Styles v ISS Property Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Styles v ISS Property Services Pty Ltd [2023] NSWPIC 690
APPLICANT:	Ricky Dean Styles
RESPONDENT:	ISS Property Services Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	22 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60 for L1-2 decompression and interbody fusion surgery and weekly compensation pursuant to section 38; accepted injury to the lumbar spine but the nature of the injury disputed; radiological reports revealed minimal pathology; whether no current work capacity; Held – the surgery proposed is reasonably necessary as a result of injury; the applicant has had no current work capacity as a result of the injury; awards in favour of the applicant.
DETERMINATIONS MADE:	The Commission determines: 1. The L1-2 decompression and interbody fusion and bone graft surgery proposed by A/Prof Timothy Steel is reasonably necessary as a result of the injury to the applicant’s lumbar spine on 15 November 2016. 2. The applicant has had no current work capacity as a result of the injury on 15 November 2016 during the period from 22 September 2019 to 9 November 2021. The Commission orders: 3. The respondent to pay the costs of and incidental to the L1-2 decompression and interbody fusion and bone graft surgery in accordance with s 60 of the Workers Compensation Act 1987. 4. The respondent to pay the applicant weekly compensation at the rate prescribed by s 38(6) of the Workers Compensation Act 1987 based on the agreed pre-injury average weekly earnings rate, as periodically indexed, from 22 September 2019 to 9 November 2021.

