Tisdell v M M Latimore Pty Ltd
[2022] NSWPIC 172
•19 April 2022
| DECISION OF PRESIDENT’S DELEGATE | |
CITATION: | Tisdell v M M Latimore Pty Ltd [2022] NSWPIC 172 |
| APPLICANT: | Troy Andrew Tisdell |
| RESPONDENT: | M M Latimore Pty Ltd |
| PRESIDENT’S DELEGATE: | Kathryn Camp |
| DATE OF DECISION: | 19 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Work capacity dispute; whether the applicant has “no current work capacity”; clause 9 of Schedule 3 of the Workers Compensation Act 1987 (1987 Act); whether the applicant is able to work in “suitable employment”; s 32A of the 1987 Act; whether the applicant has “no current work capacity and likely to continue indefinitely to have no current work capacity”; section 38(2) of the 1987 Act; absence of medical evidence in support; Held – the applicant failed to demonstrate that he has no current work capacity; evidence demonstrated that the applicant is able to work in suitable employment; applicant’s claim for compensation declined. |
| DETERMINATIONS MADE: | 1. The application for an interim payment direction is declined. |
STATEMENT OF REASONS
INTRODUCTION
This matter concerns a dispute relating to a Work Capacity Decision which determined that the worker’s entitlement to weekly payments of compensation would cease for reason that he is able to undertake “suitable employment” within the meaning of that phrase under s 32A of the Workers Compensation Act 1987 (the 1987 Act). It also concerns the application of s 38(2) of the 1987 Act and whether the applicant has “no current work capacity and likely to continue indefinitely to have no current work capacity”. For the reasons discussed below, the worker’s claim for compensation is unsuccessful.
BACKGROUND
The applicant worker, Troy Andrew Tisdell, sustained an accepted injury to his right leg in the course of his employment with the respondent, M M Latimore Pty Ltd, as a crane operator.
The respondent accepted the applicant’s injury and made payments of compensation, including weekly payments of compensation.
On 13 October 2021, the respondent’s insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to the applicant that his weekly payments would cease on 24 January 2022. The reason for this decision was based on a finding that the applicant was able to return to suitable employment 30 hours per week as an accounts clerk. This decision constituted a work capacity decision.
On 19 January 2022, the applicant lodged an Application for Expedited Assessment (Form 1) (Application) claiming weekly benefits where a work capacity decision is in dispute.
On 21 January 2022, the respondent lodged a Reply to the Application.
On 17 February 2022, the applicant lodged an Application to Admit Late Documents (AALD).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)
I convened a telephone conference to resolve the dispute. The applicant attended the telephone conference, with his solicitor Mr Grant Avery of Stacks Law Firm. The respondent was represented by its solicitor Mr Nathan Buyers of Turks Legal.
During the telephone conference I made an interlocutory decision that the AALD would be admitted into the proceedings. The reasons for that decision were provided orally to the parties.
The parties were unable to reach a resolution of the dispute and provided oral submissions during the telephone conference. The parties were informed of my intention to determine the dispute following the telephone conference.
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 to bring the parties to the dispute to a settlement. 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
The parties agreed, during the telephone conference, that the following issues remained in dispute:
(a) Whether the Commission has jurisdiction to determine the dispute under s 38 of the 1987 Act?
(b) The applicant’s current physical capacity, having regard to the recent medical certificates of capacity.
(c) Whether the role of account clerk or payroll clerk is “suitable employment” under s 32A of the 1987 Act?
There was no dispute as to the following matters:
(a) the applicant’s pre-injury average weekly earnings is $895 per week;
(b) the applicant has been paid over 218 weeks of weekly payments of compensation, having reached 130 weeks in 2019. The dispute concerning the applicant’s entitlement to weekly payments is to be determined under s 38 of the 1987 Act, and
(c) the applicant is not a worker of high needs within the meaning of the 1987 Act.
