Sutherland Shire Council v Wurzel - [2010] NSWWCCPD 79

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Sutherland Shire Council v Wurzel [2010] NSWWCCPD 79
APPELLANT:		Sutherland Shire Council
RESPONDENT:		Rolf Wurzel
INSURER:		Sutherland Shire Council
FILE NUMBER:		A1-000441/10
ARBITRATOR:	Ms M Dalley
DATE OF ARBITRATOR’S DECISION:		6 April 2010
DATE OF APPEAL DECISION:		27 July 2010
SUBJECT MATTER OF DECISION:		Nature and extent of partial incapacity; ability to earn; discretion; section 40 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Vardanega Roberts
Respondent:	Leitch Hasson Dent

ORDERS MADE ON APPEAL:

Paragraph 1 of the Arbitrator’s determination of 6 April 2010, as amended on 3 May 2010, is revoked and the following order made in its place:

“1. The respondent employer is to pay the applicant worker weekly compensation in the sum of $158.00 per week under section 40 of the Workers Compensation Act 1987 from 30 July 2009 to date and continuing.”

Paragraph 2 of the Arbitrator’s determination is confirmed.

The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

The respondent worker, Mr Wurzel, started work as a labourer for the appellant employer, Sutherland Shire Council (‘the Council’), in approximately 2004. On 10 April 2007, he injured his back whilst lifting rubbish. Injury is not disputed.
After a few weeks off work, he returned to employment on light duties. His back symptoms increased on 1 May 2007, but whether he stayed at work at that time is unclear. The Council terminated his employment on 22 May 2007 because of misconduct, but then made voluntary payments of weekly compensation.
In a section 54 notice dated 16 June 2009, the Council informed Mr Wurzel that, from 29 July 2009, his weekly compensation would be reduced to $28.99 per week. That amount was based on the difference between his pre-injury earnings of $927.30 and his assessed ability to earn as a cleaner/labourer of $898.31. In other words, the Council asserted that the economic loss from the injury was $28.99 per week. The notice did not allege that the effect of the injury had ceased or that Mr Wurzel had no incapacity on the open labour market.

In previous proceedings against the Council, Mr Wurzel sought lump sum compensation as a result of permanent impairment due to the condition of his lumbar spine following his injury on 10 April 2007. The Commission referred that application to an Approved Medical Specialist (‘AMS’) for assessment in mid-2008. Dr Sachdev assessed Mr Wurzel to have nil whole person impairment. On appeal, a Medical Appeal Panel revoked Dr Sachdev’s assessment on 4 September 2008 and issued a new Medical Assessment Certificate assessing Mr Wurzel to have a five per cent whole person impairment as a result of his injury. The Council has paid the compensation due as a result of that assessment.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 22 January 2010, Mr Wurzel sought weekly compensation in the sum of $370.00 per week from 30 July 2009 to date and continuing. The Council’s Reply, filed on 10 February 2010, relied on the section 54 notice dated 16 June 2009 and pleaded no other issues.
The Commission listed the matter for conciliation and arbitration on 19 March 2010. The matter could not be resolved and proceeded to arbitration. Neither side called any oral evidence. In a reserved decision delivered on 6 April 2010, the Arbitrator determined that Mr Wurzel had a capacity to earn between $625.00 and $642.00 per week. Deducting the average of those two figures from comparable earnings of $927.00 per week left a difference of $294.00, which she found to be Mr Wurzel’s entitlement under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Commission issued a Certificate of Determination on 6 April 2010 ordering the payment of compensation from 30 April 2009. With the consent of the parties, the Commission issued an amended Certificate of Determination on 3 May 2010 in the following terms:
“The Commission determines:
1. That the Respondent pay the Applicant weekly compensation at the rate of $294.00 from the 30/07/09 to date pursuant to section 40 of the Workers Compensation Act 1987 such payments to continue in accordance with the Act.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In an appeal filed on 4 May 2010, but not registered until 10 May 2010, the Council seeks leave to appeal the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

It is not disputed that the monetary thresholds in section 352(2) are satisfied.

Time

Mr Wurzel has submitted that, though the notice of appeal is signed and dated 4 May 2010, as it was not “registered” in the Commission until 10 May 2010, it was filed outside the 28-day period in section 352(4) of the 1998 Act.
The Commission’s file confirms that the appeal was lodged on 4 May 2010. There is always a delay between date of lodgement and date of registration of an appeal. For the purposes of section 352(4), an appeal is “made” when it is “lodged” (filed) with the Commission, even though registration may not occur until a few days later. As the Certificate of Determination was issued on 6 April 2010, the twenty-eighth day for filing the appeal was 4 May 2010. The appeal was therefore lodged within time.
I grant leave to appeal.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

