Ms Lyn Goodman, counsel, instructed by Mr Michael Tremlow, solicitor, and Ms Rana Issa from icare appeared for the respondent.
In conciliation the Application to Resolve a Dispute (ARD) was amended to change the date of injury to 22 August 2017 and delete 17 August 2017 wherever it appears. The matter was partly resolved with the respondent no longer disputing injury to the lumbar spine. The respondent agreed to a referral to an Approved Medical Specialist (now termed a Medical Assessor) and to pay treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act). However, the parties were unsuccessful in resolving the claim for weekly compensation. I directed the parties file written submissions in relation to this aspect of the case.
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 of the weekly compensation claim and that they have been unable to reach an agreed resolution of the dispute.
The parties have agreed to the weekly compensation claim to be determined ‘on the papers’.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the respondent dated 3 February 2021;
(d)    Medical Assessment Certificate Dr Hyde Page dated 8 March 2021;
(e)    Written submissions filed by the applicant dated 18 February 2021;
(f)    Written submissions filed by the respondent dated 9 March 2020 [sic], and
(g)    Written submissions in reply filed by the applicant dated 24 March 2021.

Oral evidence

There was no oral evidence.

FINDINGS AND REASONS

Legislation

In claims for weekly compensation as a starting point one needs to consider if the applicant has “no current work capacity” or a “current work capacity” in particular periods of the claim.
The definitions of “current work capacity” and “no current work capacity” were moved from section 32A to Schedule 3 of the 1987 Act by the Workers Compensation Legislation Amendment Act 2018 (the 2018 amending Act). In Schedule 6, Part 19L, Clause 2(2) of the 1987 Act it states that “An amendment made by the 2018 amending Act does not apply to compensation paid or payable in respect of any period before the commencement of the amendment, except as otherwise provided by this Part.’ The commencement date was 21 October 2019. However, there was no substantive change to these definitions.
“No current work capacity” is defined to mean:
“in relation to a worker, means 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.”
“Current work capacity” is defined as “a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”.
“Suitable employment” is defined in section 32A of the 1987 Act as follows:
“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 WorkCover 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.”

Sections 36 and 37 of Division 2 of Part 3 of the 1987 Act provide the mechanism for calculating an injured worker’s entitlements to compensation for the first 130 weeks.
In Wollongong Nursing Home Pty Ltd v Dewar[1] Roche DP explained how the determination of an injured worker’s entitlement to weekly compensation differed after the 2012 amendments and that care needed to be taken when relying on older authorities. This is because section 32A of the 1987 Act eliminates a consideration of whether work is “available” and whether it is “of a type or nature that is generally available in the employment market”.
[1] [2014] NSWWCCPD 55, Dewar.
However, as Roche DP pointed out the first question to ask is whether a worker has a “current work capacity” or “no current work capacity”. As he explained at [47],
“A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.”

In Dewar Roche DP found at [58]:
“‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).”

Weekly Compensation Claim

Mr Slattery was paid weekly compensation pursuant to section 36 of the 1987 Act from 22 August 2017 to 9 September 2017. His counsel incorrectly has in her submissions that this is “a period of 4 weeks”. It is two weeks and four days, although this error does not appear to have significantly affected the calculations of the weeks being claimed, set out below.
In Mr Slattery’s ARD he claims weekly compensation pursuant to section 37 of the 1987 Act in the period 9 January 2018 to 18 February 2020[2]. However, in his counsel’s submissions at [32] the claim made is as follows:
“(a)    10/9/17 to 20/11/17 (10 wks) at $715.49 per wk (able to work 8 hrs per wk)
(b)    22/11/17 to 18/3/18 (16.5 wks) at $715.48 per wk (no capacity- 80% PIAWE)
(c)    No claim from 19/3/18 to 15/4/19 (no compensation received during this period)
(d)    16/4/19 to 19/9/2019 (22.5 wks- balance of first 52 wks) at $715.48 per wk (no suitable employment- 80% PIAWE)
(e)    20/9/2019 to date and continuing (78 wks remaining) at $625.80 per wk (no suitable employment- 80% base rate).”
[2] ARD form p 8.

The respondent in its submissions has not opposed Mr Slattery making the claim for weekly compensation set out in his counsel’s submissions, which extends beyond that pleaded in the ARD. Therefore, the ARD is amended accordingly to reflect the claim actually being made.
While the respondent has not opposed Mr Slattery making this claim, it does dispute he has the entitlement alleged in this claim.
Mr Slattery’s pre-injury average weekly earnings figure (PIAWE) is agreed at $894.36. 80% of the PIAWE is $715.49. After 52 weeks both parties in their submissions agree the PIAWE is $625.80 per week.
I note the payslips from Deltsong Pty Ltd show the gross weekly pay was $798.08 from 19 March 2018 to 14 April 2019[3]. From 15 to 21 April 2019 it was $159.62[4].
[3] ARD pp 290 to 345.
[4] ARD p 346.