EVIDENCE
The following documents were in evidence before me and have been considered in determining this dispute:
(a) Application, and attached documents;
(b) Reply, and attached documents, and
(c) AALD, and attached documents.
Applicant’s statement
In evidence are three statements by the applicant, dated 7 July 2017, 25 February 2020 and 17 January 2022.
In his statement, dated 25 February 2020, the applicant provided a summary of his employment history. The applicant worked as a Senior Moulding Technician for several years, managed a tyre fitting business, and most recently worked as a crane operator. The applicant also provided a summary of the medical treatment undertaken in relation to the accepted injury, including surgery to repair fractures in his right leg, treatment arising from complications from surgery, further surgery to remove the external fixation device and open reduction and internal fixation of his right tibia and fibula on or around May 2017.
The applicant also states that, on 27 August 2018, he commenced a graded return to work trial with Taree and Coastal Crane Services working 15 hours per week. He states that he was working in the workshop painting and cleaning crane equipment, and that he found the “need to be on [his] feet for long periods aggravated [his] right ankle pain and swelling”.
The applicant further states that he is attending Taree TAFE studying for a Certificate IV in Accounting and Book Keeping. He successfully completed a Certificate III in Accounting and Book Keeping. He adds that he is “hoping to be able to retrain into more appropriate sedentary employment.” He further adds that he is presently certified fit for 24 hours a week of suitable employment and notes a list of continuing disabilities.
In his further statement of 17 January 2022, the applicant states that he has undergone two surgical procedures. Namely, on 5 June 2020, the applicant underwent right ankle fusion surgery and, on 4 June 2021, he underwent further surgery to remove internal fixation screws, at the hand of Dr O’Sullivan.
The applicant states that he is due to undergo a further review with Dr O’Sullivan on 11 March 2022. He states that he relies on daily pain medication, mainly Panadol, but with Panadeine Forte when the pain is “unbearable”.
The applicant further states that he completed a six week work experience trial with the Midcoast Council in April/May 2021, working four hours per day, five days per week which was increased to six hours per day, five days per week in the last two weeks. He adds that he noticed a “significant increase in the amount of pain [he] was experiencing at night time, following a six hour day at work.” He further adds that during the work trial he was undertaking “various clerical activities, including working as a payroll clerk.”
The applicant also states that he has been applying for positions with the assistance of his rehabilitation provider but has not been successful so far. He applied for two jobs and was unsuccessful. He considers that he has not been successful in the applications for clerical positions because of his “total lack of experience in sedentary or office-based occupations” and educational qualifications. He said that he planned to apply for a Finance Assistant role which was recently advertised, but was unsure how he would cope with full-time work given the present levels of pain in his right leg.
Medical evidence
Dr Aung Kyaw Win
In evidence are several certificates of capacity issued by the applicant’s treating general practitioner. Those certificates indicate that the applicant has had capacity for some type of employment from September 2020, with restrictions.
On 3 August 2021, Dr Win approved the vocational option of an accounts clerk and payroll clerk were physically suitable to the applicant.
On 23 November 2021, Dr Win, certified the applicant with capacity for some type of employment from 23 November 2021 to 18 January 2022, six hours per day, five days per week, with restrictions.
The applicant’s capacity was then downgraded. On 18 January 2022, Dr Win, certified the applicant with capacity for some type of employment from 18 January 2022 to 15 February 2022 for four hours per day, three days per week with restrictions.
On 15 February 2022, Dr Win, certified the applicant again with capacity for some type of employment from 15 February 2022 to 2 March 2022 for four hours per day, three days per week with restrictions. Relevantly, in that certificate, Dr Win records the applicant’s restrictions to include lifting/carrying/pushing/pulling at 10kg, nil bending/twisting/squatting ability, and less than five mins standing tolerance. The applicant had no sitting or driving restrictions. Under the heading “Comments”, Dr Win recorded “[s]edentary occupation only”. It also records that “…as per the request by [the applicant] and as per Dr Low’s recommendations, [the applicant’s] working hours were reduced down to 12 hours per week.” It further added that the applicant is “not feeling better and his level of discomfort worse”.