STATEMENT OF REASONS

BACKGROUND

Mr Ricky Dean Styles (the applicant) was employed as a cleaner by ISS Property Services Pty Ltd (the respondent).
On 15 November 2016, the applicant was in the course of his employment with the respondent when he sustained an injury when a heavy bin he was pushing got caught in a broken piece of concrete and tipped over.
In a Certificate of Determination issued by the former Workers Compensation Commission on 18 June 2019, an award was given for the applicant in respect of his claim of an injury to his lumbar spine in that event, as well as an injury to his left knee. An award was given in favour of the respondent in respect of a claim of injury to the applicant’s cervical spine. It was determined that the applicant had no current work capacity and the respondent was ordered to pay the applicant’s reasonably necessary s 60 expenses for the left knee and lumbar spine.
On 3 March 2022, A/Prof Timothy Steel recommended the applicant undergo a L1-2 decompression and interbody fusion and bone graft.
On 23 March 2022, the respondent served a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing the nature and extent of the injury to the applicant’s lumbar spine and that the proposed surgery was reasonably necessary as a result of the injury sustained on 15 November 2016. That decision was maintained following internal review on 6 July 2022.
On 10 July 2023, the applicant made a claim for past weekly payments pursuant to s 38 of the Workers Compensation Act 1987 (the 1987 Act). The applicant sought further review of the decision to dispute liability in respect of the surgery proposed by A/Prof Steel.
The decision disputing liability in respect of the surgery was again maintained in a notice issued on 26 July 2023. In a separate notice of the same date, the insurer declined to pay weekly compensation as sought on the ground that the applicant had current work capacity, had not returned to work for not less than 15 hours per week and did not satisfy the criteria under s 38 of the 1987 Act.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission (Commission) on 28 July 2023. The applicant seeks compensation pursuant to s 60 of the 1987 Act for the costs of and incidental to the surgery proposed by A/Prof Steel and weekly compensation pursuant to s 38 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 9 November 2023. The applicant was represented by Mr Paul Stockley of counsel, instructed by Ms Berzins. The respondent was represented by Mr David Saul of counsel, instructed by Ms Gibson.
It was agreed during conciliation that the applicant’s pre-injury average weekly earnings (PIAWE) rate was $872.56 and that the applicant had received 130 weeks of weekly benefits. The 260-week period would have ended on 9 November 2021.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    the nature of the injury to the applicant’s lumbar spine on 15 November 2016;
(b)    whether the surgery proposed by A/Prof Steel is reasonably necessary as a result of the injury on 15 November 2016;
(c)    the extent and quantification of incapacity resulting from injury during the period from 22 September 2019 to date and continuing, and
(d) the entitlement to weekly compensation pursuant to s 38(2) and (3A) of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 5 October 2023.
The respondent did not press for the admission of a documents attached to an Application to Admit Late Documents lodged on 7 December 2023, as the applicant had withdrawn any reliance upon a secondary psychological condition.
The applicant elected to rely on the expert reports of Dr Endrey-Walder over the reports of
Dr Patrick attached to the Application to Resolve a Dispute, pursuant to cl 44 of the Workers Compensation Regulation 2016.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by him on 19 December 2016, 13 November 2017, 30 July 2018, 30 May 2023 and 31 August 2023.
In his first statement, the applicant gave evidence that he was educated to Year 11 and left school in 1988. The applicant’s prior work history included work as a cleaner for several employers. Previously, the applicant had worked as a storeman and sales representative for EzyKleen for 15 years.
The applicant described the injury on 15 November 2016 and said he was pushing a large bin estimated to weigh approximately 140 kg. The front wheels appeared to get stuck in a broken piece of concrete, causing the cart to stop suddenly on a slightly downhill slope. The cart fell forward causing the applicant to become unbalanced and fall onto the cart and then the concrete ground. The applicant described pain in his left hip and leg.
The applicant was prescribed medication and referred for physiotherapy. A CT scan was performed on 12 December 2016. The applicant said his pain was being relieved by the medication but his sleep was disturbed.
In his second statement, the applicant provided further detail around the incident on
15 November 2016. The applicant said he had undergone an MRI of his lumbar spine on
6 February 2017. The applicant expressed the belief that he was unable to do his usual job due to back and leg pain.
In his third statement, the applicant said that he had been certified by his general practitioner as having no work capacity. This was modified in 2017 to enable him to work four hours per day, three days per week on alternative days doing modified office duties. The applicant’s employment was subsequently terminated on 4 October 2017 and his claim for compensation denied.
The applicant said he had been prescribed Valium and Palexia, which provided temporary relief. The applicant’s low back pain interfered with all aspects of his day-to-day life. The applicant suffered sleep disturbance due to pain. The applicant had been using a TENS machine as recommended by a physiotherapist.
The applicant expressed the view that he could not perform his heavy, repetitive cleaning work and had no training or qualifications for other types of work. The applicant had not worked as a cleaner or in any other capacity since the accident.
In his fourth statement, the applicant said he had developed a secondary psychological condition as a result of his injury.
The applicant said liability to pay weekly compensation had been disputed in a work capacity decision dated 16 May 2023 on the basis that he could work on a part-time basis as a ticket seller, ticket collector/usher or alarm, security or surveillance monitor. The applicant said he was certified as totally unfit for employment by his general practitioner and did not consider himself capable of doing those jobs.
The applicant said his condition had not improved since the Workers Compensation Commission proceedings and had in fact worsened over the years.
The applicant said he remained troubled by left knee pain and was under the care of orthopaedic surgeon, Dr Kilby. Dr Kilby had indicated that the applicant would require a total knee replacement in the future but should get his weight under control first to have the best chance at success.
The applicant said his weight had increased due to immobility resulting from his injuries. Prior to the injury, the applicant had no trouble working, playing cricket and golfing. The applicant was pretty active and was now very inactive, spending most of his time indoors at home. The applicant required the use of a walking stick and was limited in how far he could walk. The applicant had to be mindful of walking over uneven surfaces. Stairs were difficult and the applicant tried to avoid them as much as possible.
The applicant said he had been referred to a dietician and weight loss surgeon but was yet to see those practitioners as he could not afford it.
The applicant said he had come under the care of A/Prof Steel for his lower back. The applicant underwent updated scans towards the end of 2022 as he continued to experience ongoing back pain, particularly in his lower spine.
A/Prof Steel had said that the applicant might be a candidate for an L1/2 interbody fusion but should trial a treatment program involving prescription Mobic and prednisone. If the program did not control the applicant’s pain, it was the last conservative treatment option and A/Prof Steel would proceed with surgery.
The applicant said he could not walk even short distances without being affected by pain. His walking pace was very slow and he had to concentrate to ensure he did not misstep and fall. Sitting was difficult and the applicant had to alternate his posture between sitting and standing. The applicant no longer drove and could not kneel or squat or lift heavy weights. The applicant was assisted by his wife with his personal care.
The applicant said he had been prescribed antidepressants but could not afford to see a psychologist.
The applicant continued to use a TENS machine to try to manage his pain. The applicant was constantly fatigued due to sleep disturbance and was sleeping in a recliner chair in the lounge room. The applicant said that being around crowds of people made him nervous as he was concerned someone would bump into him.
The applicant addressed the three roles identified in the Work Capacity Decision in more detail, explaining why they were unsuitable.
In his final statement, the applicant said that he had trialled the pain medication prescribed by A/Prof Steel to see if it would manage his pain symptoms. The applicant had since stopped the medication as it was doing very little to alleviate his pain. The applicant was now simply waiting for the spinal surgery to take place with A/Prof Steel. The applicant stated:
“Last time I saw Dr Steel he told me if the pain medication did not improve my pain, then I would need to have the spinal fusion surgery to get any type of improvement in my pain.
I understand having the spinal fusion surgery is a personal decision, and as long as I can tolerate and put up with the pain, I can hold off on having the surgery. But I cannot do this anymore. I am in constant pain. I cannot do things myself, and it impacts my day-to-day life. I am very limited by my back pain, and I just want to have the surgery. I have given this decision very careful thought and consideration, but I cannot go on like this. Pain medication doesn’t help, and Dr Steel cannot offer me any other solution. I want to go ahead with the surgery so I can get my life back on track.
I haven’t been able to see Professor Steel since September 2022 as I cannot afford to see him again. The insurer will not pay for any of my medical expenses, and have not done so for quite some time. More so, I know there is no point seeing him again unless I am going to have the surgery as I know there is nothing more he can do for me as that is what he told in during the last consultation.
Since my payments stopped in about September 2019, I haven’t been able to afford to see my doctors on a regular basis.”

Radiological evidence

A CT scan of the lumbosacral spine performed on 14 December 2016 was reported to show:
“Early spondylotic change. Multilevel mild disc bulging but no significant disc lesion seen. No nerve root compression.”
The applicant was referred for an MRI of the lumbar spine in respect of “persistent L5 sciatica”. The report of the MRI, which was performed on 6 February 2017, found:
“There is no focal disc protrusion, nerve root compression or canal stenosis. In particular, there is no left L5 nerve root compression detected.”
A bone scan performed on 1 May 2017 showed no significant focal uptake in the lumbar spine.
A further MRI performed on 15 August 2019, was reported to show:
“No new focal disc protrusion causing nerve root compression or lateral canal stenosis detected. Romanus signs at the anterior corners of the L1 and L2 vertebral bodies could indicate underlying axial spondyloarthritis.”
The report of an MRI performed on 18 August 2022 found:
“L1/2 level: There a type II Modic endplate changes in relation to L1-2 intervertebral disc. There is disc desiccation and an anterior disc protrusion noted. No evidence of posterior disc protrusion, canal or foraminal stenosis. No nerve root impingement is seen.”
A bone scan performed on the same day was noted to reveal:
“…very low-grade uptake at the endplates adjacent to the L1-2 disc space anteriorly, consistent with early degenerative disease.”