THE EVIDENCE

Mr Wurzel’s evidence is set out in two statements, the first dated 15 February 2008 and the second dated 17 December 2009.
Mr Wurzel was born in 1964. After completing his Higher School Certificate in 1982, he completed a real estate certificate course at Gymea Technical College in 1983 and an auctioneer and agent’s course at Sydney Technical College in the same year. He then worked as a property manager between 1983 and 1989. Since then, he has worked as a kitchen hand, console operator, process worker/storeman, cleaner, security guard, and as a furniture removalist.
He said in his 2008 statement that, notwithstanding an extensive search, he has not been able to resume manual work since he ceased working with the Council in May 2007.
He said that he was always in some degree of pain in his lower back and that his symptoms were made worse with activity and in colder weather. Though he initially experienced some lower limb pain, that had decreased over time. He said that he was in equal discomfort sitting or standing and that his sleep was sometimes interrupted. He did not feel that his symptoms had improved.
Though Mr Wurzel had stopped physiotherapy by the time of his 2008 statement, he said that he continued his exercise program. He took Panadeine Forte regularly to relieve his pain. He said that he could not lift anything over 10 kg and that repetitive lifting was painful. He had always worked in manual labour and, as that avenue of employment had been curtailed, he was looking for a different industry.
In his 2009 statement, Mr Wurzel repeated that he continued to suffer from chronic back pain and that he had difficulty with prolonged sitting and standing, lifting heavy objects, and doing overhead work. As a result of his limitations, he felt unable to return to his pre-injury employment as a street cleaner and labourer with the Council. He was certain that he would find it difficult to be a security guard because he is unable to tolerate standing and sitting for long periods. He acknowledged that he received training in traffic control from the workers compensation rehabilitation provider, but he thought that work would also be difficult for him due to the standing and sitting involved.
Mr Wurzel said that he had been actively seeking employment as a casual storeman, traffic controller and in warehouses, but had not been successful. He believed it would be difficult for him to gain employment because he had no real experience of the type generally required by warehouse managers. He did not hold a forklift licence.
Mr Wurzel has found it difficult to find work because prospective employers ask him if he has had any injuries. When he tells them of his back condition, they are reluctant to offer him employment. He has applied for casual work in retail stores, but has been unsuccessful because of his lack of experience. He expressed apprehension about the suitability of that kind of work because it involved prolonged standing and overhead work, which would irritate his back.
Mr Wurzel attached to his Application 43 letters from various employers rejecting his numerous job applications in various positions, including process working, storeperson, general hand, chemical plant operator, and various sales positions.

Medical evidence

Dr Loefler, Mr Wurzel’s treating specialist, reported on 4 June 2007 that Mr Wurzel’s range of motion was poor because flexion and extension seemed to exacerbate his back pain. Radiological investigations demonstrated changes at L2/3 and L3/4, but no nerve root compression. He concluded that the history and findings on examination were consistent with a musculoligamentous sprain of the lumbar spine. There may also have been an element of facet joint arthritis or pain from the degenerate disc. The disc pathology, however, was longstanding and preceded the recent work incident. On the whole, he felt that Mr Wurzel’s back would settle with a gym-based strengthening program.
Dr Bentivoglio, orthopaedic surgeon, examined Mr Wurzel for medicolegal purposes on 26 October 2007 and reported to his solicitors on 31 October 2007. He took a history of the worker’s injury in April 2007. Mr Wurzel complained that he always had some degree of low back pain and that his symptoms were worse with activity. On examination, Mr Wurzel was tender over the lower lumbar spine region and had about two-thirds normal range of movement. His straight leg raising was restricted by low back pain to about 30 degrees in each leg. He was, however, able to sit upright on the examining couch with his lower legs extended. There were no localising motor, sensory or reflex abnormalities in the legs.
A CT scan performed in April 2007 revealed marked degenerative changes in the lumbar spine and an MRI scan in May 2007 showed an annular tear and a disc bulge at L5/S1, together with a left foraminal disc bulge and dehydration at L4/5.
Dr Bentivoglio concluded that Mr Wurzel had aggravated pre-existing degenerative changes in his lumbar spine region and sustained “some degree of discal damage at the L4/5 and L5/S1 levels in his lumbar spine region in the incident at work which he described”. He thought Mr Wurzel would continue to experience some degree of symptoms in his back in the foreseeable future and “almost certainly indefinitely”. He would always have to be careful to avoid activities that were arduous in nature or required him to bend and twist. He thought that Mr Wurzel would “never be capable of returning to his full pre-injury duties”. At best, he would only ever be capable of performing “light sedentary duties”.
Dr Maxwell, orthopaedic surgeon, examined Mr Wurzel on behalf of the Council’s solicitors on 28 February 2008 and prepared a report on the same date. He took a history that Mr Wurzel had sold his car because he lost his licence due to non-payment of fines. He relied on public transport, but had only a 30 second walk to the railway station. After his injury on 10 April 2007, Mr Wurzel returned to work on light duties on 1 May 2007. He continued those duties for about three weeks, until he had a “relapse” and went off work again. He told Dr Maxwell that he was retrenched on 22 May 2007 and then said it was a “mutual agreement”. He said that his supervisor made it difficult for him to work because he did not have his driver’s licence and it was difficult for him to travel to work for the early morning starts.
Mr Wurzel admitted having had some aching and occasional stiffness in his back after work prior to his injury in April 2007, but said that the pain was never incapacitating. However, there were occasions when he took sick leave because of his back. The pain he experienced in his back on 10 April 2007 was like a “knife” going into his lower back. He collapsed and eventually stood up and contacted his supervisor on a two-way radio. He saw his usual general practitioner, Dr Mankarios, who referred him for a CT scan and then to Dr Loefler.
At the time of Dr Maxwell’s examination, the worker continued to experience pain in the midline of his lumbar spine, which radiated to either side. He said that he was unable to walk more than one kilometre. He had difficulty getting comfortable when sleeping. He had no real problems with his legs, but sometimes got a little pain in his right leg. On examination, Mr Wurzel could flex to just below his knees. Extension was 30 per cent of normal, with a complaint of pain at the extreme of movement. There were no neurological signs in the legs and no muscle guarding or spasm.
Dr Maxwell noted that Mr Wurzel had significant pre-existing developmental and degenerative changes in his upper lumbar spine. Though those changes may cause intermittent low grade back discomfort, the doctor felt that they were unlikely to cause significant incapacitating back discomfort in the future. He diagnosed a low back strain, the effects of which would “normally settle in 4–6 weeks”. Dr Maxwell did not believe the worker had sustained a significant structural lesion in the lifting episode. He did not consider that the worker’s continuing symptoms were a result of any work-related injury. He thought Mr Wurzel was fit to return to his pre-injury work and to do general work available on the open labour market.
Dr Mankarios provided a progress WorkCover certificate on 3 June 2008, certifying the worker fit for permanently modified duties from that date in the following terms:
“As per recommendations included in Program Extension Report dated 27/5/08
Lifting from knee height up to 10 kg
Lifting from shoulder height up to 10 kg
Pushing/pulling up to 20 kg
Bilateral carrying up to 10 kg
Ladder climbing
Repetitive squattingObserve [sic] correct procedures while doing physical work
Try 8 HR days 5 days a week.” (emphasis added)