Dr James O’Sullivan
In evidence are several reports by the applicant’s treating surgeon Dr O’Sullivan, orthopaedic surgeon. These reports confirm the medical surgical procedures the applicant underwent at the hand of Dr O’Sullivan and related treatment.
In a report, dated 24 September 2021, Dr Sullivan records that it is over three months since the removal of hardware from his right ankle fusion. He notes that the applicant is “still swollen and uncomfortable at night”. He also records that he is keen to see if he improves with time.
Dr Murray Hyde Page
On 15 April 2020, Dr Murray Hyde Page, orthopaedic surgeon qualified by the applicant, issued a report. Dr Hyde Page stated that the applicant will never be fit to return to his pre-injury employment as a crane driver, noting the physical tasks involved, and, for this reason, the applicant is “retraining for a sedentary job”.
On 27 January 2021, Dr Hyde Page issued a further report. In that report, Dr Hyde Page recorded the applicant’s limited walking and standing ability which limited his ability to do moderate to heavy domestic indoor and outdoor tasks. He added that the applicant had now reached maximum medical improvement and assessed the applicant at 23% whole person impairment in respect of the right lower extremity and scarring, but said there could be a slight change if surgery is undertaken in mid-2021 to remove the plate and screws in the right leg.
Dr Sean Low
On 6 December 2021, Dr Sean Low, occupational physician qualified by the applicant, issued a report. Dr Low recorded ongoing pain affecting the applicant’s right foot, which is exacerbated through all weightbearing activities. He records that the applicant states he is able to perform some domestic duties. In terms of work capacity, Dr Low records that the applicant is unable to return to his pre-injury role. He notes that the applicant underwent a six-week trial return to work as a payroll clerk performing office-based duties in April 2021 but has been unable to return to other gainful employment since.
Dr Low records:
“In terms of work capacity, I consider that Ms Tisdell will remain permanently precluded from returning to his pre-injury role working as a crane operator, I consider that secondary to the injury sustained he would be unable to tolerate any meaningful degree of weightbearing through his right foot essentially confining him to seated duties only. He would be unfit to perform any degree of manual handling and would be unable to operate any machinery that would require the input of his feet.
With respect to his current work capacity, Mr Tisdell is essentially confined to working reduced hours performing office-based duties only. Within a sedentary-based environment he would require allowance that would reduce his need to commute. He would benefit from the ability to alternate his posture as required, take regular breaks to manage his symptoms and be provided duties that allow him to self-pace.
Overall, I consider that he would only be able to tolerate reduced hours. He has ongoing pain symptoms that deteriorate throughout the day that would preclude him from working longer hours. I consider that a reasonable return to work goal would be that of 12 hours a week working every alternate day.”
Dr Low stated that he had reviewed the respondent’s vocational assessment, where it was identified that the applicant may have work capacity as an accounts clerk or payroll clerk. Dr Low stated that from a “physical point of view [the applicant] would be fit to undertake the physical requirements of an office-based role however, [he did] not consider that he would be fit to work more than 12 hours for reasons as outlined above”.
Vocational assessment material
In evidence is a Labour Market Review report, dated 3 August 2021, prepared by Mayo Injury Management qualified by the respondent. This report set out the roles of accounts clerk and payroll and the inherent requirements of those roles. It also identifies those roles as suitable vocational options for the applicant.
In respect of the account clerk role, three potential employers were contacted. The first and third of the three potential employers contacted indicated that the role is full-time and would require someone available for full time hours, and the second indicated that the role is part-time two to three days per week and the hours could be negotiated. The first potential employer indicated that a Certificate III in Business Administration was preferred but not essential, and a minimum of four years’ experience in Bookkeeping/administration was required. However, the second and third potential employers indicated that no formal qualifications were required for the role. The functional requirements of each role with the potential employers identified to be compatible with the applicant’s physical restrictions.