Mr Slattery’s capacity for employment

Because Mr Slattery’s claim covers several periods of time I have summarised below details of the medical evidence in chronological order.
Mr Slattery is aged 51. In his statement dated 25 June 2019[5] he refers to his employment history from 2012 to 2016 working at Bunnings as a team leader, forklift coach, pallet stacker coach and hi rise stock contractor. He then worked for the respondent from 14 November 2016 to 22 September 2017 working in timber yard sales, safety advisor, forklift driving, deliveries and customer service. From 19 March 2018 he was employed by Deltsong Pty Ltd which he says involved farm security, labouring and associated farm duties. This is his brother’s business.
[5] ARD p 362.
In his statement Mr Slattery describes his lumbar spine injury as occurring on 22 August 2017 and says he drove to Singleton Hospital that day after he reported the injury to Destiny, the respondent’s on-duty manager, and she called the manager Michael Nelson.
I pause here to note that Mr Slattery adamantly informed the Medical Assessor Dr Hyde Page that the date of injury was 17 August 2017, and that 22 August 2017 was the first day he saw his general practitioner. However, this is not borne out by Dr Sasitharan’s records[6]. Furthermore, the medical certificate issued by Dr Kumaravel Kaliyaperumal at Singleton District Hospital has the date of attendance at the Hospital’s Emergency Department as on 22 August 2017[7]. Mr Slattery’s counsel had amended the date of injury at the conciliation conference to 22 August 2017.
[6] ARD p 87.
[7] ARD p 147 and AALD p 462.
Dr Sasitharan issued a WorkCover NSW Certificate of Capacity dated 25 August 2017 stating that he first saw Mr Slattery that day for injury which had occurred on 22 August 2017. This is consistent with his clinical note. He describes the injury occurring when Mr Slattery pulled the timber from the track and he had back pain and sciatica[8]. The doctor certified that Mr Slattery had no current capacity for any employment from 22 to 29 August 2017. In the clinical note it is recorded that the back pain was 7/10 and Mr Slattery could not sit in a chair[9].
[8] ARD p 112 and AALD p 189.
[9] ARD p 87.
On 25 August 2017 at Dr Sasitharan’s request a lumbar CT scan was performed showing mild degenerative change at L5/S1 level and the L5 nerves exit was unimpinged and the disc bulge abuts but did not appear to compress the traversing left S1 nerve root[10].
[10] AALD pp 189 and 268.
The same level of certification was made on 30 August 2017[11] and it is written on the certificate that Mr Slattery “still pain 5/10”. On 31 August 2017 Dr Sasitharan answered the insurer’s questionnaire advising that Mr Slattery had a soft tissue injury to his back with muscular back pain. The mild degenerative changes on the CT scan were noted. The doctor recommended treatment with Mobic and physiotherapy[12].
[11] ARD p 116 and AALD p 193.
[12] AALD p 269.
On 4 September 2017 the doctor certified that Mr Slattery had no capacity for any employment from 5 to 6 September 2017 and then capacity for some employment for four hours per day as per roster from 7 to 8 September 2017[13]. In the corresponding clinical note Dr Sasitharan recorded that Mr Slattery’s back pain was 3/10 and he recommended pain killers and physiotherapy[14]. The doctor placed restrictions of less than 5 kg lifting/carrying, less than 10 kg pushing/pulling, no bending/twisting/squatting and normal sitting and standing provided if he got pain, he could rest. His driving ability was normal.[15] This level of certification continued in the certificate dated 9 September 2017[16] and in the clinical note for that day Dr Sasitharan recorded that Mr Slattery was going to finish work cover and his pain was 2/10 and he was still attending physiotherapy[17].
[13] ARD p 143 and AALD p 197.
[14] ARD p 89.
[15] AALD p 198.
[16] ARD p 128 and AALD p 202.
[17] ARD p 90.
On 16 September 2017 Dr Sasitharan recorded that Mr Slattery went back to work and he experienced pain in the back 3/10 and he wanted to go another three days on suitable work[18]. The certification was the same, excepting the lifting restriction was lifted to less than 10 kg[19]. On 20 September 2017 Dr Sasitharan issued a medical certificate stating that Mr Slattery was fit for pre-injury duties[20]. It has the following details of the management plan “pain killers/physiotherapy twice a week, for another 2 weeks”.
[18] ARD p 91.
[19] ARD p 132 and AALD p 212.
[20] ARD p 265.
In the doctor’s clinical note for 20 September 2017 he records back pain of “2/10 after work little more pain, pt go back to normal work.[21]” It was also noted he was to have physiotherapy for another two weeks. On 5 October 2017 Dr Sasitharan’s clinical note refers to a complaint of back pain of 4/10[22]. On 23 October 2017 it was noted that he had lost his job. There is no mention of back pain in the clinical notes for this consultation[23].
[21] ARD p 92.
[22] AALS p361.
[23] ARD p 93.