Rehabilitation reports

The Council referred Mr Wurzel to Rehabilitation Services Pty Ltd. That organisation provided Mr Wurzel with job-seeking assistance. It also assisted him to obtain an OHS Induction Certificate and a Traffic Control Certificate in July 2008 to expand his job-seeking options.
Ms Judd, rehabilitation consultant with Rehabilitation Services, noted in her report of 11 March 2009 that Mr Wurzel displayed minimal motivation with job-seeking activities. Nevertheless, he had applied for positions as a kitchen hand, operations assistant, merchandiser, and shopfitter/window installer.
Ms Judd explored the possibility of Mr Wurzel working as a traffic controller for HMS Traffic. Whilst the employer was interested in pursuing a work trial, employees had to have their own car and driver’s licence. Mr Wurzel advised on 2 March 2009 that he would “look into” the possibility of renewing his licence and getting a car.
Ms Ellis, occupational therapist, completed a functional capacity assessment for Mr Wurzel on 2 April 2009. The assessment indicated that Mr Wurzel was capable of working within the following limitations:
(a)     care to be taken during transfers between tasks;
(b)     care to be taken when carrying loads, squatting and overhead reaching;
(c)     frequent carrying/lifting at waist height up to 10 kg;
(d)     occasional carrying/lifting at waist height up to 15 kg;
(e)     maximum lifting from ground up to 10 kg, and
(f)   sitting, standing and walking postures to be changed every 30 minutes.
Based on the assessment, Ms Ellis concluded that Mr Wurzel was capable of working normal full-time hours within the limitations specified above. In the course of the assessment, Mr Wurzel stated that he experienced constant, centralised, low back pain, which he rated at five out of 10. He said that the main aggravating factors were walking/standing/sitting for longer than 30 minutes, bending and squatting. Changing position and resting alleviated his symptoms. He managed his condition with daily home-based exercises and water-based exercises two to three times per week.
Ms Ellis recorded that the worker had a reduced capacity to tolerate lifting from the floor and unilateral carrying, and that that would “only be recommended on an occasional basis”. Bilateral carrying and lifting from waist height and above were better tolerated, as they did not require the ability to squat. Mr Wurzel reported a complete inability to perform tasks such as prolonged walking and sitting, and lifting heavy weights. He had great difficulty sleeping through the night and difficulty bending to put on his socks or to clean the bathtub.
Ms Ellis recommended that Mr Wurzel was fit for “medium work”. He was capable of working for eight hours per day for five days per week, with maximum frequent lifting of 10 kg and being able to change his posture every 30 minutes.
Ms Judd reported on 8 April 2009 that the worker had been “minimally compliant” with job seeking, having applied for work as a storeperson, assembler/installer, and coin processor. Ms Judd had been unsuccessful in securing a work trial opportunity for Mr Wurzel.
Ms Cleland, psychologist and rehabilitation consultant, prepared a section 40 assessment report on 22 April 2009. She recorded that Mr Wurzel lost his driver’s licence (due to non-payment of fines) on or about 6 March 2007. His licence continued to be suspended and he had no immediate intention of renewing it.
Mr Wurzel presented as a well-spoken and confident man, but his lack of a licence would limit opportunities. His experience and training would make him competitive within the security and real estate industries. However, he had no recent experience in real estate and his lack of a licence would impact on his ability to perform property management work. In addition, his security licence had expired and, as a result, security work would be limited to control room or security sales work.
Ms Cleland recorded that the Council terminated Mr Wurzel’s employment because of “performance management issues” and not due to his injury. She considered that he would be capable of performing “comparable employment as a cleaner”. The main reason he was unable to perform his pre-injury duties was due to the reported suspension of his driver’s licence. A valid licence was required for his pre-injury job with the Council. Mr Wurzel said that, having weighed up the costs, he had chosen not to pursue the return of his licence. He believed he would be able to complete his pre-injury work, given that he generally worked in teams and, if he had any difficulties with his duties, he would have been able to request assistance. Ms Cleland concluded that, for these reasons, it was considered that Mr Wurzel “could physically perform comparable employment”.