RELEVANT LAW
The present dispute concerns the applicant’s work capacity and ongoing payments of weekly compensation. The dispute is governed by the Commission’s expedited assessment procedure under Pt 5 of the 1998 Act. In particular, s 297(1) of the 1998 Act provides that an interim payment direction may be issued for the payment of weekly payments of compensation.
A dispute concerning a worker’s work capacity requires consideration of whether the worker has “current work capacity” or “no current work capacity” for “suitable employment” within the meaning of those phrases under the 1987 Act. The meaning of these phrases has been interpreted and applied in many decisions, and, in particular, Wollongong Nursing Home Pty Ltd v Dewar[1].
[1] [2014] NSWCCPD 55.
“Current work capacity” and “no current work capacity” is defined under cl 9 of Sch 3 of the 1987 Act as follows:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
“Suitable employment” is defined under s 32A of the 1987 Act as follows:
“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.”
It is not disputed that the applicant’s entitlement to weekly payments of compensation falls under s 38 of the 1987 Act. Relevantly, s 38(1)-(3) 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.”
SUBMISSIONS AND DISCUSSION
The applicant and respondent provided oral submissions during the telephone conference which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.
Part-way through the recorded telephone conference the applicant properly conceded that the matter turns on the application of s 38(2) of the 1987 Act, and did not concern the application of s 38(3) of the 1987 Act. That is because the applicant was unable to satisfy the preconditions of s 38(3) as there was no evidence that he had returned to work for a period of not less than 15 hours and in receipt of current weekly earnings of at least $155 per week. During the telephone conference, the following was exchange was recorded:
“Applicant’s solicitor: Well, the way I see it, this is a s (2) case, sub-section (2) case. I think the point that this case has been run on and for the reasons I did mention before about the practical application of the medical certificate.
Delegate: Just to clarify, [applicant’s solicitor], you are now pressing that the dispute is limited a narrow compass to the application of s 38(2). That is, because of the concession made under s 38(3).
Applicant’s solicitor: I think that is right. I think that is what I have been saying all along, what I mention before our big break, that s 38(2) was a point that we were making in relation to this application. Yes.
Delegate: Thank you for that clarification, confirming that the applicant’s case is under s 38(2) and the Commission’s jurisdiction under that subsection.”
As a result of the applicant’s concession, the submissions made by the parties regarding the application of s 38(3) of the 1987 Act to the present matter are of no relevance.
Whether the Commission has jurisdiction to determine the dispute under s 38 of the 1987 Act?
Submissions
The applicant submits that the Commission has jurisdiction to determine the dispute under s 38 of the 1987 Act. The case is that “under s 38 the worker has provided medical evidence that he is unfit for work”.
The applicant conceded that the s 78 notice deals with s 38 of the 1987 Act.
The respondent submitted that if the s 78 notice deals with the application of s 38 of the 1987 Act, which it asserted it did, then the Commission would have jurisdiction to determine the matter under s 38 of the 1987 Act.
Consideration
There have been several recent decisions concerning the Commission’s jurisdiction to determine a worker’s entitlement to weekly payments of compensation under s 38 of the 1987 Act.[2] These decisions confirm that the Commission has the jurisdiction set out in s 105 of the 1998 Act together with “such powers which are incidental and necessary to the exercise of its statutory jurisdiction.”[3] They also confirm that the amendments introduced by the Workers Compensation Legislation Amendment Act 2018 regarding work capacity disputes serve to reinforce the Commission’s broad jurisdiction.[4] These decisions further confirm that the Commission has jurisdiction to make a preliminary finding that it is satisfied that a worker falls within s 38(2) or (3) of the 1987 Act and determine whether the worker has an entitlement to weekly compensation beyond the second entitlement period (beyond 130 weeks).