On 20 December 2017 Dr Sasitharan issued a certificate referring to a diagnosis of “back pain ? left sciatica aggravation of existing pain” and noting that Mr Slattery drove a tractor in a farm on 18 December 2017[24]. In the corresponding clinical note the doctor recorded that the back pain was 10/10[25]. Mr Slattery in his statement clarifies that he did not tell the doctor he was driving a farm tractor. He had been on a ride on lawn mower at a family function, but his back was painful as he rose from a chair. No issue has been taken by the respondent in its submissions regarding causation or liability following such recurrence. In this certificate Dr Sasitharan certified that Mr Slattery has no current capacity for any employment.
[24] ARD p121 and AALD p 87.
[25] ARD p 95.
On 27 December 2017 the insurer wrote to Dr Sasitharan asking for details of the recurrence noting on 20 September 2017 the doctor had certified him fit for pre-injury duties and then it received the certificate dated 20 December 2017 certifying that Mr Slattery had no capacity to work[26]. The doctor responded that Mr Slattery drove on a tractor on 18 December 2017 and aggravated his back pain. The doctor stated there was pain and tenderness at the same place as the previous injury. He states that when Mr Slattery resumed his work his back pain was 1/10[27].
[26] AALD p 280.
[27] ARD p 106.
On 2 January 2018 Dr Sasitharan certified that Mr Slattery had no current capacity for any employment from 23 December 2017 to 15 January 2018[28]. In the clinical note the back pain was rated as 6/10 and it was noted Mr Slattery had two visits to a chiropractor[29]. On 10 January 2018 the back pain was rated as 5/10 and on examination the doctor found mild back tenderness[30]. On 22 January 2018 Dr Sasitharan recorded the back pain was 6/10 and that he had left foot pain and was waiting to see a podiatrist[31]. It is likely this left foot pain does not relate to the back pain as there are references to Mr Slattery having left foot pain due to recurrent callosity and/or plantar warts on his foot[32].
[28] ARD p 139 and AALD p 82.
[29] ARD p 96.
[30] ARD p 98.
[31] ARD p 100.
[32] AALD p 307 and 340.
On 2 February 2018 Dr Sasitharan provided a Centrelink medical certificate stating that Mr Slattery was unfit for work from 2 February 2017 to 22 March 2018 noting he had back pain and left leg shooting pain and noted the treatment was pain killers and chiropractic consultations[33]. On 16 March 2018 in Dr Sasitharan’s clinical notes it is recorded that he did some work at the farm for two days and he was feeling better with back pain of 2/10[34]. It is noted he wanted to start working for his brother and was going to get legal advice. On 26 March 2018 the doctor records that Mr Slattery went to work at his brother’s place and had mild back pain and was taking pain killers. He did not have shooting pain[35]. Thereafter, there are no consultations recorded for a year.
[33] ARD p 25.
[34] AALD p 364.
[35] AALD p 364.
On 25 March 2019 Dr Sasitharan recorded that he wrote a referral for chiropractic treatment and one of the reasons for the visit was back pain[36]. On 24 April 2019 Dr Sasitharan records in his clinical notes that Mr Slattery had back pain after a spontaneous onset for eight days, sitting was rated as 2/10 but standing/walking at 8/10. On examination the doctor found sciatica[37] and referred Mr Slattery to Dr Salaria, orthopaedic surgeon, referring to the presenting complaint as left sciatica[38].
[36] AALD p 365.
[37] AALD p 365.
[38] ARD p 30.
On 30 April 2019 Dr Sasitharan recorded that Mr Slattery could not walk, his back pain was 10/10 and it was in the left posterior thigh/calf. He was prescribed Endone and Indocid[39]. On 14 May 2019 Dr Sasitharan issued a Certificate of Capacity stating that Mr Slattery had no current capacity for any work from 14 May to 28 May 2019[40].
[39] AALD p 366.
[40] ARD p 110.
On 14 May 2019 Dr Salaria reported that Mr Slattery was in a lot of pain, explaining that the disc injury in 2017 had progressed to herniation and sequestration of the disc fragment impinging on the S1 nerve root, resulting in severe pain and disability and he had to ingest heavy doses of Targin and Lyrica. Dr Salaria advised he had booked Mr Slattery in for urgent surgery[41]. On 16 May 2019 Mr Slattery underwent a CT guided right L5/S1 foraminal epidural steroid injection[42]. On 24 May 2019 Dr Salaria reported that Mr Slattery was having a lot of pain which was making it hard for him to sit, stand, or walk for long periods and so Mr Slattery had decided to self-fund the cost of the surgery[43]. On 27 May 2019 Dr Salaria performed an L5/S1 discectomy and decompression[44]. On 14 June 2019 Dr Salaria reported to Dr Sasitharan that Mr Slattery had increased pain in the buttock radiating to both lower extremities, which was starting to settle. Prednisolone as an anti-inflammatory was prescribed[45]. On 2 July 2019 Dr Salaria reported that Mr Slattery had minimal pain but there was local wound swelling and the doctor aspirated some fluid from it[46]. On 24 July 2019 Dr Salaria reported to Dr Sasitharan that Mr Slattery’s back and leg pain had improved, and he was to start reducing Lyrica medication. However, there were signs of swelling at the operation site[47]. On 21 August 2019 Dr Salaria reported that he aspirated clear fluid from the operation wound[48].
[41] ARD p 51 and AALD p 31.
[42] ARD p 40.
[43] ARD p 48.
[44] ARD p 47.
[45] ARD p 45.
[46] ARD p 44.
[47] ARD p 42.
[48] ARD p 41.