Ms Cleland stated that the worker’s pre-injury duties required him to push/pull a buggy weighing up to 5 kg when full, pick up litter weighing 1–2 kg, collect leaves and mulch using a broom and shovel, and clean toilets. Mr Wurzel said that he enjoyed the variety of work locations offered by his pre-injury employment and that, but for his injury, he would likely still be with the Council. Ms Cleland observed that that was not consistent with his reported driver’s licence suspension.
Ms Cleland concluded that Mr Wurzel would be able to perform comparable employment as a cleaner, but, due to the nature of such work, each position would need to be assessed individually. Mr Wurzel would be physically capable of performing his pre-injury cleaning duties. His medical restrictions would allow him to perform the “majority of cleaning jobs”. Such jobs would allow Mr Wurzel to move around the workplace, as opposed to standing for prolonged periods in one location.
Ms Cleland identified six positions advertised in the southern Sydney area in the previous month. One of those jobs required a driver’s licence and one also incorporated maintenance duties that were considered to be within Mr Wurzel’s physical capacity. The wages offered varied from $40,000.00 to $45,000.00 per annum, or $769.00 to $865.00 (rounded down) per week respectively. Mr Wurzel’s competitiveness was limited by his lack of transport. In the wider Sydney metropolitan area, there were 49 cleaning positions advertised. The base wage under the Local Government Enterprise Agreement was $748.60 per week.
Ms Cleland also assessed the worker to be fit to work as a radio dispatcher/control room operator. There was one position advertised in the southern Sydney area, but transport was required. The full-time salary was $642.90 per week. He was also fit to work in customer service as a cashier at a wage of $624.30 per week. She also felt that Mr Wurzel could perform process work where he was able to alternate between sitting and standing. There were numerous positions advertised (approximately 60) for food-handling packers and food process workers.
Ms Judd reported on 7 May 2009 that Mr Wurzel’s lack of a driver’s licence, car and computer significantly impacted on his likelihood of obtaining employment. She requested him to consider renewing his driver’s licence.
Ms Cleland prepared an amended section 40 assessment report on 4 June 2009. Assuming that Mr Wurzel worked “similar hours” to those worked in his pre-injury employment, she assessed his earning capacity to be as follows:
(a)     cleaner $898.31
(b)     radio dispatch $693.00
(c)     customer service $641.00.
Ms Cleland recorded Mr Wurzel’s regular hours in his pre-injury employment to be from 5.00 am until 12.00 noon Monday to Friday, 4.00 am until 10.00 am Saturdays and Sundays, and 4.00 am until 10.00 am on public holidays. She did not identify his exact hours per week, but noted that he worked a rotating roster that could “incorporate any of these timeframes”. I infer that his usual hours with the Council were much longer than 38 per week.
Ms Judd prepared a rehabilitation closure report on 1 September 2009. Mr Wurzel had been job-seeking with rehabilitation assistance since June 2007, but without success. When he was initially assessed by Rehabilitation Services in June 2007, he was assessed to be fit for work as a control room operator, call centre operator, cashier (customer service) and radio dispatcher. In a case conference on “3 June 2009” [sic 3 June 2008], Dr Mankarios advised that the worker should be fit for a variety of full-time work, including stores work. Due to Mr Wurzel’s long history of minimal compliance with the job-seeking assistance provided by Rehabilitation Services, the Council directed that his file be closed.
Mr Wurzel relied on a section 40 assessment report from Craig Martin, occupational rehabilitation consultant, dated 20 August 2009. Mr Martin noted the restrictions in Dr Mankarios’s certificate dated 3 June 2008 and Dr Bentivoglio’s findings in his report of 31 October 2007. He recorded that Mr Wurzel complained of chronic lower back pain, low back stiffness, headaches, neck pain and sleeping difficulties due to pain. He stated that Mr Wurzel was suited for work categorised as “sedentary” or “light”. He had a lifting restriction of 10 kg.
Mr Martin assessed that the following occupations would be suitable for Mr Wurzel:
(a)     crossing supervisor;
(b)     security guard (with licence renewal), and
(c)     sales clerk (with retraining).
Crossing supervisors earned $18.25 per hour and were usually employed for 15–20 hours per week. Vacancies were regularly advertised in Sydney newspapers.
Mr Martin did not consider the position of radio dispatcher to be suitable for Mr Wurzel because of the prolonged sitting required and because Mr Wurzel did not possess the appropriate qualifications. He also did not have adequate knowledge of computer software.
Mr Martin did not think that work as a cleaner would be suitable for Mr Wurzel because of the time spent standing and bending or twisting. He said that the physical demands of commercial cleaners were classified as “medium”. That would require Mr Wurzel to lift 22.7 kg and “exceed his medical restrictions/functional abilities”. If Mr Wurzel were to perform the duties of a commercial cleaner, Mr Martin felt that there was a foreseeable risk that he would aggravate his lower back injury. Mr Wurzel’s restrictions also ruled out work as a carpet cleaner. Mr Martin felt that the worker was unlikely to gain full-time employment in the open labour market without retraining. With appropriate training, Mr Wurzel would be considered qualified to work as a sales clerk or security guard.
Mr Martin considered that the restrictions noted by Ms Ellis in her report of 10 April 2007 were consistent with Mr Wurzel being fit for work classified as “light”, not “medium”, as stated by Ms Ellis and Ms Cleland. He said that medium work was defined as lifting 22.7 kg occasionally, with frequent lifting and/or carrying of objects weighing 11.3 kg. Mr Wurzel had not demonstrated an ability to lift 22.7 kg, as would be required to classify his category of work as “medium”. Mr Martin could not find any job titles under “customer service (cashier)” or similar. He assessed Mr Wurzel’s ability to earn to be $273.00 per week. He recommended that Mr Wurzel pursue the vocational goals of sales clerk and security guard, and that he be referred to a rehabilitation provider for assistance with his return to work.
Ms Cleland prepared a supplementary report on 26 October 2009, dealing with the matters raised by Mr Martin. She stated that the “medium work category” was based on a professional opinion after objective physical testing. In respect of Mr Martin’s reference to work as a sales clerk, Ms Cleland noted that Mr Wurzel had previously performed sales work as a self-employed car salesperson and in real estate. She added that “cashier-type roles” were generally more accommodating of people performing their duties standing or sitting, and allowed them to alternate between the two. The positions also incorporated ticket sales and collection. On the job training was generally provided.
Ms Cleland explained that the dispatch and control room work she had in mind was with courier companies, security companies and alarm monitoring, not work with police or rescue or the ambulance service. The work would allow Mr Wurzel to alternate between sitting and standing as required. She confirmed that the objective evidence indicated that Mr Wurzel was fit to work as a cleaner, though each position would need to be assessed on an individual basis. Having previously operated his own cleaning business, Mr Wurzel had numerous transferable skills.
Mr Martin responded to Ms Cleland’s supplementary report on 11 November 2009. He did not agree that Mr Wurzel was fit for work classified as “medium” because such work involved lifting 22.7 kg maximum occasionally, with frequent lifting and/or carrying of objects weighing 11.3 kg.