Associate Professor Steel

Consultant neurosurgeon and spine surgeon, A/Prof Timothy Steel, prepared a report for the applicant’s general practitioner on 4 November 2021. A/Prof Steel took a history of the injury and noted:
“He has had mechanical lumbar pain since this time which has steadily progressed. He does not report significant sciatic pain or sensory loss to indicate significant nerve compression. He does however, have paraesthesia in the bottom of his feet and buttocks. He is no longer able to work and rates the pain a 7 on a VAS. He is taking Panadol, Nurofen, was taking Palexia and Valium but found this ineffective and he had been taking it for a long time. He has been frustrated by his ongoing pain.”
A/Prof Steel noted that the applicant last had imaging studies on 15 August 2019 which showed significant disc degeneration at L1/2. This was said to have progressed significantly since the MRI of February 2017 where the anterior portion of the disc had herniated but there were significantly less modic endplate changes. The rest of the spine was essentially normal.
A/Prof Steel noted that the applicant had seen multiple specialists, tried physiotherapy and exercise. The applicant still reported significant pain.
A/Prof Steel recommended a fusion of the L1/2 interspace performed posteriorly. Further imaging studies and a trial of meloxicam were also recommended.
On 3 March 2022, A/Prof Steel prepared a quote for the surgery.
In a report dated 22 September 2022, A/Prof Steel noted that imaging performed on
18 August 2022 showed,
“Progress imaging was performed at PRP Bathurst on 18 August 2022. At the L1-2 level there is significant disc degeneration with mild modic endplate changes. These are seen best on the coronal STIR images. He has congenital canal stenosis throughout the lumbar spine, but there is no high grade nerve compression that would mandate surgery at this point.”
A bone scan performed on the same date showed low-grade uptake in the endplates of the L1/2 disc. A/Prof Steel provided recommendation as follows:
“● It is most likely his low back pain is arising from the L1-2 segment. When patients have oedema in the bone in the end plates of the bone around a degenerate disc, it is usually symptomatic and his spine below the L1-2 disc looks essentially normal.
● Continue with Meloxicam 15mg tablets.
● Trial pulse Prednisone 25mg tablets, one tablet in the morning for three days, repeat at weekly intervals for four to six weeks.
● Cortisone injections tend to be ineffective for disc degeneration, as it is impossible to inject into the disc or the bone endplates themselves. Oral corticosteroids tend to be more effective.
● I would like him to try this for six weeks and I will review progress after this.
● The surgical recommendation remains an L1-2 fusion”
In a report to the applicant’s solicitor dated 28 September 2022, A/Prof Steel noted a history that included the following:
“He does not report significant sciatic pain or sensory loss to indicate significant nerve compression but he does describe significant mechanical lumbar spine pain severe enough that he is no longer able to work and he needs assistance with dressing himself and washing below the knees.”
A/Prof Steel noted that, prior to the work injury in 2016, the applicant had no pain and was preparing to represent New South Wales in a cricket tournament. With the incident, the applicant had an immediate onset of mechanical lower back pain that had “relentlessly progressed since that time”.
A/Prof Steel further explained,
“Unfortunately, the natural history of modic endplate changes around a degenerative disc is that they will continue to progress with time, i.e. pain will continue to worsen. An L1-2 decompression fusion will prevent further movement at that level and has an 80% chance of significantly improving the pain. As he is reasonably young with a disc that has not lost a large amount of height, he would also benefit from interbody cages placed at the time of surgery. In the short term, Rickey will continue taking Mobic and we will also try pulse Prednisone 25mg once a day for three days, followed by five days without Prednisone. We will repeat this at weekly intervals for six weeks and I will review him again at the end of this time period. If the medication keeps his pain levels under control, we can postpone the L1-2 fusion for now, however, it is likely that he will benefit from this operation in the near to medium future.
…
Surgery is the only option that will permanently relieve this pain by taking away movement around the degenerative disc segment. There is no medical urgency to performing this surgery, however, unless we can modify Rickey’s pain by other means such as NSAIDs (Mobic) or pulse Prednisone, Rickey will remain in pain. There are unfortunately no other alternative treatments such as physiotherapy, other medication that are likely to give him sustained relief.
Surgery will have an 80% chance of making Rickey significantly better. Without surgery, Rickey’s symptoms are likely to relentlessly progress.”

Responding to the report of the respondent’s Independent Medical Examiner, A/Prof Miniter, A/Prof Steel noted that the applicant gave a description of an injury starting at a specific time and place. The applicant’s imaging findings were consistent with the history given.
Noting comments from A/Prof Miniter regarding the applicant’s weight and general fitness, A/Prof Steel commented:
“Mr Styles' weight has increased since his injury, and it is possible he has gained weight as a result of not being able to work and be physically active. Losing significant weight will be difficult if unable to undertake most forms of exercise. Whilst losing weight may well help with back pain, and prevent further issues, it is unlikely it will reverse the structural pathology already present.”