On 23 September 2019 Dr Chris Harrington, orthopaedic surgeon, who was qualified by the insurer, reported that he agreed that Mr Slattery’s current condition is a direct consequence of the original injury in 2017 when he worked at the timber yard. Dr Harrington states that the prolapse at L5/S1 is an aggravation of the 2017 injury and that the aggravation has not ceased.[49] At the time of Dr Harrington’s examination Mr Slattery was waiting to have the revision surgery as he had developed a meningocele. In terms of Mr Slattery’s capacity for work Dr Harrington advised that he is a well-spoken man, who had previously worked in sales and advertising in Sydney and he recommended vocational assistance as he had not done this type of work for a while. He said even if Mr Slattery had a good recovery from the surgery, he would not be fit for labouring work in a timber yard or farming.
[49] Reply p 13.
On 4 October 2019 Dr Salaria reported to Dr Sasitharan that revision surgery was undertaken, the report includes reference to the nerve root being exposed and decompressed as it was caught in scar tissue[50].
[50] ARD p 151.
On 17 October 2019 Dr Hopcroft, general surgeon, provided a medico- legal report for Mr Slattery. The doctor has details of Mr Slattery’s education and employment. He notes that he obtained the Higher School Certificate and undertook work as an advanced dark room operator, worked for QBE in green slip sales, worked as a landscape gardener and did home deliveries of produce. Mr Slattery also co-managed a Baker’s Delight store, did work laying floor tiles and as a farm labourer. It is noted he worked for four years with Bunnings as the occupational health and safety person before working for the respondent with duties including timber yard salesman, stock control, labourer and safety advisor. Dr Hopcroft formed the view that Mr Slattery was highly intelligent. After he recorded the details of injury and subsequent treatment, Dr Hopcroft opined that Mr Slattery has a permanently compromised capacity for work, and in the future, he will have to undertake light physical duties or sedentary work where forward bending, lifting and rotational manoeuvres are avoided[51].
[51] ARD p 5.
On 24 October 2019 Dr Porteous, occupational physician, provided Mr Slattery with a medico-legal report[52]. The doctor has a generally consistent employment history as recorded by Dr Hopcroft although noting for two years Mr Slattery sold roof racks and audio equipment in a retail shop. The work in advertising was the job as a dark room processor. Dr Porteous states that Mr Slattery is restricted from frequent or constant bending, heavy lifting, pushing, pulling or carrying. The doctor noted that work in retail can often involve moving stock with bending or moderate or heavy lifting and he says Mr Slattery would be restricted in performing such tasks. In relation to work such as selling insurance, Dr Porteous says it “can involve sustained standing and walking, which would likely aggravate his condition, but he would not necessarily be completely incapacitated from that.” The doctor believes that Mr Slattery has a substantially reduced capacity for work. He provides the view that many of the tasks in a job such as the one he performed at Bakers Delight would involve physical restrictions.
[52] ARD p 8.
On 20 December 2019 Dr Sasitharan issued a Centrelink medical certificate stating that Mr Slattery was unfit for work from 11 December 2019 to 11 February 2020[53]
[53] AALD p 338.
On 24 January 2020 Dr Salaria reported that Mr Slattery had increased pain since Christmas. Mobic was prescribed and it is noted physiotherapy was to resume[54]. On 11 February 2020 Dr Salaria reported that a repeat MRI scan showed nerve root scarring at the surgery site. He was to continue taking Lyrica and Panadol for the pain and to continue with the rehab exercise programme[55].
[54] ARD p 162.
[55] ARD p 167.
On 7 February 2020 Dr Sasitharan issued a Centrelink medical certificate advising that Mr Slattery was not fit for work from 7 February 2019 to 4 May 2020[56]. The clinical note for 13 March 2020 refers to pain being worse at 8/10 and being good after physiotherapy[57]. On 9 April 2020 Mr Slattery attended Dr Sasitharan with back pain[58]. On 4 May 2020 another Centrelink medical certificate was issued to cover the period to 4 August 2020[59]. In July 2020 there are further attendances with complaints of back pain[60].
[56] ARD p 29 and AALD p 341.
[57] AALD p 369.
[58] AALD p 370.
[59] AALD p 348.
[60] AALD p 371.
On 9 June 2020 Emmalee Harris, exercise physiologist, reported to Dr Salaria and Dr Sasitharan that Mr Slattery had commenced a targeted exercise program to strengthen his deep spinal strength. She noted that he advised that the previous program he was performing had increased his lower back pain[61].
[61] AALD p 46.
On 14 July 2020 Dr Salaria reported that Mr Slattery still has on and off buttock and left leg pain but overall, he seems to be managing better. He was advised to continue physiotherapy and use Mobic and Panadol when needed. Dr Salaria referred him to Hunter Integrated Pain Services at John Hunter Hospital for pain management[62].
[62] AALD p 375.
On 28 July 2020 Ms Harris reported that Mr Slattery had been attending for six weeks and he reported he was no longer getting his mid lower back pain as regularly but was still struggling with his tailbone pain[63].
[63] AALD p 45.
On 4 August 2020 a further Centrelink medical certificate was issued by Dr Sasitharan stating that Mr Slattery was unfit for work from that date to 3 November 2020[64].
[64] ARD p 271.
On 24 August 2020 Dr Sasitharan provided a report in which the doctor does not really assess Mr Slattery’s work capacity, however, he records that Mr Slattery said he cannot go back to work now due to his back pain and he believes he cannot do any type of work in the future[65].
[65] ARD p 17.
On 6 October 2020 Dr Salaria provided a medical report for Mr Slattery’s solicitors[66]. He states that Mr Slattery first presented with severe back and leg pain since an exacerbation on 15 April 2019. He said this started spontaneously at home while he was standing up after having sat with his dogs for some time. Dr Salaria also notes that Mr Slattery had been having recurrent back pain since the injury in 2017. He states that because Mr Slattery experienced recurrent episodes of back pain on any physically strenuous activities he could not find work until his brother obliged him with some light work at his farm. Dr Salaria relates that the MRI scan dated 12 May 2019 showed a large L5/S1 left paracentral sequestrated disc herniation and because of severe disabling pain he underwent L5/S1 discectomy surgery on 27 May 2019 and revision surgery on 4 October 2019. He advised that Mr Slattery’s back pain had never resolved since the first back injury in 2017 and the L5/S1 sequestrated disc herniation in May 2019 while he was just sitting at home was an exacerbation of the 2017 injury.
[66] ARD p 18.
Dr Salaria advises that Mr Slattery would only be fit to do light duties which do not involve prolonged standing, driving, sitting, walking on uneven surfaces, repetitive bending/twisting activities or heavy lifting more than 5kgs. He states that Mr Slattery may be fit to do light duties for eight hours four days per week[67].
[67] ARD p 19.
In a different report dated 10 October 2020 Dr Salaria[68] has an incorrect history that Mr Slattery has been unable to work since the time of the injury. The doctor notes that Mr Slattery has been managing his pain by resting, physiotherapy and analgesics as needed. Dr Salaria opines that Mr Slattery is unfit to return to any manual labouring job, but he may be able to do some lighter jobs if available closer to his residence. The doctor specifies that Mr Slattery has a 30-minute standing, walking and driving ability and a lifting restriction of 5kgs. He also adds that he should not bend from the waist, kneel or squat but he can reach above his shoulder. The doctor states he expects Mr Slattery could perform light duties but that he may not be qualified for office type work.
[68]AALD p 3.
The records of Dr Sasitharan have various serial reports from Dr Salaria that refer to Mr Slattery suffering from psychological symptoms[69], also a report from Barbara Aldrich, the treating psychologist dated 1 April 2020[70] and reports from Dr Manoj Baruah, treating psychiatrist dated 7 August 2020[71] and 14 December 2020[72]. The respondent in its submissions at [38] submits that there is no claim made for anxiety and depression or any other psychological condition. I note the ARD form does not include a claim for secondary psychological condition and no application was made by Mr Slattery to include the same in these proceedings. His counsel’s submissions in reply do not address this submission of the respondent and I consider without a claim having been made in the proceedings I cannot take into account the psychological symptoms when considering Mr Slattery’s capacity for employment.
[69] AALD p 11.
[70] ARD p 155.
[71] AALD p 383.
[72] AALD p 386.
On 7 December 2020 Dr Sasitharan issued a further Centrelink medical certificate stating Mr Slattery was unfit for work from 3 November 2020 to 2 February 2021 (the certificate is incorrectly dated 07/12/2021)[73]
[73] AALD p 349.
Medical Assessor Dr Hyde Page issued his Medical Assessment Certificate dated 8 March 2021 finding 14% whole person impairment in relation to the injury to the lumbar spine. He found Mr Slattery to be straightforward in his answers and there was no suggestion of any embellishment or exaggeration. On examination the doctor found no radiculopathy other than an absent left ankle reflex but noted that Mr Slattery had marked low back pain and stiffness. He considered that Mr Slattery needs assistance with heavier domestic tasks and shopping. The doctor took a history that Mr Slattery has always done manual work, originally qualifying as a baker, then a self-employed landscape gardener, working for Bunnings and the respondent. He described the work with Deltsong Pty Ltd as involving gardening and security work.
In addition to Mr Slattery’s statement dated 25 June 2019[74], referred to earlier, he has also produced a statement dated 20 June 2020[75] and an undated statement commenting on the reports of Dr Hopcroft and Dr Porteous[76]. These have been read and considered by me.