Relevant correspondence

The Council terminated Mr Wurzel’s employment by letter dated 22 May 2007. That letter referred to a meeting held on that day at which the worker raised his voice and acted in an intimidating way, and insulted Council employees. The letter added:
“Council will not tolerate such bullying and harassing behaviour. As you have already received a Third and Final Warning, and you have exhibited such unacceptable behaviour, Council feels that this employment relationship is simply too frustrated and unworkable that you are terminated effective today. One week’s pay in lieu of notice will be paid to you in the next available pay period.”

Surveillance

Mr Wurzel was placed under surveillance on 13, 14, 15 and 25 January 2010. On 15 January 2010, 27 minutes of film was exposed. The film revealed Mr Wurzel to bend freely from the waist on several occasions, pull weeds from his garden, squat to ground level, cut branches from a tree and collect mail from his letterbox. Mr Wurzel tendered no evidence in response to the film. He conceded that he was the person in the film.

Dr Mankarios’s clinical notes

Dr Mankarios saw the Mr Wurzel on 10 April 2007. The doctor recorded that the worker hurt his back while shovelling at work. He complained of pain in the “midline”, but had no radiation into the legs or paraesthesia. Flexion was to 45 degrees with some signs of nerve irritation on straight leg raising. Mr Wurzel attended on several occasions for his back up to June 2008.
The notes made no mention of any back problems between June 2008 and 15 December 2009, though Mr Wurzel attended on several occasions for unrelated matters. It was recorded that Mr Wurzel experienced neck pain on 10 December 2009 after lifting a ladder. The entry for 15 December 2009 recorded “lower back pain again”. On 16 December 2009, it was recorded that he felt much better. On 19 January 2009, it was recorded that Mr Wurzel did weights at home.

THE ARBITRATOR’S REASONS

The Arbitrator stated that the following issues remained in dispute:
(a) did Mr Wurzel have an ongoing economic incapacity in the open labour market due to his injury on 10 April 2007?
(b) if so, at what rate was he entitled to receive weekly payments?
After reviewing the evidence, the Arbitrator concluded:
(a) it was clear that Mr Wurzel suffered “at least a partial economic loss in the open labour market” arising from his injury. Even the section 40A assessment relied upon by the Council suggested that there was still an ongoing economic loss of $28.30 per week;
(b)     Mr Wurzel’s restrictions, which were permanent, limited his ability to lift, bend and squat repetitively, and limited his hours to eight per day;
(c)     the Appeal Panel found Mr Wurzel to have a five per cent whole person impairment as a result of the injury to his lumbar spine. That suggested that the AMS found some degree of discal impairment arising from the work injury and that it was more than a temporary strain. Dr Bentivoglio believed that Mr Wurzel sustained some degree of discal damage at the L4/5 and L5/S1 levels of his lumbar spine in the incident at work;
(d)     on balance, there was an ongoing economic loss arising from the workplace injury and a partial incapacity for employment on the open labour market;
(e)     the parties agreed that Mr Wurzel’s comparable earnings but for his injury were $927.30 per week. Mr Wurzel’s return to work on light duties seemed to increase his low back symptoms;
(f)   Mr Wurzel had transferable skills and sufficient education to move into office or security work. He was capable of working in the “customer service area and as a radio dispatcher and in security though his physical limitations might prevent his working as a cleaner or streetcleaner/labourer”. This would make him capable of earning between $625.00 and $642.00 per week or an average of $633.50 per week. Deducting this average from his comparable earnings gave a difference of $294.00, and
(g) there were no reasons to justify the exercise of the discretion in section 40(1) of the 1987 Act and Mr Wurzel was entitled to an award in the sum of $294.00 per week from 30 July 2009 to date and continuing.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:

(a) finding that Mr Wurzel was partially incapacitated for employment on the open labour market;
(b) failing to make a finding that Mr Wurzel was incapacitated for work as a cleaner/labourer, or, in the alternative, in finding that Mr Wurzel’s physical limitations prevented him from working as a cleaner/labourer;

(c) failing to give any proper reasons as to why Mr Wurzel was prevented from working as a cleaner/labourer;

(d) failing to give any or any proper weight to the evidence from Ms Ellis, Ms Cleland and Dr Mankarios;

(e) failing to give any or any proper reasons as to why Mr Wurzel did not have an ability to earn as a cleaner/labourer, and

(f) failing to exercise the discretion in section 40(1) of the 1987 Act to reduce the difference between probable earnings and Mr Wurzel’s ability to earn.

Essentially, the main issues relate to the nature and extent of Mr Wurzel’s incapacity (not whether an incapacity exists), ability to earn and the exercise of the discretion in section 40(1) of the 1987 Act.

