Stoermer v Coates Hire Operations Pty Ltd - [2021] NSWPIC 27

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stoermer v Coates Hire Operations Pty Ltd [2021] NSWPIC 27
APPLICANT:	Wolfgang Stoermer
RESPONDENT:	Coates Hire Operations Pty Ltd
MEMBER:	Mr Paul Sweeney
DATE OF DECISION:	16 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly compensation for alleged back injury caused by nature of the worker’s employment; where worker did not report injury, seek medical treatment, or lose time prior to cessation of his employment for intercurrent medical condition; where respondent’s witnesses corroborate complaints of back pain by the worker while performing heavy work; where near unanimous medical evidence that worker suffered injury; Held- finding of exacerbation of pre-existing degenerative disease; award for worker on the basis of partial incapacity.
DETERMINATIONS MADE:	1. The applicant suffered injury to his low back arising out of and in the course of his employment on and prior to 8 August 2018 namely the exacerbation of pre-existing degenerative changes. 2. The applicant’s employment was the main contributing factor to exacerbation of the pre-existing degenerative changes. 3. The notional date of injury for the purposes of section 16 of the Workers Compensation Act 1987 (the 1987 Act) is 9 August 2018 the first date of incapacity. 4. As a result of the injury the applicant has been unable to perform arduous work involving lifting, bending, operating vibrating machinery, and driving heavy vehicles. 5. It is agreed that the applicant’s pre-injury average weekly earnings was $1,500 per week at all material times. 6. In some suitable employment as that term is defined by section 32A of the 1987 Act the applicant has been able to earn this $760 per week from 9 August 2018 to 31 December 2019 and $798 from 1 January 2020. 7. Award for the applicant pursuant to sections 36 and 37 of the 1987 Act as follows: · $665 per week from 9 August 2018 to 8 November 2018; · $402 per week from 9 November 2018 from 9 November 2018 to 4 February 2021. 8. Liberty to the parties to apply in relation to the above calculations. 9. Respondent to pay medical and hospital expenses pursuant to section 60 in respect of injury to the applicant’s back.

STATEMENT OF REASONS

INTRODUCTION

Before 6 August 2018, Wolfgang Stoermer (the applicant) was employed by Coates Hire Operations Pty Ltd (the respondent) at its Coffs Harbour branch as a yardman/labourer. In August 2016, the applicant developed a psychological condition. He ceased work on 8 August 2018 and sought medical attention for his illness. He has not worked since that time.
He alleges that his psychological illness was caused or materially aggravated by interpersonal conflict and several specific incidents which took place in the course of his employment. The respondent, however, disputes that the applicant suffered a psychological injury and disputes that it is liable to pay compensation to the applicant for an incapacity for work connected with his psychological condition.
Subsequently, the applicant alleged that he was also incapacitated for work by reason of a back injury resulting from the arduous nature of his employment. He formally made a claim for compensation in respect of that injury on 5 February 2019. According to the Application to Resolve a Dispute (the Application), the cause of the injury was as follows:
“The applicant sustained injuries to his lower back due to the nature and conditions of his employment. He described his duties as involving various manual handling tasks that required repetitive heavy lifting and bending. He was required to drive a work vehicle that frequently bottomed out causing significant pain and discomfort in the lower back. The worker ceased work in August 2018 due to an unrelated psychological injury caused during his employment, a claim in relation to the lower back was made in February 2019.”
The respondent also disputes that the applicant suffered injury to his lumbar spine in the course of his employment with the respondent. By a section 78 Notice dated 18 July 2019, the respondent’s insurer, EML, also asserted that the applicant’s employment was not a substantial contributing factor to his injury in accordance with section 9A of the Workers Compensation Act 1987 (the 1987 Act) and, if the applicant’s condition was a disease, the employment was not the main contributing factor to the aggravation etc. of the disease injury.
The declinature of liability was primarily based upon the opinion of Dr Walls, an occupational physician who provided a report to EML on 13 August 2019. In short, Dr Walls expressed the opinion that the applicant suffered from age-related degenerative changes and was fit for full-time hours on suitable duties.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claimed weekly compensation from 5 February 2019 to date and continuing as a result of both the alleged psychological injury and the physical injury to his lumbar spine. He also sought permanent impairment compensation in respect of his psychological injury pursuant to section 66 of the 1987 Act . Finally, he sought reimbursement of his medical and hospital expenses pursuant to section 60.
When the matter came on for conciliation and arbitration in the Commission on 2 February 2021, Ms Goodman, of counsel, appeared for the applicant and Mr Hanrahan of counsel appeared for the respondent. A substantial proportion of the time allocated for the conciliation conference and arbitration hearing was taken up with argument in respect of the admissibility of a factual investigation report from Procare, which had been served upon the applicant’s solicitors in the days leading up to the arbitration hearing.
As this evidence was only relevant to the allegation of psychiatric injury, I ruled that the remaining time available should be utilised to hear argument in respect of the allegation of physical injury. It was evident at that time that the parties were unable to reach a mutually satisfactory outcome in relation to the overall claim. I am satisfied that the parties, who were represented by experienced counsel, had ample opportunity to consider and implement a settlement but were unable to do so in the circumstances of this case.
After hearing argument in respect of the physical injuries, I ordered that the parties file and serve written submissions dealing with the admissibility of the contentious documents, on the question of pre-injury average weekly earnings (PIAWE), and the issue of psychological injury.
On 19 February 2021, the applicant lodged a Notice of Discontinuance by which he discontinued his claim in respect of the psychological injury. Accordingly, these reasons will only address his physical injury and its economic consequences. At the arbitration hearing, Mr Hanrahan also put in issue the quantum of compensation to which the applicant was entitled if he established injury. The applicant did not quibble with this.

EVIDENCE

The documents in evidence before the Commission are as follows:
(a)     the Application and the documents attached;
(b)    The Reply and the documents attached;
(c)    An Application to Admit Late Documents lodged on 7 December 2020 and t in he documents attached, and
(d)    Applications to Admit Late Documents dated 20 January 2021, 27 January 2021 and 2 February 2021 and the documents attached to each.
Although there was extensive argument as to the admissibility of the Procare report, there was no objection to any of the evidence referred to above. There was no application to adduce further evidence.

SUBMISSIONS

The submissions of the parties are recorded, and I do not propose to reiterate each submission in the circumstances of this case.
Ms Goodman took the Commission to the applicant’s written evidence addressing his orthopaedic injury and the evidence of the respondent’s witnesses, Joel Duncan, and Gavin Gilmore. These witnesses conceded that aspects of the applicant’s work were arduous. They both recalled that the applicant occasionally complained of a stiff back and that he used an inflammatory medication on the job.
Ms Goodman submitted that Mr Gilmore’s statement also corroborated the applicant’s evidence that the Mitsubishi flat-bed truck that he regularly drove in the course of his employment had faulty suspension requiring the replacement of the seating in the cabin. Before the installation of the new suspension the driver experienced “a rough ride”.
Mr Hanrahan, on the other hand, submitted that the applicant had continued to work without loss of time, performing moderately arduous physical work until he sought medical attention, and was certified unfit by reason of psychological condition, on 9 August 2018. This fact was inconsistent with the occurrence of a back injury.
Both counsel addressed on the issue of the nature of the applicant’s incapacity. Ms Goodman argued that in the absence of the employer or the applicant’s treating doctors identifying a specific job that he was able to perform, he should be treated as totally incapacitated. The applicant’s general practitioner, Dr Oliver, expressed the opinion that there should be a functional assessment by an occupational therapist of employment which was proposed for the applicant. In the absence of such an assessment, Ms Goodman argued that the applicant should be treated as having no current capacity throughout the first and second entitlement periods.
Mr Hanrahan submitted that the applicant’s continuation of employment until the supervening psychiatric injury was inconsistent with a total incapacity for work. He relied upon the opinion of Dr Chris Walls, an occupational physician, to submit that the applicant was fit for full-time work.
It will be necessary to return to arguments of counsel when resolving the issues in dispute. First, it is necessary to set out the evidence of the applicant in respect of his orthopaedic injury, the evidence of the respondent’s lay witnesses and the contemporaneous medical evidence. What follows is not intended to be a comprehensive survey of the evidence. Rather, I have set out the salient evidence in respect of the issues in dispute so that the submissions of the parties and the way in which the Commission has resolved their dispute can be understood.

APPLICANT’S EVIDENCE

By a written statement of 16 March 2020, the applicant says that he commenced employment with the respondent on 9 November 2016. He states that the work that he did was heavy, and he developed muscle soreness for which he took an inflammatory medication. He describes his work as follows:
“I am frequently required to participate in infrastructure projects such as installing safety traffic barriers, using drills, jackhammers and rock hammers, digging up pins and asphalt, decommission barriers and guards and operating a forklift. One of my regular jobs was to try and pull out drills that had become stuck in the asphalt. Myself and a colleague would take a handle each and try to manoeuvre the drill to loosen it and then pull it out.”
The applicant says that the truck he drove in 2018 had no suspension. He complained to the respondent’s mechanic about the state of the truck seat. He says that he spent some part of everyday driving that vehicle. While doing so he experienced pain in the left-hand side of his back. He continues:
“I would get this sharp pain on my left hand side of my lower back and, for the first time, I started to develop some pain down my left leg. It was just like cramp at first so I didn’t think much of it. But it continued to get worse.”
The applicant says that he also made specific complaints about having to operate the stiff clutch of the Mitsubishi truck with his left leg, and incidents where the “truck seat bottomed out” because of the poor suspension. In May 2018, when the seating was replaced, the applicant says he was experiencing “almost constant pain in the lower back”.
The applicant says that he did not see his local medical practitioner, or Dr Joshi, a colorectal surgeon, as he assumed that the pain in his low back related to pre-existing kidney or bladder problems. He says that when he was trying to operate machinery, he would experience excruciating pain in the back and down his leg.
The applicant recounts that when he ceased work on 8 August 2018 due to his psychological problems he was:
“still experiencing ongoing problems with my lower back but my psychological injuries became the cause of my incapacity at that point.”
The applicant recounts that, during his employment, he experienced ongoing urinary tract problems in addition to constant back pain. He expresses the belief that his bladder problems related to urinary retention while at work.
The applicant recounts that he underwent treatment for his urological problems in February and March 2019. During that treatment the applicant recognised that he had a distinct back problem unrelated to kidney pain. He was referred to Professor Eftekhar, a spinal surgeon, who referred him for an MRI scan of the lumbar spine and recommended that he be treated with a cortisone injection. He says that he has not been able to afford this treatment.
The applicant says that he has ongoing low back pain which interferes with his ability to work and carry out domestic and recreational activities including riding a bike.

KEVIN COLEBORN

Kevin Coleborn is the manager of the respondent’s Coffs Harbour branch and was the applicant’s supervisor. While he did not work on site, his evidence is not inconsistent with the applicant’s evidence as to the nature of his work.
Mr Coleborn states that a week or two after the applicant informed him that the seat of his truck was uncomfortable, he arranged for it to be upgraded “to a more cushioned/comfortable seat”. He states that “there were no reports of being injured or sore as a result of sitting on the seat”.
Mr Coleborn further states that the applicant did not complain to him of low back pain from depressing the clutch of the Mitsubishi truck. He says that the applicant never reported experiencing pain to him. He continues:
“At no stage has Wolf complained to me of lower back pain. He said he was tired from some of the jobs he worked on, however he had not complained of any pain. Complaining of being in pain, whether it be his back or anywhere else would cause me to enquire into his pain, how it occurred, the type of work he was completing and to ensure he received treatment and for the matter to be properly reported and recorded.”
Mr Coleborn states that he has spoken to his area manager, David Bradley who told him that he did not receive any notice of a back injury or any other physical injury from the applicant prior to the cessation of his employment. He says:
“I cannot understand any reason why Wolf would not report an injury or incident resulting in pain or injury to his back. He has receiving [sic] training in respect of injury management. I have personally shown him the procedures to follow after he injured his hand. This is the only injury Wolf has reported.”

JOEL DUNCAN

Mr Duncan is the operations supervisor for the respondent’s Coffs Harbour depot. He says that the applicant was employed as a yardman, but he was also employed in traffic safety barrier installations. Installation of barriers required the use of rock drills to penetrate the rock or road base. The applicant would also operate a Hilti drill, which required some force to penetrate the ground. Mr Coleborn says that he had observed the applicant taking anti-inflammatory medication while working. He continues:
“Using the drills for example, causes your upper body to be sore or it may cause lower back pain and soreness. Anti-inflammatory medication would alleviate the discomfort.”
The witness states that the applicant never complained to him of suffering an injury at work. He did complain of being “tired and fatigued from time to time with the work we were doing.”
Mr Duncan confirms that there were several occasions when the applicant may have worked by himself installing crash cushions in the Yamba area. He states that it was rare for there to be a one-man job. In this instance it may have been because BND, the contractor, failed to provide workers to assist him.
Mr Duncan also confirmed there was “an issue with the seat of a second-hand truck”. He says it was “just a basic seat and it did cause a bit of a bumpy ride”. He recalls the applicant saying to him that the seat was uncomfortable and caused back pain. That seat was replaced with “an after-market seat” which provided better cushioning and lumbar support.

GAVIN GILMORE

Mr Gilmore is a mechanic for the respondent’s Coffs Harbour branch. In addition to his duties as a mechanic he also worked as crew with the traffic safety barrier installations teams. He says he worked with the applicant from time to time. He describes the work they performed as follows:
“The work was not hard all the time. There were jobs which were straightforward. As I say, there were times when you did a lot of sitting around waiting for traffic control to set up. When the job started it was hard work.”
Mr Gilmore recalls that his back “would be stiff and sore from using the rock drills”. He also says the applicant complained of back pain from carrying out this work from driving the Mitsubishi Isuzu truck which “had no suspension”. Mr Gilmore also recalls the applicant describing occasions when the truck bottomed out jarring his back. He replaced the seat of the Mitsubishi truck. He described it as being “worn out”. He does not recall there being any other problems with the truck.

CLINICAL NOTES OF DR RICHARD SCRAGG

The applicant appears to have first consulted with Dr Scragg on 3 November 2016, at about the time he first performed work for the respondent. On 8 August 2018, the applicant complained to Dr Scragg of “health and safety issues at work”. He was found to be suffering from depression and anxiety “secondary to work issues” and was certified as unfit for work and referred to a psychologist.
The applicant saw Dr Scragg in respect of depression on 22 August 2018, 18 September 2018, 17 October 2018, 4 November 2018, 19 November 2018, 21 November 2018, 27 November 2018, and 17 December 2018. He was certified as unfit to work
On 11 January 2019, Dr Scragg recorded that the applicant’s condition had improved, but he was still depressed and anxious.
On 30 January 2019, the applicant reported that he had seen Dr Joshi who had recommended a transurethral resection of the prostate. The doctor also recorded that the applicant:
“saw GP at Northside re back pain which started at work, wants to claim under WorkCover, has had a CT scan.”
On 5 February 2020, Dr Scragg recorded that the applicant:
“developed low back pain left side radiating down left leg at times, started in February 2018 after truck bottomed out and using a jackhammer rock drill and hilti impact drill at work”
The applicant stated that he wished to make a workers compensation claim in respect of his back. Dr Scragg provisionally diagnosed an L4/5 lesion with nerve root compression and certified that the applicant was also unfit for work by reason of his back.
On 4 March 2019, Dr Scragg diagnosed a lumbosacral disc prolapse. He noted that the applicant had pain radiating down the left leg. He certified the applicant as unfit for work for one month.
Thereafter the applicant made consistent complaints of low back and left leg pain to Dr Scragg dispersed among more frequent complaints of anxiety and depression.

NOTES OF THE NORTHSIDE HEALTH MEDICAL CENTRE

Concurrently with his treatment by Dr Scragg, the applicant saw medical practitioners at the Northside Health Practice, probably from 1 October 2017. Dr Platt of that practice treated the applicant for his urological problems and referred him to Dr Joshi, who eventually carried out surgery in 2019. The applicant initially saw Dr Joshi on 14 November 2018, although there is no reference to low back pain in that report.

Unfortunately, the precise dates on which the applicant attended on the Northside Health Medical Practise are not evident from my electronic document. It is clear, however, that the applicant underwent a CT scan of his lumbar spine on referral from Dr Balais on 16 January 2019. At the consultation at which the applicant was referred for a CAT scan, Dr Balais recorded the following:
“lower back pain for a year
worse with movement
no radiation
no numbness, no pins and needles
unable to do much any light work like vacuuming”
The doctor noted the normal power, reflexes and sensory loss but a limited range of movement. The doctor diagnosed chronic low back pain, prescribed anti-inflammatories and queried whether there was a disc prolapse causing compression of the lower lumbar nerve roots.

DISCUSION AND FINDINGS

Injury

There is no doubt that the applicant performed very heavy work from time to time throughout his employment with the respondent interspersed with periods of moderate physical activity. His evidence in that respect is corroborated by the respondent’s witnesses Joel Duncan, Gavin Gilmore and Peter Danjancuk. Each of these witnesses provided statements to the respondent’s factual investigator, although for reasons of economy I have not recited the contents of Mr Danjancuk’s evidence.
While Mr Coleborn states that the applicant did not report an “injury” to him or complain of being in pain at work, he does concede that he complained of “being tired or feeling fatigued”. Mr Gilmore recalls that the applicant complained to him of jarring his back in the Mitsubishi flat-bed truck in the period before the replacement of the suspension in the front cabin. During the dozen odd occasions in which he worked with the applicant on site, he also recalls him complaining of “being sore from work and having a stiff back”.
While the evidence establishes that the applicant experienced some back pain and stiffness while at work, it did not result in loss of time, complaint to a medical practitioner or a report of injury to his employer. The applicant’s evidence, which is reasonably consistent with the medical record, is that it was not until late 2018, at a consultation with Dr Joshi, that he became aware that his back pain related to his employment and not to his urological condition.
While this aspect of the applicant’s evidence is chronologically consistent with the medical record, I find it less than convincing. The applicant relates episodes of severe back pain at times while performing heavy physical work for the respondent. If his evidence as to the extent of his back and leg pain while at work is a true account of the development of symptoms, it is difficult to envisage any logical reason why he might attribute it to urological problems.
Notwithstanding my reservations about this aspect of the applicant’s evidence, there is almost unanimous support in the medical evidence for the proposition that the applicant suffered injury to his low back in the course of his employment. In a report dated 29 November 2019, Dr Scragg, the applicant’s general practitioner states that:
“The back condition is a degenerative progressive condition and his employment,
when he was drilling and driving over uneven ground, could have aggravated this condition.”
Dr Bodel, an orthopaedic surgeon, saw the applicant at the request of his solicitors on 16 December 2019. In a report of that date Dr Bodel concludes that the applicant has a disc rupture at L4/5 with left-sided sciatica. He said this:
“I consider that the nature and conditions of his work in general and the difficulty with driving and the bottoming out of the seat are the cause of his injury to the back and left leg. It is outside my level of expertise to comment in regard to the urological abnormalities.”
Importantly, Dr Machart, an orthopaedic surgeon, who saw the applicant at the request of the respondent on 14 September 2020, also supports the conclusion that the applicant suffered injury by way of aggravation of a degenerative disease in the course of his work. He says this:
“The changes are aged-related and degenerative. The narrative if correctly relayed is that aggravation of the pre-existing condition occurred during the course of his work, seat bottoming out, and duties such as using a jackhammer. It is consistent that there was exacerbation of pre-existing multi-level spondylosis. Some symptoms, reported to be different, were present before. I expected diminution of symptoms of aggravation when he stopped working. Contrary was reported, in that symptoms increased in severity as reported under paragraph Current Symptoms now, as opposed to symptoms allowing full-time employment without restrictions at the time when he stopped working for unrelated reasons in August 2018.” Dr Machart recorded a careful history that is reasonably consistent with the applicant’s evidence and the clinical record of the applicant’s treating doctors. On the basis of that history, he concluded that there was some aggravation of the pre-existing multi-level spondylosis and that employment was the main contributing factor to that aggravation. Dr Machart also opines that he was unable to state that the aggravation “has resolved”.
The only discordant note in the medical opinion evidence is that of Dr Chris Walls, an occupational physician, who saw the applicant at the request of the respondent on 25 June 2019. Dr Walls also records a history that is reasonably consistent with the facts that I accept. He expresses the following opinion in relation to injury:
“Wolfgang Stoermer has a Low Back Disorder secondary, as far as one can determine, to multi-level facet joint arthropathy and foraminal stenosis.
Wolfgang does not describe a specific incident nor personal injury by accident that led to the onset of his pain (meaning it is unlikely that there is any additional pathology of an accidental onset). The MRI scan results are not compatible with specific disc injury arising from the truck ’bottoming out ‘and I would conclude that Mr Stoermer’s low back disorder has arisen as a consequence predominantly of chance and of age-related degenerative changes.
These changes (multi-level facet joint arthropathy and foraminal stenosis) will have arisen over many years and represent an amalgam of age, chance, constitutional factors and perhaps occupational factors”.
It is evident from the above quote that while the doctor is of the opinion that the applicant suffers from age-related degenerative changes, he does not exclude occupational factors as causative of that condition.
Obviously, the absence of medical treatment of the applicant’s back during the period of his employment with the respondent detracts from his case on injury. In my opinion, there are also difficulties with Dr Bodel’s report. They relate to the history he obtained, his diagnosis, and his opinion of the applicant’s capacity.
Dr Bodel compresses the history of the onset of the applicant’s back pain and the commencement of treatment so that it is not evident from his report that he understands that the applicant continued to work in his usual occupation until he ceased work on 8 August 2018 by reason of his psychological condition. Equally, it is not clear that Dr Bodel understands that the applicant did not seek treatment in respect of his back for, at least, three months, and probably longer, after leaving his employment. I am also reluctant to accept Dr Bodel’s diagnosis and his opinion on incapacity. I will return to these issues when dealing with incapacity and entitlement to compensation.
While Dr Bodel’s opinion may be unsatisfactory the balance of the medical evidence is consistent with the occurrence of injury by way of aggravation of pre-existing degenerative changes in the applicant’s low back. In particular, the opinion of Dr Machart, which I accept, is consistent with that conclusion. In the circumstances, I propose to find that the applicant suffered injury to his low back by way of aggravation of a pre-existing degenerative condition on or before 8 August 2018.
At the arbitration hearing, we the respondent did not submit on main contributing factor. Probably, it was not open to it to make a submission adverse to the applicant on that issue as Dr Machart opined that employment was the main contributing factor to the aggravation of the applicant’s spondylosis. Accordingly, I find that the employment was the main contributing factor to the aggravation of the applicant’s lumbar spine disease.

INCAPACITY

There is a substantial body of medical evidence which suggests that the applicant has had no current earning capacity by reason of his back injury since 8 August 2018. Dr Scragg, in his report of 29 November 2019, expressed the opinion that the applicant was totally incapacitated for work by reason of his back and leg pain. In a report of 21 August 2020, Dr Oliver, another general practitioner who has treated the applicant recently, said this:
“His lower back pains remain as they have over the last year – daily sciatica with lower back aches. I suspect as they have been present so long, they will never go, unless he is able to motivate himself to exercise and lose weight.”
Dr Oliver expressed the opinion that the applicant could not work as a security guard or yard person. He was pessimistic about the applicant’s prognosis. He thought it would be very unlikely that he would ever return to work in his previous role. He noted that the applicant had not undergone a functional assessment but “suspected” he would be able to drive a heavy vehicle with appropriate modifications.
By his report of 16 December 2019, Dr Bodel recorded the following in relation to incapacity:
“This gentleman indicates to me that he is off work at the moment. He hopes to return to work after he has had further treatment. He is therefore totally unfit for work at the present time.”
While Dr Bodel records that he found signs and symptoms of nerve root compression consistent with left radiculopathy on examination, his findings are distinctly different to those of Dr Eftekhar, the neurosurgeon who saw the applicant at the request of his general practitioner on 12 April 2019. Dr Eftekhar said this:
“On examination, I could not reveal any objective motor deficits or upper motor neuron signs. Movement of the back and rotation of the hip is painful and restricted. The left sacroiliac joint was tender to touch.
I reviewed the images that you kindly arranged. I believe that degenerative changes and facet arthropathy have contributed significantly to the pain.”
Dr Eftekhar suggested conservative treatment including the importance “of spinal care and proper exercise”.
Dr Walls saw the applicant at about the same time and reported that sensation was preserved in both the upper and lower limbs. He noted there was no deficit to fine touch in either the L4/5 or L5/1 distribution. He recorded that reflexes in the lower limbs were normal and “plantar reflexes are down going”. Dr Walls said this of his findings on examination:
“The findings are of some reduction of the lower back movement but no other significant findings to suggest any particular spinal pathology”.
To the extent that it is inconsistent with the findings and opinions of Dr Eftekhar, Dr Walls and Dr Machart, I reject the evidence Dr Bodel. I do not accept that the applicant suffered a disc rupture when his seat bottomed out or any other time during the course of his employment with the respondent. The absence of complaint, particularly to a medical practitioner, and of evidence of even transient loss of time from work also suggests that such scenario is implausible.
Certainly, the evidence of these doctors cast considerable doubt on the aetiology of the applicant’s leg symptoms. Dr Eftekar referred to the applicant’s hip movement being painful and restricted, although it is not entirely clear that he was referring to the left hip. It is clear, however, that he does not diagnose radiculopathy.
I note that the excerpt from Dr Balais’ note, which I have set out above, records that there was no radiation of the applicant’s back pain to the lower limbs. That note was recorded many months after the applicant left work, which is inconsistent with aspects of the applicant’s evidence and with the occurrence of a lesion causing sciatica or radiculopathy during the course of the applicant’s employment. Obviously, one cannot make too much of a solitary note, but this evidence is also inconsistent with Dr Bodel’s opinion.
On the issue of capacity for work, Dr Walls expressed the opinion that the applicant’s discomfort would reduce significantly with an exercise program and basic medication. He thought that he was fit to work on a full-time basis with restrictions as to heavy lifting, awkward postures, static postures and exposure to vibrations. The doctor recorded a history of the applicant working as both a sales representative and in the “management aspects of Chubb Security for 18 years in Victoria and New South Wales”.