Dr Endrey-Walder

The applicant relies on medicolegal reports prepared by Dr Peter Endrey-Walder dated
13 March 2018, 8 March 2019 and 3 October 2023.
Dr Endrey-Walder took a history of the injury and noted that a CT scan of the lumbar spine was arranged on 15 December 2016. An MRI scan of the lumbar spine was performed on
7 February 2017 and a bone scan performed on 2 May 2017. The applicant was treated with Palexia and Panadol for pain as well as Valium and Nurofen. The applicant underwent physiotherapy without any significant improvement. The applicant did his own water-based therapy in his pool. The applicant also began using a TENS machine at the recommendation of his physiotherapist.
Dr Endrey-Walder noted that the radiological investigations showed early degenerative change but no disc space narrowing or neural involvement.
Dr Endrey-Walder concluded that the applicant had suffered soft tissue injuries to his back and bruising to his left knee in the accident. Dr Endrey-Walder commented:
“It is important to bear in mind that the force of the sudden catapulting of the heavy LART cart was such as to lift a man of his physique and weight, literally thrown over the cart onto the ground before it landed on him.
He has remained with chronic lower back pain and lesser symptoms at the left knee in the long term, notwithstanding a fairly significant period of time having elapsed, more than 15 months, he had physiotherapy treatment, did his own exercises in his pool.
He is of a certain physique which is difficult to assess with precision, but given my findings on examination today I do accept his ongoing symptoms although, much as Dr. Adams, I am unable to pinpoint the particular pain generator.”
Dr Endrey-Walder’s second report dealt predominantly with the applicant’s knee injury.
In his third report, Dr Endrey-Walder recorded the history of treatment since his previous examination of the applicant. It was noted that A/Prof Steel had recommended an L1/2 lumbar fusion.
The applicant was noted to weigh 138 kg and to walk with a definite limp on the left leg, using a walking stick in his right hand. The applicant changed his posture from sitting to standing several times during the examination. There was no measurable motion at the back.
Dr Endrey-Walder gave the opinion:
“My diagnosis is intervertebral disc injury at the L 1-2 level, trauma induced medial meniscal tear in the left knee.
I do believe that your client's reliance on a walking stick is reasonably necessary, and it is my understanding from him that he uses this stick even within his own home situation, let alone outside the home.
Mr. Styles has been unable to drive a car since the injury of late 2016, which has remained a particular chagrin to him.
I have already expressed my opinion of the Rehablife Report regarding your client's employment capacity. It is not my opinion that this man is fit for any kind of remunerable work even on a light duty and part-time basis
I do believe that the surgery proposed for your client's lumbar back by Professor Steel is on account of the disc damage which occurred at the time of the subject accident, over the years having resulted in Modic changes at that level of the spine.”

A/Prof Miniter

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, A/Prof Paul Miniter dated 28 February 2022.
In the history recorded by him, A/Prof Miniter noted that the applicant was in poor health and had weighed up to 178 kg but was now down to about 120kg in weight. A/Prof Miniter noted the findings of the Workers Compensation Commission but did not accept that the applicant had an ongoing work-related condition.
A/Prof Miniter referred to the radiological investigation reports taken after the injury and noted that they were normal other than a very minor change at the L4/5 level seen on the MRI scan performed on 6 February 2017.
A/Prof Miniter said he was having difficulty understanding the methodology whereby a lumbar fusion had been recommended by A/Prof Steel. The applicant told A/Prof Miniter that he had also been seen by Dr Spittaler who made the same recommendation. A/Prof Miniter noted that A/Prof Steel had referred to an MRI scan performed in August 2019 said to show degenerative disc disease at the L1/2 level. There were no features to suggest nerve root compression.
On physical examination, A/Prof Miniter observed that the applicant was unable to bend his spine more than 10°. Lateral flexion was nil and the applicant was unable to stand on either foot.
A/Prof Miniter was asked to specify the nature of any injury sustained to the lumbar spine on 15 November 2016 and commented:
“Based on the history, my physical examination as best as could be accomplished across the internet and review of documentation does not reveal any injury sustained by this man in relation to the knee or the lumbar spine in November 2016.”
Asked to comment on the applicant’s fitness for work, A/Prof Miniter gave the opinion,
“This man is fit to return to work if he feels he can manage his current levels of discomfort but the reality is that he has not worked for almost six years and that he has poor motivational levels. He seems to be placing all of his hopes on a miracle cure performed by surgical treatment by surgeons. This is highly unlikely.”
In response to a question as to whether the surgery proposed by A/Prof Steel was reasonably necessary medical treatment, A/Prof Miniter responded:
“In my opinion, he does not require decompressive surgery nor fusion. It is foolhardy, in my opinion, to suggest that any type of lumbar spinal surgery will deal with this man’s presentation.”

Dr Keller

The respondent additionally relies upon a medicolegal report prepared by occupational physician, Dr Andrew Keller, dated 13 February 2023.
Dr Keller took a history of the injury that was consistent with the other evidence. The applicant was initially certified as unfit for work for five to six months but intermittently upgraded to part-time light duties between December 2016 and April 2017. By April 2017, the applicant was working four hours a day five days per week. The applicant’s employment was terminated around May 2017. The applicant had been certified as having no current work capacity since that time.
Dr Keller referred to the radiological investigations of the applicant’s lumbar spine and left knee. Dr Keller recorded that the applicant had received no physical or psychological treatment since 2017. The applicant’s symptoms were managed with paracetamol and Nurofen.
The applicant reported constant lower back pain and daily left knee pain. The applicant’s sitting tolerance was 35 to 50 minutes and standing tolerance 30 minutes. The applicant could walk 2 km and had not driven a vehicle since 2016. The applicant required his wife’s assistance with washing and dressing and was unable to do domestic tasks.
Upon physical examination, the applicant demonstrated severe restriction of motion at the thoracolumbar spine. The applicant reported normal sensation in the legs and was able to stand on his heels and toes.
Dr Keller was asked to make a diagnosis and explain whether it was consistent with the history obtained. Dr Keller responded:
“Although it is possible that he suffered soft-tissue injuries and bruising at the time of his fall, no evidence has been provided of lasting musculoskeletal injuries. I have insufficient evidence of injuries caused by the fall to explain his lack of capacity to return to his role without restrictions or any need for ongoing treatments. I take particular note of the bone scan some six months after the fall showing no significant uptake suggesting no ongoing musculoskeletal complaints at this time.”
With regard to the applicant’s fitness for work, Dr Keller gave the opinion:
“Based on his presentation today and reported symptoms, he appears to be totally unfit for work. This would be due to his age, degenerative changes, body habitus and lack of physical activity. It is not clear to me that he suffers any work restrictions relating to the November 2016 incident.”
Dr Keller recorded that the medical file provided to him showed prescription of Duragesic and Valium in 2011 and oxycodone and Duragesic for lower back pain in early 2016. Dr Keller commented:
“From this information it appears that he had significant problems with pain requiring opiate medications at least in the months prior to his injury, but also many years prior to his injury. The full details of this are not clear to me from the medical records provided.”
Dr Keller expressed the view that any soft tissue strains or bruising would have recovered within a few weeks of the fall.

Functional and Vocational Assessment Report

The respondent procured a functional and vocational assessment report from RehabLlife, dated 31 March 2023.
The assessor noted that the applicant led a very inactive and sedentary lifestyle but did engage in activities on a very rare basis requiring prolonged effort including attending rugby league games and travelling to medical appointments.
The assessor formed the view:
“Whilst Mr Styles does indeed live an inactive lifestyle at present, the Functional Assessor is of the opinion that there is indeed an underlying level of functional capacity that may transition into work capacity for part-time hours, as recommended above.
The Functional Assessor is of the opinion that Mr Styles possesses capacity for employment for part-time hours at present, approximated at 15 to 20 hours per week, in work that is sedentary in nature only.
Functional Assessor recommends the following capabilities and limitations in regards to work performance that will minimise symptom exacerbations in the work environment:
▪ Lifting 3 kg.
▪ Carrying 3 kg, one-handed, short distances only.
▪ Walking 30-45 minutes at a time.
▪ Sitting 60-minutes at a time; Ergonomic seating is essential to promote sitting tolerances.
▪ Avoid bending/twisting of spine.
▪ Avoid kneeling, squatting and crouching.
▪ Avoid repetitive stair use
▪ Avoid ladder use.
▪ Nil upper limb limitations.
▪ No driving at present (Assessor notes potential to return to driving via driving assessment and suitable vehicle modifications).”
The functional assessment identified that the applicant possessed part-time capacity (15-20 hours) for work that was sedentary in nature. Three roles were identified as falling within the applicant’s identified vocational profile and available on a part-time basis. These included ticket seller, ticket collector/usher, and alarm, security or surveillance monitor.
Appended to the report was a Labour Market Analysis of the three roles identified as suitable.

Applicant’s submissions

The applicant submitted that the surgery now sought had been seriously contemplated since March 2022.
The report from A/Prof Steel to the applicant’s solicitor dated 17 September 2022 was the last in time and the most comprehensive. A/Prof Steel accepted that the applicant did not have significant sciatic pain or sensory loss to indicate significant nerve compression but did describe significant mechanical lumbar spine pain, severe enough that he was no longer able to work.
The applicant submitted that A/Prof Steel’s opinion was different to the investigations embarked upon by others looking for neurological symptoms. The applicant’s evidence described an immediate onset of mechanical lower back pain which had relentlessly progressed since the time of the injurious event. In these circumstances, and given that the applicant had no pain prior to the incident, A/Prof Steel said it was more likely than not that the work injury caused the applicant’s current symptoms. A/Prof Steel had therefore justified the proposed surgery on the basis of mechanical disc pain rather than any radiculopathy.
The applicant noted that A/Prof Steel had said that the applicant’s symptoms would continue to progress with time. The proposed surgery would prevent further movement and had an 80% chance of significantly improving the applicant’s pain.
The applicant submitted that, in simple language, A/Prof Steel had explained the purpose of the surgery and its prospects of ameliorating his symptoms. In doing so, he had demonstrated the reasonableness of the proposed treatment.
The applicant noted that A/Prof Steel accepted that it was possible that the applicant gained weight as a result of not being able to work. A/Prof Steel said it was unlikely that losing weight would reduce the applicant’s pain and weight loss would be difficult to achieve given the applicant’s current pain.
The applicant submitted that A/Prof Steel had given an opinion that the work injury heralded the onset of pain. The treatment for the applicant’s pain was the surgery proposed. The applicant submitted that this reasoned analysis from his treating specialist would be capable of discharging his onus for the purposes of s 60 of the 1987 Act.
With regard to the claim for weekly compensation, the applicant noted that in his most recent statement he explained why the jobs proposed by the insurer were unsuitable. The applicant was of the view that none of the occupations were suitable in his injured state.
The applicant submitted that the Commission would not accept the opinion of Dr Keller that the effects of injury had dissipated or gone. A/Prof Steel had described a relentless progression of symptoms.
In any event, Dr Keller accepted that, based on the applicant’s presentation and reported symptoms, he was totally unfit for work although he attributed this to age, degenerative changes, body habitus and lack of physical activity.
The applicant commented on the artifice of the vocational assessment report. The vocational assessor apparently spoke to potential employers but at no stage was it suggested that they would find the applicant an actual job. The vocational assessment suggested that the applicant had capacity for work he had never done before despite his current functional limitations.
The applicant had devoted his entire working life to performing cleaning work. The applicant finished school in Year 11 and had no formal qualifications or other relevant experience. The applicant would realistically be limited to performing manual work on the basis of his qualifications and experience.
The applicant noted that the Hoyts crew member job considered involved cleaning for which the applicant was not fit. It was difficult to envisage a man with the applicant’s symptom complex, at the age of 53 and having not performed that type of work previously, performing the roles proposed. The applicant had no experience in customer service roles and relied on a walking stick.
The applicant referred to the report of Dr Endrey-Walder, attached to the Application to Admit Late Documents. Dr Endrey-Walder gave the opinion that the applicant was not fit for any kind of work even on a light duty or part-time basis.
The applicant submitted that A/Prof Miniter’s report was of no relevance as he found there was no injury.

Respondent’s submissions

The respondent submitted that when the question of injury was determined by the Workers Compensation Commission there was no evidence that the injury to the applicant’s lumbar spine was anything other than an acute strain. There was no reference in the medical evidence to the disc at L1/2. The injury has gone from an acute muscle strain to a disc injury. A/Prof Steel had not been involved in the applicant’s care at the time of the determination.
The respondent submitted that A/Prof Steel’s report did not engage with the history of the matter or the progression of symptoms. The applicant’s weight was a feature of his presentation. The applicant had consistently had significant weight issues and this affected the need for surgery.
The respondent submitted that the Commission would not accept that the L1/2 level was in fact injured. There was no contemporaneous evidence of any injury to that level. Dr Endrey-Walder’s opinion was a bare ipse dixit, given without explanation as to why that level would have been injured taking account of the nature of the injury. Dr Endrey-Walder did not explain why he never commented upon the L1/2 level when he saw the applicant in 2018.
The respondent submitted that the applicant must prove an injury affecting the site requiring surgical intervention.
With regard to whether the surgery was reasonably necessary medical treatment, the respondent submitted that A/Prof Steel was not confident that the surgery was currently reasonably necessary. A/Prof Steel suggested that the fusion could be postponed for now if medication kept the applicant’s pain levels under control. A/Prof Steel suggested that the applicant may benefit from the operation in the near to medium future.
The respondent submitted that the Commission could not be satisfied that the surgery was presently reasonably necessary even if it resulted from the injury. There were other factors at play identified in the clinical notes.
A/Prof Miniter was surprised that the applicant had ongoing complaints at the back. A/Prof Miniter analysed the radiological evidence and found there was no evidence of any injury. No significant anomalies were demonstrated in the radiology. In these circumstances it was difficult to understand why a fusion had been recommended.
The respondent noted that the applicant did not rely on any evidence from Dr Spittaler.
The respondent submitted that the L1/2 level was not implicated in the injurious event, even if the applicant now had symptoms arising at that level. It was foolhardy to suggest that the surgery would assist the applicant because his clinical presentation was at odds with the radiological investigations. There was some psychological overlay that had not been explained. In all the circumstances, the respondent submitted that the proposed surgery was neither reasonably necessary, nor did it result from the accepted work injury.
With regard to the claim for weekly compensation, the respondent noted that the roles identified in the vocational report and Dr Keller’s evidence were sufficiently sedentary and light. The applicant was able to stand or sit and the jobs did not involve any heavy lifting. The work could be performed on a part-time basis.
The respondent referred to the definition of suitable employment in s 32A of the 1987 Act.
The respondent submitted that although the applicant had numerous certificates of capacity certifying him as having no current work capacity they were not underpinned by any report from the applicant’s treating doctor. The certificates were compromised a bare ipse dixit.
For the applicant to satisfy s 38(2), the Commission must find that he has had no current work capacity. If the applicant was able to perform any light sedentary job, even on a part-time basis he would have some work capacity. The respondent submitted that the Commission would find that the applicant could perform some form of light work. As the applicant had not engaged in work for at least 15 hours per week, he was unable to satisfied the requirements of s 38(3) of the 1987 Act.
The respondent submitted that the Commission must disregard whether the work was actually available in the employment market. The Commission ought to disregard any work previously performed and look at whether any work, even on the lightest and most part-time basis, could be performed. It did not matter where the applicant resided.

The respondent submitted that the report of Dr Endrey-Walder was extremely sparse and did not explain why the applicant could not undertake work requiring as little skill as a ticket seller or meet and greeter. It beggared to belief to suggest that the applicant had zero work capacity. The applicant was still relatively young and capable of undertaking some form of part-time work.

Applicant’s submissions in reply

The applicant submitted that he had undergone an MRI on 15 August 2019 which identified degenerative disc disease at L1/2. It was not correct to say that there was no radiological evidence of any abnormality at the level at which surgery was proposed.
The applicant noted that there had been no return to work planning process or occupational services offered to the applicant. These were relevant matters to take into account in considering the applicant’s capacity to engage in suitable employment.
Dr Keller had given an unequivocal opinion that the applicant was totally unfit for work. Although Dr Keller had a different opinion on causation there was an unambiguous statement of opinion from an occupational physician as to the applicant’s capacity to perform suitable work.
The applicant submitted that prior to the surgery proposed, the applicant had undergone conservative treatment. The applicant gave evidence that he undertook the course of alternative treatment with no improvement. The reason the applicant had not been back to A/Prof Steel for an updated report was because the insurer would not pay the applicant’s medical expenses and had not done so for some time.
The applicant had demonstrated that the surgery ought to progress, having trialled the pain medication suggested by A/Prof Steel.

Respondent’s further submissions

The respondent submitted that the question of whether the applicant was ready to proceed to surgery was one which ought to be addressed by his specialist. It was most unusual that the applicant had not returned to see A/Prof Steel as presumably he could obtain Medicare funding for that. Even without a further consultation, there was no evidence to suggest that A/Prof Steel had been asked to comment. The applicant’s statement evidence was not sufficient to justify a present need for surgery.

FINDINGS AND REASONS

Proposed surgery

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
In these proceedings, there is no dispute that the applicant sustained an injury to his lumbar spine on 15 November 2016 although the nature and extent of that injury is in dispute.
It is the applicant who bears the onus of establishing on the balance of probabilities that the surgery is reasonably necessary as a result of the injury. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[1] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[1] [2008] NSWCA 246.
The test in s 60 requires consideration of both the causal relationship to the injury and the reasonableness of the treatment. A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates,[2] where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[2] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
What constitutes “reasonably necessary” treatment was considered in the context of s 10 of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[3] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[3] (1986) 2 NSWCCR 32 (Rose).
Further, his Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[4] and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[4] [1997] NSWCC 1.
In Diab v NRMA Ltd,[5] Roche DP provided a summary of the relevant principles as follows:
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a)     the appropriateness of the particular treatment;
(b)     the availability of alternative treatment, and its potential effectiveness;
(c)     the cost of the treatment;
(d)     the actual or potential effectiveness of the treatment, and
(e)     the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.
While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’ (Margaroff v Cordon Bleu Cookware Pty Ltd [1997] NSWCC 13; (1997) 15 NSWCCR 204 at 208C). Thus, it is not simply a matter of asking, as was suggested in Bartolo, is it better that the worker have the treatment or not. As noted by French CJ and Gummow J at [58] in Spencer v Commonwealth of Australia [2010] HCA 28, when dealing with how the expression ‘no reasonable prospect’ should be understood, ‘[n]o paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content’.”[6]
[5] [2014] NSWWCCPD 72.
[6] At [88] to [90].
Deputy President Roche commented further:[7]
“Reasonably necessary does not mean “absolutely necessary” (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[7] At [86].
The evidence before me in this case indicates that the mechanism of injury involved some considerable force. This was noted in particular, by the applicant’s expert, Dr Endrey-Walder. Although there were some suggestions of symptoms at the applicant’s lower back for which the applicant was treated with strong medication prior to the injurious event, I accept that prior to the work injury the applicant was able to engage in relatively strenuous, physical work as a cleaner as well as regular sporting and social activities.
Following the injurious event, the applicant sought treatment from his general practitioner and was referred for radiological investigations of his lumbar spine. Although the reports of those radiological investigations revealed minimal pathology, the applicant was noted to have mild degenerative changes at the lumbar spine.
The respondent’s experts, A/Prof Miniter and Dr Keller, have relied heavily on those relatively benign radiological reports in forming the view that the applicant did not present with any ongoing effects of a work injury at the time of their examinations .
A/Prof Steel does, however, appear to have been able to view the films or images from the radiological investigations. A/Prof Steel commented in his report for the applicant’s general practitioner on 4 November 2021 that the MRI of February 2017 showed that the anterior portion of the L1/2 disc had herniated. This was not a finding mentioned in the report of the same MRI, which appears to have been requested predominantly to investigate symptoms potentially originating at the L4/5 level.
By the time of the MRI performed on 15 August 2019 there was significant disc degeneration at L1/2. The rest of the spine was noted by A/Prof Steel to be essentially normal. Significant disc degeneration at the same site with mild modic end plate changes was again seen on the MRI performed on 18 August 2022. Low-grade uptake in the endplates of the L1/2 disc was also seen on a bone scan performed on 18 August 2022.
In his most recent report, A/Prof Steel reported that modic end plate changes are usually symptomatic and that L1/2 was most likely the source of the applicant’s lower back pain. The natural history of such changes was that they would continue to worsen. Although
A/Prof Steel acknowledged that the applicant did not report significant sciatic pain or sensory loss indicating nerve compression, he did have significant mechanical lumbar spine pain from the time of the injury onwards. The fusion surgery proposed by A/Prof Steel would prevent further movement at that level and have an 80% chance of significantly improving the pain.
I acknowledge the respondent’s submission that A/Prof Steel first saw the applicant several years after the injury which was initially diagnosed as an acute strain. A/Prof Steel has, however, commented on and explained the progression of symptoms. His views have also received support from the applicant’s medicolegal expert, Dr Endrey-Walder.
Although Dr Endrey-Walder also initially diagnosed the applicant’s injury as a soft tissue injury to the back, more recently he has adopted the diagnosis of an intervertebral disc injury at the L1/2 level. Dr Endrey-Walder agreed that the disc was damaged at the time of the subject accident and, over the years, this had resulted in modic changes at that level of the spine.
A/Prof Miniter examined the applicant prior to the most recent MRI and a bone scan, and the most recent reports from A/Prof Steel explaining his opinion as to the nature of the injury and his justification for surgery. It also appears that A/Prof Miniter did not have the benefit of the radiological images from the 2017 MRI scan. The report of that scan was silent with respect to the L1/2 disc level.
A/Prof Miniter’s view that there was no injury or need for surgery must therefore be viewed in the context of the more limited material before him than was before A/Prof Steel and now the Commission.
Dr Keller has similarly formed the view that there was minimal pathology shown on the radiological investigations to explain the applicant’s reported symptoms. Like, A/Prof Miniter, however, Dr Keller has not engaged with A/Prof Steel’s view of the radiological investigations and in particular, the pathology identified by him at L1/2.
The applicant has consistently reported increasingly debilitating symptoms at his lumbar spine from the time of the accident. The applicant has reported being unable to walk significant distances and has been observed to ambulate with a walking stick. The applicant was found to have severely restricted movement at the lumbar spine in all of the physical examinations described in the evidence before the Commission. The applicant has consistently described severe functional limitations due to his pain.
A/Prof Steel and Dr Endrey-Walder have accepted that the applicant’s presentation can be explained by the mechanism of injury and the subsequent radiological investigations.
The evidence of the applicant’s doctors is persuasive and, in my view, is not undermined by the opinions given by A/Prof Miniter and Dr Keller. I am satisfied that the event on
15 November 2016 gave rise to a disc injury at the L1/2 level which has deteriorated over the years, for the reasons explained by A/Prof Steel and Dr Endrey-Walder.
I have carefully considered the respondent’s submissions with regard to whether A/Prof Steel had expressed a view that the surgery was, at the present time, reasonably necessary. It is true that in his most recent report, A/Prof Steel recommended that the applicant trial a course of more conservative treatment involving Mobic and pulse prednisone and commented that there was no medical urgency to the surgery.
In the same report, however, this course of treatment was described as “temporary” and intended to “postpone” the L1/2 fusion. A/Prof Steel commented that surgery was the only option to “permanently” relieve pain by taking away movement around the degenerative disc segment. Unless the applicant’s pain could be modified by other means such as the Mobic and prednisone, he would remain in pain. No other alternative treatment such as physiotherapy or medication was likely to give the applicant sustained relief.
The applicant has given evidence that he trialled the conservative treatment recommended by A/Prof Steel but it did not provide him with relief. Although it would have been preferable to have a further report from A/Prof Steel discussing the results of the trial, the applicant has explained that he is unable to afford to see A/Prof Steel again as the insurer has been unwilling to fund his treatment. I accept that this is a reasonable explanation. Even with Medicare funding, as suggested by the respondent’s submissions, I accept that a consultation or report from a specialist surgeon such as A/Prof Steel would normally incur some significant out-of-pocket expense.
I also note the Dr Endrey-Walder appears to have accepted that A/Prof Steel’s recommendation for surgery was presently reasonable.
A/Prof Miniter’s view that the surgery was not reasonably necessary was informed by his view as to the nature of the injury. For the reasons given above, I have preferred the opinions of A/Prof Steel and Dr Endrey-Walder in this regard.
After careful consideration of the evidence and submissions, I am satisfied that there is a present need for the surgery proposed by A/Prof Steel. I am further satisfied that need for surgery results from the work injury which occurred on 15 November 2016.
I accept that the treatment is designed to arrest or abate the progress of the condition at the L1/2 level by reducing movement and thereby reducing the applicant’s mechanical back pain. No alternative treatment which has not already been trialled, without success, is identified on the material before me. The applicant’s doctors have both accepted that the treatment is appropriate and likely to be effective. The respondent’s expert evidence does not cause me to doubt the applicant’s doctors’ opinions. While the cost of the treatment is not insignificant, I accept that it is reasonable in the absence of any other permanent or long-term treatment for the applicant’s condition.

The respondent has also drawn attention to the applicant’s weight as an issue relevant to a determination as to whether the surgery proposed is reasonably necessary. I am satisfied, having physically examined the applicant, that both A/Prof Steel and Dr Endrey-Walder would have been aware of the applicant’s elevated body mass index. Neither doctor has identified this as a barrier to surgery.
In all the circumstances, I find that the L1-2 decompression and interbody fusion and bone graft proposed by A/Prof Steel is reasonably necessary as a result of the injury on
15 November 2016 for the purposes of s 60 of the 1987 Act.
There will be an order for the respondent to pay the costs of and incidental to the proposed surgery.

Weekly compensation

Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
The applicant seeks an order for ongoing weekly compensation beyond the second entitlement period (130 weeks). After the second entitlement period, s 38 of the 1987 Act provides:
“38    Weekly payments after second entitlement period (after week 130)
(1)     A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2)     A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3)     A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if—
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker’s current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4)     An insurer must, for the purpose of assessing an injured worker’s entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted—
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note—
An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5)     An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(7)     The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(8)     A worker’s entitlement to compensation under this section may be reassessed at any time.”
For the applicant to be entitled to weekly compensation pursuant to s 38 of the 1987 Act, he must demonstrate that he has, during the relevant period, had “no current work capacity”. That is because the applicant has not worked in that period and is not a worker with high or highest needs.
The expression, “no current work capacity” is relevantly defined in item 9 of Schedule 3 to the 1987 Act as follows:
“9      Meaning of ‘current work capacity’ and ‘no current work capacity’
(1)     An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2)     An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The expression “suitable employment” is defined in s 32A of the 1987 Act as:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)     having regard to—
(i)  the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar[8] commented in this regard:
“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).
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.
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 capacity 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.”
[8] [2014] NSWWCCPD 55.
The applicant has been certified as having no current work capacity in certificates issued by his nominated treating doctor throughout the period of weekly compensation claimed.
Dr Endrey-Walder has supported this certification, stating that the applicant was not fit for any kind of remunerable work even on a light duty or part-time basis as suggested in the RehabLife report.
Although A/Prof Miniter expressed the view that the applicant could return to work, he did so while noting that the applicant would need to manage his current levels of discomfort and had not worked for almost six years. Ultimately A/Prof Miniter did not accept that there was any incapacity resulting from the work injury. As I have explained above, however, I am not satisfied that this view has been reached after consideration of the structural or pathological changes identified by A/Prof Steel and Dr Endrey-Walder.
Dr Keller’s views are affected by the same issue. Dr Keller accepted that the applicant was totally unfit for work but did not attribute this to a work injury on the basis that he considered the injury consisted only of soft tissue injuries or bruising which should have healed. I have not accepted that characterisation of the nature of the work injury.
The functional and vocational assessment report relied on by the respondent stands apart from the medical evidence which I have accepted with regard to the nature of the applicant’s incapacity. With regard to the particular roles identified in the report, the applicant has provided cogent explanations as to why those roles were unsuitable having regard to his medical condition, functional limitations and work experience. There is no evidence of any occupational rehabilitation services having been provided to the applicant.
After careful consideration of the evidence and submissions, I am satisfied that the applicant has during the period from 22 September 2019 to 9 November 2021 had no current work capacity.
The applicant satisfies the requirements of s 38(2) of the 1987 Act and is entitled to an award of weekly compensation at the rate prescribed in s 38(6) of the 1987 Act. No submissions or evidence have been presented to suggest that s 39 of the 1987 Act does not apply to the applicant. I accept that the applicant’s entitlement weekly compensation ceases after 260 weeks.

[2023] NSWPIC 690

22 December 2023