SUBMISSIONS, DISCUSSION AND FINDINGS

Incapacity

It was submitted on behalf of the Council that:
(a)     Ms Cleland assessed Mr Wurzel to be capable of performing his pre-injury duties; therefore, the issue of partial incapacity was an issue to be determined by the Arbitrator;
(b)     in finding that the worker was partially incapacitated, the Arbitrator appears to have placed considerable weight on the Appeal Panel and the decision of the AMS (which was not before her), and
(c)     the Arbitrator considered that the Appeal Panel’s reasons and the reported findings of the AMS were material that corroborated the opinion of Dr Bentivoglio. However, matters certified in a Medical Assessment Certificate (‘MAC’) were not conclusive evidence as to issues other than the issues of permanent impairment. There was no material that allowed an inference to be drawn (as the Arbitrator appears to have done) that the findings of the AMS and the MAC supported a finding of incapacity.
The above submissions are misconceived. They are based on an assumption that the Council disputed incapacity. It didn’t. The section 54 notice issued by the Council on 16 June 2009 merely disputed the quantum of Mr Wurzel’s entitlement to compensation. At no stage has the Council sought leave to dispute incapacity. The notice made it clear that Allianz was reducing payments to $28.99 per week because Mr Wurzel had a capacity to earn $898.31, which was less than his pre-injury wage.
The Council did not terminate payments on the basis that Mr Wurzel had recovered from the effects of his injury or on the basis that his post-injury earning capacity was equal to or greater than comparable earnings in the same or some comparable employment. Therefore, the above submissions are inconsistent with the section 54 notice. That notice defined the issues in dispute and the parties and the Arbitrator conducted the case on the basis of the issues stated.
In any event, whilst Dr Sachdev’s MAC was not in evidence, the Appeal Panel’s decision was. The Appeal Panel reviewed the relevant medical evidence, including Dr Sachdev’s original MAC, and concluded that, contrary to Dr Sachdev’s certification, Mr Wurzel has a permanent five per cent whole person impairment as a result of the injury to his lumbar spine on 10 April 2007. The Arbitrator was perfectly entitled to have regard to that evidence in her assessment of the claim. Whilst the Appeal Panel’s decision was relevant, it did not determine the issues in dispute and the Arbitrator did not treat it as conclusive. The issue in dispute was and is the nature and extent of Mr Wurzel’s incapacity. That issue requires an assessment of Mr Wurzel’s ability to earn and consideration of all of the evidence.

Ability to earn

It was submitted on behalf of the Council that:
(a)     Mr Wurzel was and is capable of earning up to $889.41 per week as a cleaner and the Arbitrator made no finding that he was incapacitated for that work, but merely said that his “physical limitations might prevent his working as a cleaner or a streetcleaner/labourer” (emphasis added);
(b)     the Arbitrator did not give any or any proper weight to the evidence from Ms Ellis and Ms Cleland that Mr Wurzel was fit to work as a cleaner. She failed to state why she did not accept the Council’s evidence, or why she preferred Mr Wurzel’s evidence;
(c)     the Arbitrator should have found Mr Wurzel capable of working as a cleaner and that he had an ability to earn $891.41 per week, as assessed by Ms Cleland;
(d)     the clinical records from Mr Wurzel’s general practitioner, which disclosed no complaint of back pain by Mr Wurzel between September 2008 and December 2009, did not support his claim that he had chronic back pain that prevented him from performing manual work. The entry for 19 January 2009 recorded “does weights at home”, but made no mention of any back symptoms. The entry on 10 December 2009 stated “neck pain after lifting ladder”. These entries tend to suggest that Mr Wurzel has a greater level of physical activity than he was prepared to admit to in his statements. Mr Wurzel has not disputed Ms Cleland’s assertion that he said he was capable of performing his pre-injury work;
(e)     Mr Wurzel has applied for jobs (such as shopfitter/joiner, general hand, process worker, painter and labourer) that would appear to involve a requirement for physical activity inconsistent with the level of restriction he claims to have;
(f)   the film of the worker supports the contention that his level of physical ability is greater than suggested in his statements;
(g) Dr Bentivoglio did not address the functional assessment performed by Ms Ellis, the section 40 assessment by Ms Cleland, the general practitioner’s clinical notes, or the surveillance evidence. In the absence of an up-to-date report from Dr Bentivoglio, his opinion should carry less weight on the question of the worker’s ability to earn than the more recent evidence from Ms Ellis and Ms Cleland;
(h)     Mr Martin considered Mr Wurzel unable to work as a cleaner due to his “profile of abilities”. That profile was based on a questionnaire of physical abilities answered by Mr Wurzel. The information provided by Mr Wurzel was not disclosed in the report, and
(i)   in contrast to Mr Martin, Ms Cleland had regard to the particular requirements of the jobs considered for Mr Wurzel. Mr Martin’s evidence should not have been preferred over the evidence from Ms Cleland and Ms Ellis.
It has been submitted on behalf of Mr Wurzel that:
(a)     the Arbitrator equated street cleaner/labourer duties with the duties Mr Wurzel performed in his pre-injury occupation, and thus not suitable on an ongoing basis;
(b)     the Arbitrator noted that Mr Wurzel’s condition had been activated when he returned to even lighter duties, and it was clear that she did not consider a de facto return to pre-injury employment (in the form of a street cleaner/labourer) was viable or a reasonable assessment of his residual work capacity. In the context of the decision, the Arbitrator was obliged to find what Mr Wurzel could do, not what he could not do;
(c)     the Arbitrator took the view that the cleaning work outlined was essentially the same as Mr Wurzel’s pre-injury duties. She was clearly of the view that those duties were no longer within Mr Wurzel’s physical capacity, and that view was supported by the medical evidence and open to her;
(d)     the Arbitrator clearly felt that Mr Wurzel’s physical limitations post-injury did not render duties as a street cleaner/labourer viable;
(e)     the Arbitrator “had reference to” the Council’s evidence and relied on part of that evidence to determine Mr Wurzel’s ability to earn, and
(f)   the issue was not whether Mr Wurzel had an incapacity, but the “economic degree of incapacity”. Having equated the cleaner/street cleaner/labourer area of work as akin to that which the worker performed before his injury, but was no longer fit to perform, it was apparent that the “viability of a return to such work was never really an issue”. The Arbitrator considered the viability of such work and ruled it out as being incompatible with the injury.