Dr Machart expressed the opinion that the applicant was not fit for physically demanding work. He was fit for “sedentary work, nothing physical, nothing involving repetitive bending or lifting anything heavier than 5kg.” In reaching this conclusion he noted that the applicant had been able to work performing moderately heavy work with the respondent up until 8 August 2018.
That latter fact persuades me that the applicant has been able to perform work. I appreciate that he has a psychological condition and has had treatment for urological disease. The former may interact and magnify the effects of a physical injury, but I am only concerned with his back in these reasons. Logically, it is difficult to envisage how the applicant could perform arduous physical work prior to 9 August 2018 and be totally incapacitated thereafter. While the applicant says that his back condition has deteriorated since he left work, there is no compelling medical evidence to explain this deterioration. Accordingly, I propose to accept the opinion of Dr Walls and Machart of the incapacity issue.
Conversely, I propose to reject the evidence of Dr Bodel and that of applicant’s general practitioner, Dr Scragg. As foreshadowed above, I do not find Dr Bodel’s opinion on incapacity persuasive. He records that the applicant hopes to return to work after treatment and concludes that he was, therefore, totally incapacitated at the time of his consultation. It is difficult to understand why the fact that the applicant intended to return to work after treatment rendered him totally incapacitated at the time of the consultation. I may be over analysing the language used by the doctor in his report. Nonetheless, in my opinion the evidence of Dr Walls and Dr Machart on this issue is more persuasive.
Obviously, the medical evidence taken as a whole leads to the conclusion that the applicant is unfit for his pre-injury duties which on any view of the matter was often extremely physical. I do not accept, however, the medical evidence or those aspects of the applicant’s evidence which suggest that he is totally incapacitated.
Dr Walls, the occupational physician, recorded a history that the applicant had lengthy experience in sales and in management in the security industry. This evidence was not challenged at the arbitration hearing. It follows, in my opinion, that the applicant should be able to work in retail, in some areas of administration, in light process work and as a courier of small parcels.
I appreciate that these jobs may not be readily available at Coffs Harbour, which has a notoriously high level of unemployment. I also appreciate the applicant’s age may magnify his difficulties in obtaining work. Nonetheless, I am persuaded that there are real jobs that the applicant can perform. In Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (2 September 2014), Roche DP said this at [54]:
“54. In light of the 2012 amendments, care must be exercised in relying on Lawarra Nominees and Woods. Under those authorities, the task of assessing whether a worker was wholly or partially incapacitated was a “practical exercise” that “involve[d] the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which [the worker] is to be engaged” (Mahoney P at [30] in Lawarra Nominees).
55.   This approach was consistent with the High Court’s decision in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171, where Mason, Wilson, Deane and Dawson JJ said (at 178) that “the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work” (emphasis added).
56.   It is the emphasised words in the two preceding paragraphs that have effectively been eliminated by the directions in s 32A that employment for which the worker is currently suited is determined “regardless of” whether the work or employment is “available” and regardless of whether it is “of a type or nature that is generally available in the employment market”. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is “suited” for suitable employment.
57.   There is nothing in the context of the definition of suitable employment to suggest that “available” should be given anything other than its relevant dictionary meaning. The third meaning attributed to “available” in the Shorter Oxford English Dictionary (Oxford University Press, 6^th ed, 2007) is “[a]ble to be used or turned to account; at one’s disposal; within one’s reach, obtainable”. Thus, just because the suitable employment the worker is able to perform is not “available” in the labour market in which the employee was working or might reasonably be expected to work does not justify a finding that the worker has no current work capacity.

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

59.   The word “employment” is not defined in the legislation. Its common meaning is “the state of being employed”. However, “worker” is defined. It means, subject to specified exclusions, “a person who has entered into or works under a contract of service or a training contract with an employer” (s 4 of the 1998 Act). In context, the phrase “employment in work”, in the definition of suitable employment, “in relation to a worker”, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.

60.   Therefore, the determination of whether a worker is “able to return to work in suitable employment” is not a totally theoretical or academic exercise and Mason P’s reference to the “eye of the needle” test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
Ms Goodman argued that the applicant’s general practitioner’s reluctance to certify him as able to perform suitable work in the absence of an occupational assessment ought to lead to a finding that the applicant had no current capacity during the first and second entitlement periods. While a functional assessment may be useful to identify areas within the broad categories of work which I have enumerated above which are more or less suitable for the applicant. But a functional assessment is not a pre-requisite for a finding that the worker has a current earing capacity. The Commission is entitled to reach such a view on all the evidence in the case taken into account its background knowledge of the labour market.

While the evidence of a treating general practitioner is always important evidence on all issues in a workers compensation claim, I prefer the evidence of the specialist medical practitioners to Dr Scragg, as Dr Walls and Dr Machart have reasonably accurate histories and their findings on clinical examination must trump those of a general practitioner.
In this case the evidence Dr Walls, which I accept, is indicative of the applicant having a current capacity for work and a vocational history which would qualify him for sedentary and semi-sedentary work, and for driving a small vehicle. I appreciate that in view of his age and lack of recent experience in these types of jobs he would only attract a wage near the bottom of the range of wages available in these jobs. By reference to the minimum wage, which was $753.80 per week in the latter part of the period claimed, I propose to find that the applicant would earn $20 per hour on 8 August 2018 to 31 December 2019 and $21 per hour thereafter.
Accordingly, I find that:
(a)    The applicant suffered injury to his low back arising out of and in the course of his employment on and prior to 8 August 2018 namely the aggravation of pre-existing degenerative changes.
(b)    The applicant’s employment was the main contributing factor to aggravation of the applicant’s pre-existing degenerative changes.
(c) The notional date of injury for the purposes of section 16 of the 1987 Act is 9 August 2018 the first date of incapacity.
(d)    As a result of the injury the applicant has been unable to perform arduous work involving lifting, bending, operating vibrating machinery, and driving heavy vehicles.
(e)    It is agreed that the applicant’s PIAWE was $1,500 per week at all material times.
(f)    In some suitable employment as that term is defined by section 32A of the 1987 Act the applicant has been able to earn $760 per week from 9 August 2018 to 31 December 2019 and $798 from 1 January 2020.
(g)    Award for the applicant pursuant to sections 36 and 37 of the 1987 Act as follows:
·$665 per week from 9 August 2018 to 8 November 2018; , and
·$402 per week from 9 November 2018 from 9 November 2018 to 4 February 2021.
(h)    Liberty to the parties to apply in relation to the above calculations.
(i)    Respondent to pay the applicant’s medical and hospital expenses pursuant to section 60 in respect injury to the applicant’s back.

Paul Sweeney
MEMBER

16 March 2021