Mr Slattery’s submissions
[74] ARD p 362.
[75] ARD p 353
[76] ARD p 361.

Mr Slattery’s counsel submits that notwithstanding he was issued with a certificate on 20 September 2017 that he was fit for pre-injury duties, this certificate needs to be considered in the context of all the evidence. It is submitted that he was still receiving physiotherapy and being prescribed pain killers. The observation was made by counsel that the preceding certificate restricted him to only four hours per day as rostered and the roster at that time was for two days per week.
It is argued that Mr Slattery’s true capacity as at 20 September 2017 was not that he was fit for his pre-injury duties. Attention was drawn to the entry by Dr Sasitharan in his clinical notes for that day that Mr Slattery wanted to “go back to normal work” despite the recorded complaints of continuing and fluctuating pain. To bolster this submission, it was observed that in the time following the dismissal of employment the clinical records show that Mr Slattery had increasing back pain and he was still having physiotherapy. It is submitted that the medical evidence reveals Mr Slattery had ongoing and fluctuating symptoms of pain and restriction. Mr Slattery’s counsel summarised the medical evidence to illustrate this.
Mr Slattery’s counsel submits that since he ceased work for the respondent, he has not been able to find any real work given his age, skills, injury and consequent disabilities. It was submitted that the employment on his brother’s farm was such that there were no strenuous activities and the only machinery he operated was a ride on mower. It was submitted that the work that he did for his brother did not cause injury to his back and that his brother was a sympathetic employer. It is argued, relying on Dewar, that this work was not a real job and that it was manufactured to accommodate his injury. At [27] it was submitted that the work with Mr Slattery’s brother does not accurately reflect his capacity as it “consisted of curated gardening activities which were limited to very light activities” and there was no heavy lifting or manual labour. It was argued that this work does not fall within the requirements in section 32A of the 1987 Act.
At [26] of the submissions it is argued up until Mr Slattery obtained employment with his brother it should be found he had limited capacity for employment. It is noted he was paid pursuant to section 36 of the 1987 Act from 22 August 2017 to 9 September 2017. For the period from 10 September 2017 to 20 November 2017 this would also fall under section 36, as part of the first 13-week entitlement period. The claim at [32] is at the rate of $715.49 based on him being able to work eight hours per week.
The next period claimed falls under section 37 of the 1987 Act, from 22 November 2017 until 18 March 2018. The rate claimed in this period at [32] is $715.48 and it is stated he should be regarded as having no capacity in this period. Counsel does not clearly state why there would be a change in capacity in this period, although there is reference to the flare up on 18 December 2017, after which time he was certified to have no current capacity for employment.
From 19 March 2018 to 13 April 2019 Mr Slattery worked for his brother’s company Deltsong Pty Ltd and makes no claim in this period as he received wages of $798.08 per week.
It was submitted that from April 2019 Mr Slattery has had no current capacity for employment due to a flare up of his lumbar pain and subsequent surgeries and treatment. It is submitted that the medical consensus was that he had no current capacity for employment. However, counsel notes in about October 2019 Mr Slattery was certified as fit for some employment with significant restrictions as discussed by Dr Hopcroft, Dr Harrington and Dr Porteous. It is argued that more weight should be given to the opinion of Dr Porteous than that of Dr Salaria because he is an expert occupational physician. Counsel refers to Dr Salaria’s opinion as “aspirational rather than realistic”. It is argued that Dr Porteous has taken into account Mr Slattery’s age, education, the nature of his incapacity and restrictions and his transferable skills and found that he is essentially unemployable. Therefore, Mr Slattery seeks a finding that he has no current capacity for suitable employment from April 2019 to date and continuing.

Respondent’s submissions

The respondent relates in it submissions various entries in Dr Sasitharan’s clinical notes for September 2017 and argues that, contrary to Mr Slattery’s submissions, these entries do accurately reflect his capacity for employment. The respondent acknowledges that when the doctor certified Mr Slattery as being fit to return to some duties on a restricted basis, Mr Slattery was still taking pain killers and having physiotherapy treatment. However, it argues that the records show his pain levels reduced from 3/10 to 2/10 from 4 to 9 September 2017 and in the following two visits it was 3/10 and then 2/10. The respondent argues this would show Mr Slattery was coping quite well with the duties he was performing for the respondent. It states that Mr Slattery has not given evidence what these duties were, but when he was terminated, he had been certified fit for pre-injury duties.
The respondent challenges the submission made by Mr Slattery’s counsel that the certification of being fit for pre-injury duties was made at Mr Slattery’s request because he wanted to return to normal work. I note Dr Sasitharan’s entry for 20 September 2017 is brief and just states “pt to go back to normal work”.
The respondent submits that after Mr Slattery was terminated, he says he went onto Newstart allowance and looked for alternative work however, he does not give evidence as to the kind of work he applied for.
It is submitted that Mr Slattery had a capacity to work in suitable employment even after his employment was terminated. The respondent submits that work such as he did for Bunnings would have been suitable employment, perhaps as a customer service officer, and meets the requirements in section 32A of the 1987 Act because he could sit and stand at will. It is submitted that this is a real job and likely to pay between $20 to $25 per hour. Therefore, the respondent argues between 22 September 2017 to March 2018 he could earn at least $800 per week working full time. It was submitted that 80% of his PIAWE is $715.49 and if it were accepted, he could earn $800 in suitable employment he would not be entitled to an award of weekly compensation.
It is further argued that if the Commission found Mr Slattery could work in suitable employment for 25 hours per week, he could have earned $500 per week in the first period claimed and on that scenario would have a loss of $350 per week, dropping to $215.49 per week in the period of 25 November 2017 to 18 December 2017.
After the flare up on 18 December 2017 the respondent submits Mr Slattery would probably be entitled to weekly compensation at the rate of 80% of his PIAWE until 18 March 2018, when he commenced work on his brother’s farm.
In relation to the period after the flare up on 15 April 2019 the respondent acknowledges Mr Slattery was certified unfit to work and underwent the two surgical procedures. However, it submits that at least about six months after the surgery, so from April 2020, Mr Slattery should be found to have been fit for suitable employment.
The respondent outlines the various medical opinions ranging from that of Dr Salaria (that Mr Slattery was fit for light work for eight hours per day, four days per week) to Dr Hopcroft’s view that in due course he could undertake light physical or sedentary work and Dr Porteous’s view that Mr Slattery could not do manual work but he may be able to work in sales, such as on the phone. It was also noted Dr Harrington thought that labouring work was beyond Mr Slattery’s capability, but work in sales or advertising may be suitable.
It was submitted that if the Commission determined the entitlement based on Dr Salaria’s opinion work such as at Bunnings as a customer service representative would be suitable employment at 32 hours per week earning $25 per hour, totalling $800 per week. It was submitted that as this amount exceeds 80% of the PIAWE there should not be an award in Mr Slattery’s favour at least from 6 October 2020, being the date of Dr Salaria’s opinion. An award for the respondent is therefore sought by the respondent from this date.