Though I agree that the Arbitrator found that Mr Wurzel was unfit for his pre-injury employment, her reasons for doing so were far from clear. Without expressly saying so, she seems to have accepted Dr Bentivoglio’s evidence that Mr Wurzel would always have to avoid arduous activities or activities that required him to bend or twist. Without dealing with the evidence from Ms Ellis and Ms Cleland, the Arbitrator stated that it seemed to her that “cleaning and street cleaning” would require bending and twisting. The Arbitrator’s statement failed to give due consideration to the other evidence in the case that touched on the nature and extent of Mr Wurzel’s incapacity.
The only other direct reference to Mr Wurzel’s ability to perform his pre-injury duties was the Arbitrator’s statement (at [24] of her decision) that his “physical limitations might prevent his working as a cleaner or streetcleaner/labourer”. This conclusion did not adequately engage the evidence or deal with the issues in dispute. Nor did it indicate an acceptance or rejection of the Council’s case. As a result, the matter must be re-determined. As the Arbitrator heard no oral evidence, I am in as good a position to conduct that re-determination and that is the course I propose to adopt.
As Mr Wurzel has a permanent five per cent whole person impairment as a result of his work injury, Dr Maxwell’s evidence that the injury would have “normally settle in 4–6 weeks” is untenable and I do not accept it. While I accept that Mr Wurzel has continuing symptoms from his back injury, in view of the surveillance evidence (dealt with below), the clinical records from his general practitioner, and the evidence from Ms Ellis and Ms Cleland, I do not accept that those symptoms are as incapacitating as he has claimed or Mr Martin suggested.

In light of the fact that, prior to his injury on 10 April 2007, Mr Wurzel performed his pre-injury duties without any significant time off or restriction, together with the MRI scan evidence of an annular tear and a disc bulge at L5/S1 and a bulge at L4/5, I prefer and accept Dr Bentivoglio’s evidence as to the nature of the injury. That is, I accept that Mr Wurzel aggravated pre-existing degenerative changes in his lumbar spine and sustained “some degree” of discal damage at the L4/5 and L5/S1 levels. Because of his continuing symptoms, I accept that the effect of that aggravation is continuing. The extent of any incapacity resulting from that injury is, however, another matter.
It is significant, but not determinative, that Mr Wurzel attended on his general practitioner on several occasions between June 2008 and December 2009 but did not mention any back symptoms until 15 December 2009. The reference on that day to “back pain again” suggested that Mr Wurzel’s symptoms had not been significant in the period up to 15 December. I do not accept that it indicated that his condition had resolved. I place no weight on the entry referring to neck pain after lifting a ladder. Without more, that reference is of no probative value. Similarly, I place no weight on the entry on 19 January 2009 that stated that Mr Wurzel did weights at home. That Mr Wurzel did exercises at home is of no consequence. Regular exercise was an important part of Mr Wurzel’s rehabilitation.

The question of whether Mr Wurzel is fit for his pre-injury duties is not straightforward and, in any event, not determinative. The only detailed description of Mr Wurzel’s pre-injury duties is in Ms Cleland’s report. According to her evidence, not challenged by Mr Wurzel, those duties required him to push/pull a buggy weighing up to 5 kg when full, pick up litter weighing 1–2 kg, collect leaves and mulch using a broom and shovel, and clean toilets. In the absence of any evidence from Mr Wurzel disputing this summary, I accept Ms Cleland’s description. In my view, these duties could not be described as heavy or arduous, or even “medium”, and, even if they did require some bending and twisting, they were, subject to the comments I make below about hours, within the general restrictions set by Dr Mankarios.
I have not found Dr Bentivoglio’s evidence helpful and I place little weight on it. It is unclear if he knew exactly what was involved in Mr Wurzel’s pre-injury duties. Those duties were light and Dr Bentivoglio did not explain why Mr Wurzel was unable to return to them. It may be that he assumed that, contrary to the evidence, the pre-injury duties involved heavy or arduous activities. They didn’t. He expressed no comment on the film. Last, he has not examined Mr Wurzel for nearly three years.
The Council has placed great weight on Ms Cleland’s history that Mr Wurzel said he could do his pre-injury job. Mr Wurzel has not disputed the accuracy of that history and it is obviously relevant and entitled to consideration. However, even accepting that history, it does not lead to the result contended for by the Council. I must determine Mr Wurzel’s ability to earn in the labour market reasonably accessible to him (Steggles Pty Ltd v Aguirre (1988) 12 NSWLR 693). Even if he were completely fit for his pre-injury job, that would not necessarily prevent him from recovering an award (Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81). In any event, Ms Cleland also recorded that Mr Wurzel worked in teams at the Council and, if he got into difficulty, he could seek assistance. Further, Mr Wurzel’s pre-injury duties required him to work much longer than a normal 38-hour week and he has only been certified fit for normal hours. For these reasons, I do not accept that Mr Wurzel is fit for his pre-injury employment and, even if he was, that would not be determinative of his entitlement to weekly compensation.
In assessing the evidence as to Mr Wurzel’s capacity, I have had regard to the film tendered in evidence, which showed Mr Wurzel bending from the waist on several occasions while weeding a garden bed on 15 January 2010. He also bent on other occasions on the same day to pick up litter. He appeared to bend freely from the waist (at least 90 degrees) on several occasions, hold that position for sustained periods (up to 70 seconds on one occasion) and then return to the upright position in one easy fluid motion. If he had difficulty performing those tasks, it was not apparent from his movements in the film.