[2] Darcy v P & T Formworking & Welding Pty Ltd [2020] NSWWCC 233; Roberts v University of Sydney [2021] NSW WCC 25; Dickson v Zurich Financial Services Australia Limited [2022] NSWPIC 22; Chea v Woolworths Group Limited [2022] NSWPIC 26 (Chea); Holmes v Central Coast Council [2022] NSWPIC 70.
[3] Raniere Nominees Pty Limited v Daley [2006] NSWCA 235, [66]; Roberts, [65].
[4] See Roberts, [55]-[56].
To this end, I adopt and agree with the reasoning of Arbitrator Harris, as he then was, in the decision in Roberts, where he stated:
“Whilst the wording of s 38 refers to an insurer deciding the matter, the issue is whether a worker can contest the insurer’s decision before the Commission. Despite the reference to the matters in s 38 being decided by an insurer, in my view, the broad jurisdiction of the Commission under s 105 of the 1998 Act to ‘hear and determine all matters arising under’ the 1987 Act and the 1998 Act encompass jurisdiction and power within the Commission to hear disputes regarding a worker’s entitlement under s 38.
…
It would be an absurd construction that, following the 2018 amendments, a worker has no right to contest an insurer’s decision concerning the entitlement to weekly compensation pursuant to s 38 of the 1987 Act.
…
Finally, whilst the respondent’s submission is probably correct that the Commission cannot make declarations in the absence of making orders, that does not mean that the Commission cannot make findings incidental to its power of making orders in accordance with relief sought under the 1987 Act. That observation is consistent with the discussion in Raniere where Santow JA stated that the Commission had ‘only such powers which are incidental and necessary to the exercise of its statutory jurisdiction.’
Consistent with these powers is the ability to make findings incidental to an order that a worker has satisfied the statutory preconditions in s 38(3). The Commission can make a preliminary finding that it is satisfied that a worker falls within either s 38(2) (has no current work capacity) or s 38(3) (has current work capacity), and if the latter, satisfies the conditions set out in s 38(3)(a), (b) and (c). Whilst the section refers to the insurer deciding the issue, when that becomes a dispute between the parties, it is then within the jurisdiction of the Commission to determine whether the worker has satisfied the various statutory preconditions in s 38(3) of the 1987 Act.
For these Reasons, the respondent’s submission that the Commission lacks jurisdiction to order weekly compensation pursuant to s 38 of the 1987 Act after the second entitlement period is inconsistent with binding Court of Appeal authority and is rejected.”[5] (footnotes omitted)
[5] Roberts, [60]-[67].
It is not disputed that the insurer’s decision regarding the applicant’s entitlement to compensation under s 38 of the 1987 Act is an issue in dispute. Therefore, applying the above case law, the Commission has jurisdiction to determine whether the applicant has an entitlement to compensation under s 38.
Application of s 38(2) of the 1987 Act
The applicant’s current physical capacity, having regard to the recent medical certificates of capacity
Whether the role of account clerk or payroll clerk is “suitable employment” under s 32A of the 1987 Act?
Submissions
The applicant submits that the totality of the medical evidence must be considered. The applicant did not refer to any specific evidence, however, asserted that his “limitations are effectively so severe it has the impact of having total incapacity”. The applicant also submits that I need to “look at the latest medical certificate” and noted that he “has undergone a procedure last year in relation to his leg” and that it is a serious condition going on for some 4.5 years.
The applicant further submits that I need to take a “practical approach” with a view of his “realistic capacity in a more practical sense”. The particular jobs asserted by the respondent to be suitable fall outside areas where he has expertise or fitness to do them. In respect of the accounts clerk role, the applicant does not have formal qualifications or experience to undertake the role. In addition, the jobs in the labour market report are for people working full-time, not someone part-time with restrictions.
The applicant contends that the word “indefinitely” used in s 38(2) means “indefinable not indefinitely meaning for the rest of one’s working life”.
The applicant adds that it is clear that his treatment phase is continuing, as he is due to see an orthopaedic surgeon “in the future and possible further treatment”. The effect of this is, the applicant asserts, that he has no current work capacity. The applicant further submits that his statement evidence made two years ago should be disregarded, and that on a proper assessment he has no current work capacity.
The respondent submits that on the available medical evidence the applicant has physical capacity for some work. The applicant’s treating general practitioner and independent medical expert indicated that the applicant has physical capacity for some work. The respondent asserts that the evidence indicating the applicant has capacity for 30 hours per week for some type of work should be preferred, and at the very least, it is not in question that the applicant has capacity for at least 12 hours per week. The respondent adds that the applicant, in his statement, states that he is presently fit for suitable employment and hoping to retrain in more suitable sedentary employment.
The respondent asserts that the applicant must establish that he has no capacity for work and for the foreseeable future. All the available evidence suggests that the applicant has capacity to work at least 12 hours at this time. It follows, the respondent asserts, that the applicant has capacity into the future.
The respondent refers to the applicant’s experience and notes that he completed a Certificate III in Accounting and Book Keeping, and is undergoing study to complete a Certificate IV. The respondent also notes that the applicant has only applied for two positions, and while he was unsuccessful for those roles the labour market assessment report indicates that three potential employers were contacted and overall it was considered that the applicant was suitable for the role of accounts clerk.
The respondent further notes that the Dr Win provided a graduated upgrade of the applicant’s capacity to 30 hours per week before downgrading it to 12 hours per week in January 2022.
Consideration
The applicant bears the onus of proof on the balance of probabilities.[6] In order for the applicant to succeed in the present matter he must demonstrate that he satisfies s 38(2) of the 1987 Act. In particular, the applicant must demonstrate that he has “no current work capacity and likely to continue indefinitely to have no current work capacity”.
[6] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, [44]-[55] (per McDougall J, McColl and Bell JJA (as their Honours then were) agreeing); Chen v State of New South Wales (No 2) [2016] NSWCA 292, [33]-[34] (per Leeming JA, McColl JA agreeing).
No current work capacity
“No current work capacity” is defined under cl 9(2) of Sch 3 of the 1987 Act to mean “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”. It is not disputed that the applicant is unable to return to his pre-injury employment. However, it is disputed that the applicant is able to return to work in suitable employment. “Suitable employment” is defined under s 32A of the 1987 Act as employment in work for which the worker is currently suited having regard to certain factors (see above [39]-[40]).
The evidence overwhelmingly provides that the applicant has some capacity to work. I do not accept the applicant’s submission that his “limitations are effectively so severe it has the impact of having total incapacity.” While it is accepted that the applicant has undergone several medical procedures on his right leg and has had treatment for ongoing symptoms, the evidence demonstrates that despite the applicant’s condition he has a residual capacity to undertake some type of suitable employment.
Dr Win, Dr Hyde Page and Dr Low all indicate that the applicant has some capacity for suitable employment.
The available evidence indicates that Dr Win considered that the applicant had capacity for some type of suitable employment from 23 November 2021, with restrictions. The applicant’s capacity was downgraded from 18 January 2022 to four hours per day, three days per week with restrictions. Recently, on 15 February 2022, Dr Win certified the applicant with capacity for four hours per day, three days per week with restrictions which are set out above at [27].
Dr Hyde Page considered that the applicant would never be fit to return to his pre-injury employment as a crane driver and that it was for this reason he was retraining for a sedentary job. Dr Hyde Page also considered that the applicant had limited walking and standing ability and was limited in his ability to undertake moderate to heavy domestic tasks. However, he considered that the applicant had reached maximum medical improvement.
Dr Low also considered that the applicant would be unable to return to his pre-injury employment as a crane operator. He considered that the applicant would only be able to undertake reduced hours performing office duties within a sedentary-based environment, because of ongoing pain in his right foot which was exacerbated through all weightbearing activities. Dr Low added that the applicant would benefit from the ability to alternate his posture and take regular breaks to manage his symptoms. He concluded that he considered that “a reasonable return to work goal would be that of 12 hours a week working every alternate day.”
The above medical evidence is consistent with the applicant’s statement evidence, regarding his capacity for some type of employment and intention to return to some type of employment. The applicant’s statement evidence demonstrates that the applicant has undertaken work trials, the most recent in May 2021 in a payroll clerk role. It also demonstrates that the applicant completed a Certificate III in Accounting and Book Keeping, and is studying to complete a Certificate IV. It further demonstrates that the applicant has attempted to return to work, having applied for two clerical positions.
The applicant’s submission that he has “total incapacity” was made in the absence of any direct reference to evidence in support. There is no medical evidence that indicates that the applicant’s condition renders him totally unfit for any type of employment. The medical evidence is to the contrary. That is, it is consistent in that it provides that the applicant has some capacity for suitable employment four hours per day, three days per week with restrictions. In particular, this is demonstrated by Dr Win’s recent medical certificate dated 15 February 2022 and Dr Low’s report of 6 December 2021. The medical evidence clearly demonstrates that the applicant has some degree of capacity to undertake suitable employment.
The applicant did not explain why the above evidence should be discounted or disregarded. Indeed, the applicant’s own statement evidence is inconsistent with the submission that he has no current work capacity. In this regard, I note that the applicant’s statement evidence indicates that he has undergone work trials and made attempts to return to work in administrative roles.
The applicant’s bare assertion that his limitations are “effectively so severe it has the impact of having total incapacity” without properly qualified expert medical evidence does not support a conclusion that the applicant has no current work capacity. Nor does it support a conclusion that the applicant has no current work capacity and likely to continue indefinitely to have no current work capacity under s 38(2) of the 1987 Act for that sub-section to be engaged and an award to be made for weekly payments under s 38.
To the extent that the applicant purports to argue that he has no current work capacity for reason that the vocational roles are not “suitable employment” options within the meaning of that phrase under s 32A of the 1987 Act, I make the following findings.
Accounts Clerk
Nature of the worker’s incapacity
The nature of the worker’s incapacity and the details provided in medical information has been considered. The evidence, set out and discussed above, does not demonstrate that the functional requirements of the role of accounts clerk are incompatible with the applicant’s current physical restrictions. Firstly, on 3 August 2021, Dr Win certified that the vocational option of accounts clerk was physically suitable to the applicant. Secondly, Dr Low, in his report of 6 December 2021, indicated that he had reviewed the vocational assessment which identified the role of an accounts clerk as suitable and he assessed that the applicant would be “fit to undertake the physical requirements of an office-based role” working 12 hours per week. Thirdly, the vocational evidence indicates that the applicant’s restrictions are not incompatible with the functional requirements of the role. Fourthly, one of the potential employers identified in the vocational evidence indicated that the applicant was suited to the role and that part-time work was available, with hours that could be negotiated.
That the applicant is due to see an orthopaedic surgeon in the future and may undergo possible further treatment, in the absence of any evidence in support, does not demonstrate that the applicant has no current capacity for suitable employment. Indeed, there is no specific evidence indicating why the applicant is attending an orthopaedic surgeon or how that or any future treatment might impact an assessment of his capacity for suitable employment.
Having regard to the available evidence, set out and discussed above, I am not persuaded that the role of accounts clerk is not suitable employment for reason of the applicant’s physical capacity.
Age, education, skills and work experience
The evidence supports that the applicant’s age, education, skills and work experience is not a barrier to his return to suitable employment.
The only barrier raised in submissions by the applicant concerned the applicant’s qualifications, skills and work experience. While the applicant’s work experience in clerical roles is limited to the work trials he recently undertook, for the following reasons, that does not appear to be an impediment to the applicant being considered suitable for the role of accounts clerk. Firstly, the applicant has undertaken study to enhance his skills. Secondly, the applicant has a Certificate III in Accounting and Book Keeping and is undertaking steps to complete a Certificate IV. Thirdly, the only available vocational evidence provides that the applicant is suited to the role of accounts clerk. Fourthly, the vocational evidence demonstrates that two of three potential employers indicated that no formal qualifications (or education) were required for the role. Lastly, the uncontradicted vocational evidence indicates that the role of accounts clerk is suitable employment.
That the applicant has been unsuccessful in the two roles he has applied for, in the absence of evidence in support to explain why he was unsuccessful, does not demonstrate that the role of accounts clerk is not suitable employment under s 32A of the 1987 Act.
The evidence concerning the applicant’s age, education, skills and work experience supports the role of accounts clerk being suitable employment.
Any plan or document prepared as part of the return to work planning process
There is no return to work plan or document in evidence that suggests that further steps need to be undertaken in order for the role of account clerk to be considered suitable employment under s 32A of the 1987 Act.
Any occupational rehabilitation services
There is no evidence that indicates that the applicant needs to undergo or plans to undergo any occupational rehabilitation service in order for the role of account clerk to be considered suitable employment under s 32A of the 1987 Act.
Suitable employment
Having regard to the above factors, I am not satisfied that the role accounts clerk is not “suitable employment” within the meaning of that phrase under s 32A of the 1987 Act. It follows, that I do not accept that the applicant has “no current work capacity” for reason that the role of accounts clerk is not suitable employment. Accordingly, it is not necessary that I determine whether the role of payroll officer is suitable employment.
Likely to continue indefinitely to have no current work capacity
As I have found that the applicant does not have “no current work capacity” it is not necessary that I determine what “indefinitely” means in s 38(2) of the 1987 Act. That is, it is not necessary that I consider whether the second limb of s 38(2), namely, that whether the applicant has no current work capacity and “likely to continue indefinitely to have no current work capacity”. However, I make the following observations.
In Chea, Member McDonald considered the application of s 38(2) of the 1987 Act. Member McDonald considered the phrase “likely to continue indefinitely” in s 38(2) to be a matter to be determined on the facts. In that case, Member McDonald found that the worker’s reluctance to undergo surgery was sufficient to satisfy the requirement of no current work capacity which is likely to continue indefinitely.
In the present matter, there is no evidence that indicates that the applicant is to undergo further treatment or what that treatment would be and how this may alter his current capacity. The evidence demonstrates that the applicant has current work capacity; that is, a demonstrated capacity for some type of work. This is supported by the medical evidence and applicant’s statement evidence set out above. It is also supported by the evidence that the applicant has undergone two work trials and made attempts to return to the workplace by applying for administrative clerical roles. It follows that even if the applicant had no current work capacity, which I have not found, the evidence does not support the applicant has no current work capacity and likely to continue indefinitely to have no current work capacity.
CONCLUSION
For the above reasons, I am not satisfied that the applicant has no current work capacity. Having regard to the totality of factors under s 32A of the 1987 Act, I am not satisfied that the role of accounts clerk is not suitable employment. I am also not satisfied that the applicant has demonstrated that he has no current work capacity and likely to continue indefinitely to have no current work capacity under s 38(2) of the 1987 Act.
Given the above findings, it is not necessary that I determine whether the role of payroll officer is suitable employment within the meaning of s 32A of the 1987 Act.
As I have found that the applicant does not fall within s 38(2) of the 1987 Act, and because there is no dispute that s 38(3) does not apply, I am unable to enter an award for the applicant for weekly payments of compensation under s 38.
It follows that I decline to set aside the work capacity decision.
Accordingly, the applicant’s application for an interim payment direction is declined.
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