Mr Slattery’s submissions in reply

Mr Slattery’s counsel makes the point again that even though Mr Slattery went back to work in September 2017 the totality of the evidence suggests he was not fit for his normal work when he was terminated because his pain was increasing, and he was continuing to have physiotherapy treatment.
In relation to the respondent’s submissions about work at Bunnings being suitable employment, it is argued that commonsense and the Commission’s experience would result in an awareness that such work would involve lifting items, moving stock around, assisting customers with items, standing and walking. Dr Porteous’s opinion was relied upon that Mr Slattery could not do sales work as it requires prolonged and sustained standing and walking.

Determination

10 September 2017 to 20 November 2017

The first period for which weekly compensation is claimed is from 10 September 2017 to 20 November 2017. This period falls within the first entitlement period in section 36 of the 1987 Act. The claim made in Mr Slattery’s submissions for this period is at $715.49 per week and it is stated in brackets beside this claim “able to work 8 hrs per wk”.

The evidence about Mr Slattery’s capacity for employment in this period is not very detailed.
The medical certificate issued by Dr Sasitharan on the day before the start of this period certified Mr Slattery fit for four hours per day as per his roster with the restrictions on his capacity previously noted in these reasons. The doctor made this certification to cover the period from 9 to 16 September 2017. The next certificate issued was on 16 September 2017 for the same hours but an increase to less than 10kg lifting restriction. This certificate covered the period to 20 September 2017.
However, on 20 September 2017 Dr Sasitharan issued a medical certificate stating that Mr Slattery was fit for pre-injury duties[77]. It has the following details of the management plan “pain killers/ physiotherapy twice a week, for another 2 weeks”. Mr Slattery says at [11] in his first statement he attempted to return to work on light duties, but he was terminated on 22 September 2017.
[77] ARD p 265.
He does not say in his statements what the light duties comprised. The history to Dr Hopcroft was that he returned to work in a light duties capacity for about four weeks but after taking two days annual leave he was told he was to be terminated on 22 September 2017. The history to Dr Porteous was after the injury he had four weeks off work and went back on light duties for two days, then he had two days annual leave and he was due to go back and start returning to his normal job when he received a text message telling him there was no further work for him. Dr Harrington’s history is that Mr Slattery was terminated before he was able to do any duties.
Mr Slattery argues that that the certificate of 20 September 2017 should not be accepted as an accurate reflection of his capacity at that time due to him still being treated for pain. It is submitted that the clinical notes of Dr Sasitharan for that day show that he wanted to go back to normal work despite the recorded complaints of continuing and fluctuating pain.
I accept the respondent’s submission that there is no evidence that the doctor’s certification of him being fit for pre-injury duties was at Mr Slattery’s request because he wanted to return to work. The doctor’s note is brief stating “pt comes with back pain 2/10 after work little more pain, pt go back to normal work”. I cannot conclude from this note that it was Mr Slattery pushing to go back to work despite medical advice.
I find when viewing all of Dr Sasitharan’s records and certificates leading up to and during this period it seems reasonably clear that the doctor was attempting a graduated return to pre-injury duties. The reality is that because Mr Slattery was terminated a short time after the certificate of 20 September 2017, and noting he had two days annual leave, it does not appear that he undertook full pre-injury duties and it is therefore not known if he would have been able to perform the same. On 19 September 2017 EML wrote to Dr Sasitharan to advise an Injury Management Plan had been developed. It is stated that the goal was to return Mr Slattery to return to pre-injury duties by 22 September 2017[78].
[78] AALD p 277.

However, the evidence after Mr Slattery was terminated until the flare up on 18 December 2017 is also limited. There is only one consultation in which back pain is recorded, that is on 5 October 2017 where his pain was 4/10.
Mr Slattery has the onus of proof and his statement is also quite brief for this period. At [15] he says for the next few months he tried to find alternate work, but he says he was unable to do so because of his injuries. He does not say what type of work he was seeking. At [16] he says the pain in his lower back was still quite severe and he would often wake in the morning with aching pain in his lower back. He says the pain would radiate down his left leg.[79]
[79] ARD p 354.
The claim is from 10 September 2017 to 20 November 2017. Clearly for part of this period he was performing light duties for the respondent but as the respondent points out in their submissions the details are lacking. The respondent submits that Mr Slattery had a capacity to continue to work in suitable employment such as with Bunnings, which he had done previously. It submits a customer service officer would have been likely to earn in the range of $20 to $25 per hour. It submits for the first entitlement period to 24 November 2017 Mr Slattery had a current capacity to earn in suitable employment $500 per week, calculated on $20 per hour for 25 hours per week. Therefore, in the balance of the first entitlement period the respondent asserts Mr Slattery should receive $350 per week compensation, being 95% x PIAWE of $894.36 less $500.
In reply Mr Slattery’s counsel submits that work at Bunnings is not suitable employment as I can rely on my experience and find that such work would involve some lifting of items, moving stock, standing and walking. He also relies on Dr Porteous’s opinion that Mr Slattery could not do sales work as it requires prolonged and sustained standing and walking.
These submissions are not much assistance when dealing with the claim for the balance of the first entitlement period. Dr Porteous’s opinion was provided in October 2019 after Mr Slattery had the flare up in December 2017, after which Dr Sasitharan certified Mr Slattery unfit for work and after the flare up in April 2019 after which time Mr Slattery had difficulty walking and which led to surgery in May 2019. Dr Porteous’s opinion is not directed towards this early period.
While the evidence is scant, I find that Mr Slattery had not demonstrated that he in fact could perform his pre-injury duties and hours before he was terminated. It has to be borne in mind his pre-injury duties were quite physical. This is evident from the task he was performing when injured, moving hardwood timber planks. While Dr Sasitharan had issued a fit for pre-injury duty certificate, I am persuaded that this has to be considered in light of the fact that it was one step in the goal of returning Mr Slattery to work. Before this certification the doctor had been gradually upgrading the certification and restrictions relevant to Mr Slattery’s capacity for employment, such as his lifting capacity. On 16 September 2017 the lifting restriction was raised from less than 5 kg to less than 10 kg. The other piece of evidence that causes me to doubt that Mr Slattery could have performed his full pre-injury duties and hours is that the estimate of Mr Slattery’s pain doubled from 2/10 on 20 September to 4/10 on 5 October 2017 when he had not been working. The other relevant evidence, I find, is to bear in mind that when Dr Sasitharan first examined Mr Slattery after the injury, he records back pain with sciatica. Even though the CT scan showed there was no impingement at the L5 nerve exit the radiologist did find the disc bulge abutted the nerve, although it did not appear to compress the nerve. The presence of sciatica suggests an injury of some degree of significance.
In the insurer’s letter, which calculates the PIAWE figure, it is stated that Mr Slattery pre-injury worked 38 hours per week with some overtime[80]. While Mr Slattery’s symptoms were improving, I consider on the balance of probabilities it is more likely than not that he could not have sustained a full time 38 hour per week job doing the physical duties and performing tasks such as moving hardwood planks. So, I find he had an inability to return to pre-injury employment.
[80] ARD p 349.
However, I find that the evidence supports a finding that he had a current work capacity as defined as an inability to return to pre-injury employment but is able to work in suitable employment. This is the main area of dispute in the case as to what constitutes suitable employment.
Having regard to the definition of suitable employment, I have discussed the medical information above. Taking into account Mr Slattery’s age at the time, his education, skills and work experience to which I have referred previously I find he would not be limited to physical work. A number of doctors have commented on how intelligent he is, and he has had experience, albeit some time ago, in green slip sales as noted by Dr Hopcroft. Section 32A does not permit me to take into account availability of work and his place of residence. He also has experience as an occupational health and safety officer, and he managed a Baker’s Delight business. Therefore, I find it is not accurate to categorise Mr Slattery as a worker with only manual labour type experience and skills. I find he would have some transferable skills for work not involving manual labour. I have taken into account that work as a manager at Bakers’ Delight was likely to have involved some lifting which he could not do in this period.
In this period, even though I have not been persuaded that Mr Slattery could perform full time pre-injury duties his symptoms were not as serious as later, after the flare ups. Therefore, I find his counsel’s submissions that he should be compensated at the rate of $715.49 per week to be unrealistic and seems to be based on him being able to work just eight hours per week. I find that he could earn the figure nominated by the respondent of $20 per hour in sedentary phone sales type work such as green slip sales. In this period, I accept the respondent’s submission that 25 hours per week would represent suitable employment on the basis of all of the evidence I have discussed above. Therefore, I find that Mr Slattery had a capacity to earn in suitable employment $500 per week.
Therefore, I find in this period from 10 September 2017 to 20 November 2017 pursuant to section 36(2) of the 1987 Act Mr Slattery has an entitlement to 95% of his PIAWE of $894.36 which equals $849.64 less $500 equals an entitlement to weekly compensation of $349.64. It seems from the evidence in part of this period Mr Slattery was doing some light work for the respondent. Neither party has identified the amount of such payments in their submissions and the wages schedule in the ARD is not correct because as I stated earlier at [23] of these reasons Mr Slattery’s counsel makes a claim for a different period than that set out in the ARD. Therefore, it is appropriate that I make an order that in this period that the respondent is to have credit for payments made to Mr Slattery.

From 22 November 2017 to 18 March 2018

The next period claimed in Mr Slattery’s submissions is from 22 November 2017 to 18 March 2018. This period falls under section 37 of the 1987 Act. The claim is at the rate of $715.48 per week and it is stated this is 80% of the PIAWE on the basis Mr Slattery had no current capacity for employment in this period.
The respondent submits in this period Mr Slattery could perform work in suitable employment such as customer service where he could sit and stand at will and walk when needed to show customers items, it is submitted that he could earn $800 per week based on $20 per hour and if that was accepted an award for the respondent should be made because this is higher than 80% of the PIAWE figure. Their alternate submission is Mr Slattery could work 25 hours per week and earn at least $500 per week. The respondent submits an award should be made on this basis from 25 November 2017 to 18 December 2017 when Mr Slattery had a flare up of his lumbar condition. It concedes thereafter he would be entitled to 80% of the PIAWE until 18 March 2018 when Mr Slattery commenced work with Deltsong Pty Ltd.
There is no additional medical evidence from 22 November 2017 until the flare up on 18 December 2017. The only reason the period has been broken up the way it has is to reflect the change after the first 13-week entitlement period under section 36 to the start of the second entitlement period at week 14 under section 37. The formulas for a worker’s entitlement differ in each period.
Therefore, I make the same finding as to Mr Slattery’s capacity for the reasons set out above. I find he had a current capacity to earn in suitable employment $500 per week from 22 November 2017 until 18 December 2017. Under section 37(3) of the 1987 Act he is entitled to 80% of the PIAWE being $715.49 less the $500 resulting in an entitlement of $215.49 per week.
In the remainder of the period from 19 December 2017 until 18 March 2018 the respondent has conceded that Mr Slattery has no current capacity for employment and is entitled to 80% of PIAWE which is $715.49 per week. This is an appropriate concession as the medical evidence from Dr Sasitharan was that Mr Slattery had no capacity for employment after the flare up. I have summarised this evidence earlier in these reasons.
On 18 March 2018 Mr Slattery commenced work with Deltsong Pty Ltd and his earnings are such that he makes no claim for compensation while he was in that employment.

From 16 April 2019 to 19 September 2019

On 15 April 2019 Mr Slattery experienced a further flare up and did not work for Deltsong Pty Ltd after that date. As described in the summary of the medical evidence Mr Slattery was certified unfit for any employment and underwent L5/S1 discectomy and decompression surgery on 27 May 2019 and had further surgery on 4 October 2019 due to complications.
The reason this period ends on 19 September 2019 is stated in Mr Slattery’s submissions as being due to the end of the first 52 weeks after which time the PIAWE figure reduces.
In this period Mr Slattery seeks an award of weekly compensation on the basis that he had no current capacity for any employment. He seeks 80% of the PIAWE, which is $715.49 per week.
The respondent submits at [35] that at least from about six months after the surgery, that is from April 2020, he was fit for suitable employment. It is therefore, conceding an entitlement in this period on the basis of Mr Slattery having no current capacity for any employment. I consider the medical evidence in the period does support such a finding. Accordingly, in this period I find Mr Slattery has an entitlement to weekly compensation at the rate of $715.49 per week.

From 20 September 2019 to 18 March 2021

This claim is expressed in Mr Slattery’s counsel’s submissions as from “20/9/2019 to date and continuing (78 weeks remaining) at $625.80 per wk (no suitable employment- 80% base rate)”. On my calculation the 78 weeks ends on 18 March 2021. This is the end of the second entitlement period.
The reference to the base rate is to the applicable PIAWE figure after 52 weeks when it reduced. The respondent at [34] of its submissions agrees 80% of the PIAWE after 20 September 2019 is $625.80 per week.
As noted above the respondent does not argue up to April 2020 that Mr Slattery had capacity for suitable employment. The area of contention in their submissions is from that date.
The respondent submits from this time Mr Slattery was fit for suitable employment and relies on the opinion of Dr Salaria dated 6 October 2020 that Mr Slattery could work eight hours per day four days per week performing light duties not involving prolonged standing, driving, sitting, walking on uneven surfaces, repetitive bending/twisting or lifting more than 5 kg. the respondent submits work such as at Bunnings as a customer service representative would be suitable employment in accordance with section 32A. The respondent seeks an award in its favour as such employment would pay $800 per week and this is more than 80% of the $625.80 applicable PIAWE figure.
In Mr Slattery’s submissions the same passages from Dr Salaria’s report are referred to. However, at [30] it is argued that more weight ought to be given to the opinion of Dr Porteous than to Dr Salaria because Dr Porteous is an expert occupational physician. Counsel submits Dr Salaria’s estimate of Mr Slattery’s capacity is aspirational rather than realistic. At [27] counsel submits that Mr Slattery’s evidence is that he is significantly restricted as set out in his statement. It is noted he is taking heavy opioid painkillers. It is submitted that he has mainly worked as a labourer, although counsel acknowledges that he has a history of sales work. It is further submitted that it is difficult to identify a real job in employment that he could obtain and retain.
It is submitted that Dr Porteous did not consider that Mr Slattery could do any sales work. This is said to be because this involves prolonged and sustained standing and walking and Dr Porteous found this would not be suitable for Mr Slattery. However, this is not an accurate summation of Dr Porteous’s opinion. He states, “working in selling insurance by phone and or appointments and sometimes cold calling can involve sustained standing and walking, which would likely aggravate his condition, but he would not necessarily be completely incapacitated from that.”
Dr Porteous finds that Mr Slattery cannot undertake physical tasks such as bending, lifting and sustained standing and walking. He finds he has a substantial reduction in capacity. Dr Porteous examined Mr Slattery on 24 October 2019, just three weeks after the second surgery. Dr Hopcroft examined Mr Slattery two weeks after that surgery. Dr Harrington examined him before the surgery. I find it is difficult to determine the matter based on these three experts’ opinions because of when they examined Mr Slattery.
Dr Salaria and Dr Sasitharan on the other hand have continued to see Mr Slattery and so I find they are in a better position to provide an opinion as to his capacity for employment. Like all of the doctors Dr Salaria finds Mr Slattery unfit for physical work and states he can only do light duties which do not involve prolonged standing, driving, sitting, walking on uneven surfaces, repetitive bending/ twisting activities or heavy lifting more than 5kgs. He concludes by stating “He may be fit to do light duties for 8 hours four days per week”. Earlier I found Mr Slattery could have capacity to do telephone sales as that would be light work, but that was before the flare up in April 2019 and the surgeries. However, Dr Salaria rules out prolonged sitting, which I find would make problematic work such as telephone sales. Dr Salaria does not explain how Mr Slattery could do light duties for eight hours per day.
The respondent has relied on Dr Salaria’s opinion, however, the work they suggest, such as at Bunnings or as a sales assistant, involves prolonged standing and even if Mr Slattery could be accommodated in not having to lift goods, I find that it is not suitable work due to the standing component, which Dr Salaria has ruled out.
The only other more recent medical evidence available is that of Dr Sasitharan who issued Centrelink medical certificates covering the period 7 February 2020 to 3 November 2020 certifying Mr Slattery as being not fit for work and on 7 December 2020 the doctor issued a further certificate to cover the period to 2 February 2021, also finding Mr Slattery unfit for work.
Mr Slattery is aged 51. It is unfortunate that since his surgery he has not had rehabilitation or vocational services provided to him. By all accounts he is intelligent and, while he undoubtedly cannot perform physical work, he has many years ahead of him and assistance for him to find some sort of light work even of a part time nature would be obviously beneficial for him. Dr Harrington flagged that Mr Slattery would need vocational assistance.
However, I have to determine Mr Slattery’s capacity based on the evidence presently before the Commission and most of the expert opinion is around the time of his second surgery in 2019. I consider that weight should be afforded to the more recent evidence from his treating doctors. Dr Salaria suggests light work may be possible, but I find his estimate of eight hours per day to be unrealistic given the number of restrictions Dr Salaria places on Mr Slattery, which includes prolonged sitting as well as standing. The doctor also does not actually nominate what sort of light work may be suitable and, without such evidence, I find it would be unsound for me to speculate. The respondent’s submission is confined to work such as at Bunnings being suitable employment. However, I have explained why I do not accept this contention. Work as a sales assistant whether at Bunnings or elsewhere involves prolonged standing. There is no actual medical evidence before me of a light job that is within Mr Slattery’s restrictions. Dr Sasitharan has treated Mr Slattery for many years and his certification in this period is that Mr Slattery is unfit to work.

Having considered all of the matters in section 32A of the 1987 Act, I determine based upon the number of restrictions on his employment, his continuing symptoms, need for medication and accepting Dr Sasitharan’s medical certificates and the fact that Mr Slattery has not had any rehabilitation or vocational services, I find that he has no current capacity for suitable employment in the period from 20 September 2019 to 18 March 2021. Accordingly, pursuant to section 37 of the 1987 Act I find that Mr Slattery is entitled to an award of $625.80 per week in this period.

[2021] NSWPIC 181

11 June 2021