Mr Wurzel gave no evidence in response to the film. In light of the full range of movements demonstrated in the film, I do not unreservedly accept his evidence as to the nature and extent of his restrictions and incapacity and I do not accept Mr Martin’s conclusion that Mr Wurzel is only fit for work as a crossing supervisor, or some similar work. He is demonstrably able to bend freely from the waist, hold that position for sustained periods, and then straighten without difficulty. Mr Martin’s evidence is further undermined because it was based on a questionnaire completed by Mr Wurzel (which is not in evidence), rather than any objective testing.
On the other hand, I do not accept Ms Cleland’s assertion that Mr Wurzel is capable of earning $898.31 per week as a cleaner. Ms Cleland initially assessed Mr Wurzel to be capable of performing work “comparable” to that of a cleaner. She added that, due to the nature of such work, each position would need to be assessed individually. Nevertheless, she felt that he was fit to perform the “majority of cleaning jobs” and noted the “base rate” for such work to be $748.60 under the Local Government Enterprise Agreement, though the general wage rates for such work were between $769.00 and $865.00.
Though Ms Cleland thought Mr Wurzel was fit for his normal pre-injury duties, she failed to take into account that those duties were for much longer than a normal working week and that Mr Wurzel had only been certified fit for “normal full-time hours” (emphasis added) by Ms Ellis and to “Try 8 HR days 5 days a week” by Dr Mankarios. Ms Cleland failed to consider Mr Wurzel’s ability to work his pre-injury hours. On the available evidence, I do not believe he is fit for work for more than normal full-time hours.
I accept that cleaning jobs would allow Mr Wurzel to move around the workplace, as opposed to standing for prolonged periods in one position. Given this flexibility, the light weights involved, and the modest nature of Mr Wurzel’s restrictions (as confirmed in the film), I find that he is capable of working a 38-hour week in light cleaning work. I accept Ms Cleland’s evidence that the labour market within a 30 to 60 minute travel radius of Mr Wurzel’s home is “good”. He is also capable of working in process work and, given his past experience in the real estate industry, he is capable of working in that field or in a clerical capacity. However, I accept that job prospects in real estate and for clerical work will not be as strong for Mr Wurzel as other workers because he has not worked in that field for many years.

Having regard to the matters in section 43A of the 1987 Act, namely, Mr Wurzel’s age (45), the nature of his incapacity (fit for full-time medium work), his pre-injury employment (cleaner/labourer/real estate), his education and work experience (Higher School Certificate with TAFE training in real estate), his place of residence (Loftus in southern Sydney), the restrictions in his medical certificate (lifting up to 10 kg for normal hours), the provision of any injury management plan (none in evidence), and the length of time that Mr Wurzel has been out of work (three years), I find that Mr Wurzel is able to earn in some suitable full-time cleaning work the sum of $769.00 per week, being the lower end of the range provided by Ms Cleland at [47] above.
Deducting $769.00 from the agreed comparable earnings of $927.00 gives a difference of $158.00.

Section 40 discretion

It has been submitted on behalf of the Council that, as Mr Wurzel had not regained his licence because of his failure to attend to the payment of unpaid traffic fines, and as the lack of his licence was an impediment to his prospects of obtaining employment, the discretion should be used to reduce the difference between probable earnings but for the injury and Mr Wurzel’s ability to earn. The Council referred to Dickson v Olympic Aluminium Co Pty Ltd [2007] NSWWCCPD 96 (‘Dickson’) as authority that the worker carries the onus of proof with regard to the exercise of the discretion.

There is no doubt that, in a primary application for weekly compensation, the worker bears the legal and evidentiary burden of proof (Work Social Club – Katherine Inc v Rozycki (1998) 120 NTR 9 citing J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625). However, once a worker has established that comparable earnings exceed his or her ability to earn, the evidentiary burden shifts to the employer to lead evidence as to why, in the exercise of the discretion, that difference should be reduced. Nothing in Dickson suggests the contrary or provides any support for the submission made on behalf of the Council. Dickson did not deal with the exercise of the discretion.
I have assessed Mr Wurzel’s ability to earn on the basis that he will be able to find suitable employment regardless of whether he has a driver’s licence or not. If he chooses not to renew his licence, his ability to earn remains the same.
The Council has not repeated on appeal the further points it argued before the Arbitrator on this issue and I assume that it has decided not to press them on appeal. For completeness, however, I add that I do not believe there is any other reason that justifies the exercise of the discretion in this matter. Whether Mr Wurzel has been diligent in seeking employment is not a discretionary factor (Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526). His ability to earn remains as I have determined whether he is looking for that work or not.
In view of the scant and unsatisfactory evidence of the work Mr Wurzel performed for the Council between his injury and the termination of his employment, and the lack of evidence of the wage he was paid in that period, or would have been paid had his employment not been terminated, and the lack of evidence as to his prospects generally with the Council, it is impossible to determine the impact, if any, of his dismissal on his claim. In the circumstances, I do not believe the termination of Mr Wurzel’s employment is a proper ground for the exercise of the discretion.
The last point argued under this heading was that there should be a reduction in the amount payable to Mr Wurzel because, as a result of the presence of degenerative changes in his spine, he was always at risk of being rendered unfit for his pre-injury work. There is no evidence to support this submission and I do not accept it.
It follows that there is no basis for reducing the figure of $158.00 in the exercise of the section 40(1) discretion.

CONCLUSION

Having conducted a review on the merits, I have determined that, at all relevant times since 30 July 2009, Mr Wurzel was and is partially incapacitated for work and that he is entitled to an award of weekly compensation under section 40 of the 1987 Act in the sum of $158.00 per week to date and continuing.

DECISION

Paragraph 1 of the Arbitrator’s determination of 6 April 2010, as amended on 3 May 2010, is revoked and the following order made in its place:

“1. The respondent employer is to pay the applicant worker weekly compensation in the sum of $158.00 per week under section 40 of the Workers Compensation Act 1987 from 30 July 2009 to date and continuing.”

Paragraph 2 of the Arbitrator’s determination is confirmed.

COSTS

Though the award in favour of the worker has been reduced, the Council has failed to obtain the relief it sought, namely, a reduction in the award to $28.99 per week. In these circumstances, the appropriate order is that the appellant employer pay the respondent worker’s costs of the appeal.

Bill Roche
Deputy President

27 July 2010

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE