Vanstone v Uniting (NSW/Act) - Springwood Uniting Aged Care Facility
[2024] NSWPIC 639
•15 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Vanstone v Uniting (NSW/ACT) - Springwood Uniting Aged Care Facility [2024] NSWPIC 639 |
| APPLICANT: | Marina Vanstone |
| RESPONDENT: | Uniting (NSW/ACT) - Springwood Uniting Aged Care Facility |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 15 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; work capacity dispute; claim for weekly payments under section 38; worker’s left arm functionally useless; claimed consequential conditions in the right wrist and shoulder; whether a “downgrade” needs to be explained; Wollongong Nursing Home v Dewar applied; Held – applicant suffered consequential condition in the right wrist; award for respondent for right shoulder; applicant had no current work capacity and likely to continue indefinitely to have no current work capacity; award for weekly payments in section 38 period. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered a consequential condition in her right wrist/forearm as a result of her accepted left wrist injury. 2. Award for the respondent for the claim of consequential condition in the right shoulder. 3. The applicant has no current work capacity and is likely to continue indefinitely to have no current work capacity. 4. The respondent is to pay the applicant weekly compensation pursuant to s 38 of the Workers Compensation Act 1987, being 80% of pre-injury average weekly earnings, as indexed, in the following manner: (a) from 27 November 2023 to 31 March 2023 at the rate of $1,072 per week; (b) from 1 April 2024 to 30 September 2024 at the rate of $1,088 per week, and (c) from 1 October 2024 to date and continuing at the rate of $1,112 per week. 5. The order for ongoing payments is to be indexed from time in accordance with the legislation. |
STATEMENT OF REASONS
BACKGROUND
Ms Vanstone has spent her working life in nursing. She was employed by the respondent at Springwood Uniting Aged Care Facility as a Care Assistant in about 2016. She worked in the dementia unit, performing patient care.
On 17 January 2021, Ms Vanstone was aggressively grabbed by a patient who was known to be aggressive. This caused her left arm, thumb and wrist to hyper-extend. Over a period of time, where symptoms worsened and her activities of daily living became more restricted, Ms Vanstone underwent various treatment modalities. Surgery, in the form of an arthroscopy and ulnar shortening osteotomy, was performed in September 2021. Further surgery was performed in December 2022. Neither was particularly effective and to this day, Ms Vanstone has significant restrictions in her left hand and wrist.
Ms Vanstone has been paid weekly benefits for a period up to the end of the second entitlement period (130 weeks). On 18 October 2023, the insurer determined that Ms Vanstone did not meet the requirement to continue to receive weekly payments under s 38 of the Workers Compensation Act 1987 (the 1987 Act). On 14 December 2023, the respondent issued a work capacity decision that determined that Ms Vanstone could work in suitable employment for four hours per day, three days per week.
Ms Vanstone also claims that she suffered consequential conditions in her right wrist/forearm and right shoulder as a result of overuse of that arm, due to the significant restrictions she faces in her left hand.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffers from a consequential condition in her right wrist/forearm and/or right shoulder as a result of the accepted injury to her left wrist, and
(b) whether Ms Vanstone meets the requirements to be entitled to weekly payments after the second entitlement period pursuant to s 38 of the 1987 Act (that is, whether Ms Vanstone has “no current work capacity and likely to continue indefinitely to have no current work capacity”).
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Ms Vanstone was represented at hearing by Mr Perry of counsel, instructed by Turner Freeman Lawyers. The respondent was represented by Mr Stiles of counsel, instructed by Rankin Ellison Lawyers.
During the course of the hearing it was identified that the description of injury in the Application to Resolve a Dispute (Application) did not include any reference to a consequential condition in the right shoulder, which had been subject of a dispute notice issued by the respondent and attached to the Reply. The applicant sought to amend the Application to make a claim for that consequential condition. The respondent consented to that amendment.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) an Application to Admit Late Documents lodged by the respondent dated 28 October 2024, attaching financial and bank records, which were not referred to by the parties, and
(d) a certificate of capacity dated 29 October 2024, which was handed up by the applicant during the proceedings, and was admitted without objection by the respondent.
I have considered the evidence referred to by the parties during submission in detail, and will refer to parts of that evidence below in my discussions and reasons.
There are competing medico-legal opinions provided by the parties; the applicant relies on Dr Bodel and the respondent upon Dr Miniter, although the respondent’s submissions acknowledged the strength (or otherwise) of Dr Miniter’s opinion.
There are also competing vocational/functional assessment reports. The s 78 notice issued by the respondent relies on reports completed by “Prudence Rehab” which identifies four vocational options, being NDIS Support Coordinator, Information Officer, Receptionist and Psychosocial Support Worker. Ms Vanstone’s assessed capacity, in accordance with that report, is three to four hours per day, three days per week.
The applicant relies on a report of Dr Shahzad, dated 26 March 2024, which is both a medicolegal opinion as to causation, relevant to the question of the consequential conditions as claimed, and a discussion as to capacity, in response to the s 78 notice and documents relied upon by the respondent.
The applicant also obtained their own functional assessment dated 22 April 2024, prepared by Jennifer Robinson, a physiotherapist. This report discusses Ms Vanstone’s assessed physical work limitations and physical capacity for suitable employment options. The role identified for discussion is that of a “Companion Worker”.
A vocational assessment followed that, and is dated 10 May 2024. That vocational assessment concludes that Ms Vanstone had capacity for two hours three days per week, but that the employment options identified by the functional assessment of Prudence Rehab are not appropriate, given the requirements of the role. The report goes on to conclude that Ms Vanstone could work as a Companion Worker on reduced hours, but that she would be unlikely to be able to complete the tasks required without a high level of support from a potential employer.
Also before me are extensive clinical notes and reports of Ms Vanstone’s treating team, including Dr Gupta (orthopaedic surgeon who performed the surgeries on Ms Vanstone) and Dr Yu Mon (the applicant’s treating general practitioner).
Ms Vanstone also provides two statements. The first is dated 31 August 2022, and concerns the occurence of injury and consequences thereof, including surgeries undertaken. The second is dated 30 May 2024, and concerns the ongoing effects of the injury and discusses the roles provided in the work capacity decision.
SUBMISSIONS
The parties provided submissions during the course of the hearing on 1 November 2024. Those submissions were recorded and I do not intend to repeat them in full. A below is a summary of the submissions provided.
Applicant’s submissions
The applicant commenced by setting out that the applicant suffered what we now know has been a devastating injury, leaving her with what is effectively a completely useless non-dominant left hand.
In terms of the consequential conditions, the applicant submits that given the chronicity of the condition and the two bouts of surgery, I would accept that there is clear evidence that there are problems with the right arm.
The applicant then referred to the relevant evidence concerning capacity, including the vocational and functional assessments. The applicant submits that the functional assessment is detailed and careful, and addresses the positions identified for her. The vocational assessment provides reasons why each of the employment options is not appropriate, and whilst it did identify companion worker on reduced hours, when one looks at her background and the fact that she would be unlikely to complete tasks without a high level of support, there is no current capacity.
The vocational assessment report is also consistent with Dr Bodel. It was submitted that I would form the view that Dr Bodel has done what he was asked to do, and the report provides strong evidence from an orthopeadic surgeon who had a clear history before him.
Likewise, it was submitted that Dr Shahzad had a clear history and a good basis for his conclusion that the applicant had total incapacity. The applicant referred to the certificates of capacity provided by Dr Mon noting that prior to November 2023, the applicant had some capacity, but that Dr Mon has looked after the applicant throughout the course of her injury and is in a special position to comment about whether she can go back to work.
The applicant referred to Wollongong Nursing Home v Dewar [2014] NSWWCCPD 55 (Dewar) and Mid North Coast Local Health District v De Boer [2013] NSWWCCPD 41.
Respondent’s submissions
The respondent submits that the primary position is that the applicant continues to have some capacity for suitable employment, that effectively nothing has changed since the surgery was completed in 2022. The certification continued until the notice under s 38 was given, when the applicant’s capacity was changed to nil.
The respondent referred to the reports of Drs Miniter and Bodel from 2022, who both contemplated the applicant would make a recovery and be fit for some suitable employment. The respondent submits that the medical certificates are important because at the point in time the respondent first wrote to the applicant about her benefits, she was certified for five hours three days per week, which was then changed to unfit and unfit indefinitely. There is no explanation or evidence to justify the change in certification.
The respondent then went through various clinical records that showed the applicant had some capacity for work, was looking at returning to work, and was discussing vocational options. The applicant told the respondent’s vocational assessor that she wanted to stay within the health industry, and the treating doctor approved the role of support coordinator. As late as 9 October 2023 the applicant was still searching for a job, then on 18 October 2023 the respondent communicated the decision to the applicant, who then downgrades her capacity.
It is from this point on that you start to get into the medicolegal territory. The respondent submits that Dr Bodel only talks of short to medium term at best. The respondent’s vocational assessment is sedentary work only, which is pretty consistent with the general practitioner’s certifications.
The respondent referred to the report of Dr Shahzad, submitting that he is not consistent with what the general practitioner certified when she accepted the role as suitable. The respondent submits that there is no psychological evidence before me from any treater, and any reference to psychological issues should be ignored. Whilst Dr Shahzad explains that the downgrade was suitable, he does not explain why.
The respondent submits that in the absence of some explanation for the downgrade, other than the obvious that it was in response to the notice issued by the insurer, I would not accept that the medical certificates since that downgrade are a real indication of capacity.
The respondent then made submissions in respect of the consequential conditions, submitting that there is no support for a causal connection in the right shoulder. In respect of the right wrist and forearm the respondent submits that the applicant has not explained what she was doing to cause the consequential condition as claimed, noting that her right arm is dominant. Dr Bodel doesn’t assess any right wrist impairment and doesn’t provide a diagnosis. There is simply a paucity of evidence dealing with it.
Applicant in response
Briefly, the applicant submitted that the left arm has become useless, which means it follows that activities that would have been conducted by both arms are now conducted by the right arm only. The applicant submits that Dr Shahzad provides a diagnosis, and is well placed to reach a conclusion.
The applicant submits that the respondent’s submissions are afflicted by a focus on the “downgrade”. What there has been is a series of consultations and the improvement that was hoped for did not eventuate. It is not unusual for a general practitioner to provide a certification for some time for a worker to attempt light jobs and the optimism was not borne out. We now find the applicant in the condition that Dr Shahzad found her in, in April. There is no requirement for a doctor to say that the applicant is different.
FINDINGS AND REASONS
The compensation claimed in this matter is for weekly benefits under s 38 of the 1987 Act. However, the applicant has proceeded on the basis that there are consequential conditions in her right arm, including the wrist/forearm and shoulder. Given the determination of whether the worker has no current work capacity might include consideration of these body parts (if found to be consequential to the accepted left arm injury), then it is necessary to determine those issues first.
Consequential condition – right shoulder
The right shoulder was disputed in a s 78 notice dated 29 March 2023, relying on the report of Dr Miniter.
The evidence in relation to the right shoulder is sparse. The applicant’s 2024 statement refers to a consequential injury to the right wrist but does not mention the shoulder. The applicant’s 2022 statement, which explains in more detail the overuse of the right wrist, likewise does not refer to the right shoulder.
Support for the right shoulder comes from the report of Dr Shahzad. Dr Shahzad discusses complaints of a “consequential injury to her right hand, wrist, and forearm”. He then notes “An ultrasound of her right shoulder showed supraspinatus tendinosis with overlying subacromial bursitis and bursal impingement on abduction.”
Dr Shahzad performed an examination of the shoulders. The active range of motion he measured was normal on both sides. He provides the following diagnosis: “Right shoulder (secondary): There is supraspinatus tendinosis with overlying subacromial bursitis and bursal impingement on abduction.”
Dr Miniter, on the other hand, does not agree that the applicant suffers from any consequential conditions. He provides a generalised dismissal of “consequential injury”: “There are no feature of consequential injury which, you know, has been thoroughly dismissed in the medical literature”. I am not aware of what medical literature Dr Miniter is referring to here. As he would know, consequential conditions are regularly pleaded and accepted in the Commission. This generalised statement is of no assistance and does not consider the specific facts in the case.
Dr Miniter goes on to say, specifically in relation to the right shoulder:
“The current diagnosis of the right shoulder is generalised discomfort. She did tell me that she had an injection into the shoulder with only partial relief.
…
There are no features of consequential injury to the right shoulder.”
On examination, Dr Bodel found no restriction of the shoulder (or elbow). He does not provide a diagnosis.
The applicant did not take me to any part of the clinical record that dealt with the right shoulder.
The applicant has the onus to prove her case. Whilst there are some symptoms present in the right shoulder, there have been some investigations undertaken, and a diagnosis has been provided by Dr Shahzad, there is no reasonable causation explanation provided. The applicant’s statements only deal with the right wrist. Whilst I have substantial issues accepting much of what Dr Miniter has said, including his unwarranted and incorrect criticism of Dr Bodel, I do not need to accept his opinion in total. He provides a diagnosis of generalised discomfort. This appears consistent with the examinations conducted which have not shown any restriction in movement (although I note a restriction in movement is not necessary for a finding of consequential condition).
Having considered the medical evidence, and the lack of explanation of a causative connection outside of a general reliance in submissions of “overuse”, I am not satisfied on the balance of probabilities that the applicant suffers a consequential condition in her right shoulder.
Consequential condition – right wrist/forearm
These two conditions are dealt with together in the s 78 notice and it is difficult to untangle the difference between the right wrist and the forearm. I will deal with them together.
In her statement dated 31 August 2022, the applicant first outlines how her left wrist injury is starting to affect her right wrist:
“Due to my injury to the left wrist and the restrictions imposed by my injury, I now rely upon my right wrist much more to attend to tasks and compensate for the loss in my left wrist in fear of further aggravating my injury/condition. I rely upon my right wrist to drive, attend to housework, undertake grocery shopping and lift items. Due to this, I have begun to experience a gradual onset of pain and discomfort in my right wrist. I experience weakness and fatigue in my right wrist. My range of motion and flexibility has also been impacted. Due to this, I am eager to undergo the proposed surgery to my left wrist to prevent any further deterioration to my right wrist. I cannot tolerate the pain any longer and I am worried I am going to further hurt my right wrist. This will significantly impact my daily activity and life.”
In her statement dated 30 May 2024, the applicant states:
“In addition, I sustained a consequential injury to my right wrist as a result of overcompensating and over-relying upon same to avoid aggravating my accepted injuries to my left upper extremity.”
Dr Shahzad records the following in relation to the right wrist:
“She also complained of a consequential injury to her right hand, wrist, and forearm as a result of overcompensating and over-relying upon her left hand. Ultrasound of her right wrist revealed “The area of interest in the dorsal aspect of the right wrist corresponds to extensor digitorum tendinitis changes with tenosynovitis changes. Synovitis I capsulitis within the dorsal aspect of the right wrist with some joint effusion.”” (emphasis in original)
On examination, the right wrist range of motion was normal. He provides the following diagnosis: “Right wrist (secondary): Musculoligamentous injury of the radiocarpal and first CMC joint of the right wrist.”
There are also reports of ongoing significant symptoms in the right wrist, including in the functional assessment dated 22 April 2024. The assessed physical work limitations in that report included right hand of no more than 5kg. The applicant’s vocational assessment report states that “She indicated that she often finds selfcare and cleaning duties difficult to complete and is often overcompensating with her right hand.”
There is also support for the applicant’s claim of a consequential condition in the clinical notes. In a report dated 2 August 2022, Dr Mon writes to the Penrith Hand Clinic. It is stated:
“She is under work cover for left wrist and forearm pain. She recently has right wrist pain and Ultrasound (right wrist) showed extensor digitorium tendonitis and XR showed OA changes. Results attached. In my opinion, her right wrist pain is most likely due to overusage to compensate left wrist pain and rest.”
The earliest certificate of capacity I have before me, which is dated 5 January 2023, refers to the right wrist: “right wrist pain – tenxtensor digitorium tendonitis (most likely due to compensating for left hand)”.
I have discussed the competing opinion of Dr Miniter above. I place little weight on his opinion. It is expressed in general terms and is infected by Dr Miniter’s apparent general dislike of Dr Bodel. There is support for the consequential condition to the right wrist, including in the treating records. The applicant’s statement explains the overuse of her right wrist due to the injured left wrist.
I am satisfied on the balance of probabilities that the applicant suffers from a consequential condition in her right wrist.
The weekly benefits claim
The real substance of this dispute concerns the applicant’s capacity for work in suitable employment.
The applicant has exhausted her entitlements under ss 36 and 37 of the 1987 Act. She is now in the period after the second entitlement period, and is not a worker with high needs. In order to be entitled to weekly payments for the period claimed (which starts from 27 November 2023, and is made to date and continuing), she must prove that she has “no current work capacity and likely to continue indefinitely to have no current work capacity”.
Some of the focus of the respondent’s case at hearing was on the certificate of capacity dated 17 November 2023, in contrast with the preceding certificate of capacity (and the period before that). The respondent made submissions about the “downgrade”, which is from the certificate dated 17 November 2023. The respondent submits that what is missing from the evidence is any explanation to justify the change in certification.
It is often the case that this submission, or submissions to this effect, are made in work capacity disputes before the Commission. This may be due to the nature of the sections requiring work capacity assessments, and the notification provisions attached (which generally require the insurer to give three months’ notice of the effect of a work capacity decision). Work capacity assessments (and the decisions that follow) that come to the Commission will invariably have the effect of reducing or ending a worker’s entitlement to weekly benefits.
It can readily be seen why an insurer, on issuing a work capacity decision, based on material evidence, might find any coincidental downgrade in capacity to be circumspect. However, there may be many explanations for this. A worker may experience a genuine deterioration in the physical condition, that so happens to coincide with the notice period required. A worker may have been consistent in their obligation to provide certificates of capacity, attempting to work within their limitations, only to find that they are to be without any compensation. This may cause great scrutiny from the treating general practitioner and the worker on the actual reality of the worker’s capacity. It may be that a worker deliberately seeks to have their capacity reduced to avoid the consequence of a decision made in their favour. Given the effects of any work capacity decision, this might even be understandable.
What is not required, in the legislation, is an explanation for the downgrade that is acceptable to the insurer. It does not contemplate such an explanation at all. I accept that contemporaneous explanation of a worker’s capacity will be a relevant consideration. The absence of such an explanation does not defeat an applicant’s case, and one would draw any such inference cautiously, particularly in circumstances where other evidence may support such a conclusion that a worker’s capacity has changed.
Likewise there are reasons why a worker may be certified with capacity for a period, that may not entirely reflect their “true” capacity. Return to work or work in suitable duties requires some capacity. There are incentives for employers to return injured workers to work or take on injured workers in new employment. These incentives require a worker to have some capacity. Claims managers are also involved in these conversations in large group meetings that may have some influence over certifications provided.
The above is not to suggest that any of that influenced the change in capacity in the present case. I can only look at the facts and evidence that is before me, but the above general observations give some context to the question that I must determine.
In the present case, Ms Vanstone was certified with capacity for some type of work on 9 October 2023 to 6 November 2023 for five hours a day three days a week. In “other” it was noted “Marina cannot return to preinjury duties as Nurse role. Currently, we are doing for new vocational assessment” [sic]. On 17 November 2023, that capacity was changed to no current work capacity for any work for “indefinite period”. The notes in that certificate provide:
“The maximum medical improvement have been reached. Due to the condition affecting the left hand, the patient has no current work capacity. See Dr Manish Gupta notes on 6/11/2023 (report is attached).”
During the course of the hearing, I inquired as to the whereabouts of the notes and report of Dr Gupta. The applicant informed me that the clinical notes of Dr Gupta ended prior to the above date and it was not before them or placed before me. That is unfortunate. In those circumstances, I can only rely on the evidence available, as provided by Dr Mon in the certificate of capacity. That is, that on 17 November 2023, she was of the opinion that Ms Vanstone had reached maximum medical improvement and had no current work capacity. It is a brief explanation but an explanation nonetheless. I would further note that Dr Shahzad supported the downgrade as being appropriate, consistent with the “severity of her injuries, ongoing symptoms, and functional limitations”.
Clause 9 of Sch 3 to the 1987 Act provides relevant definitions for the purposes of considering capacity:
“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Those definitions introduce consideration of suitable employment as relevant. It is accepted across the medical evidence and by the parties in submissions that the applicant has no capacity to work in pre-injury employment. The relevant question then is does she have a present inability arising from an injury that she is not able to return to work in suitable employment.
Suitable employment is defined in s 32A of the 1987 Act. There are a series of factors one must consider and that must be ignored. I generally describe those as the medical issues (being “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 the employment issues (being “the worker’s age, education, skills and work experience”).
The medical issues take centre stage in the present dispute, although there is some relevance to the employment issues due to Ms Vanstone’s background as a nurse for her entire working life.
What is important in the definition of the medical issues in s 32A is that I am not limited to consideration of a certificate of capacity provided by a worker.
The starting point for this is the applicant’s left wrist. I agree with the applicant’s characterisation of Ms Vanstone’s entire left arm, based on the functioning in her left wrist, as being effectively useless. It is the applicant’s non-dominant hand, but it is difficult to see how the applicant can use her left arm at all in any work function for which she might reasonably be qualified. The applicant’s left grip strength is around one tenth of normal (see the applicant’s functional assessment), meaning she would have difficult with any unilateral carry in her left hand, and her bilateral carry would be severely restricted. Dr Shahzad records the applicant’s present symptoms as follows:
“Ms Vanstone is wearing a splint on her left wrist. She reports she has “no feeling” in her left thumb. There is extensive scarring. She suffers from left wrist pain. She is unable to lift weights and reports if she lifts any weights, her whole hand “pops off”. She has decreased muscle tone in her left wrist. She has muscle wasting and tremors on the left hand. She has difficulty with buttons and keys.”
The respondent’s functional assessment records similar significant symptoms in the left wrist and hand, including burning and stabbing pain constantly, as well as numbness.
The above is also largely consistent with the present symptoms set out in her statement dated 30 May 2024.
The applicant also has some restriction in her right wrist, which I have accepted as a consequential condition above. It is not as significant as the primary injury affecting her left wrist, but is still a relevant factor for consideration.
There is some support in the medical information for the conclusion that, in theory, Ms Vanstone has some capacity. The respondent’s functional assessment accepts that Ms Vanstone is capable of working in sedentary occupations only, but identifies four possible options. The recommended capacity in that report is for three to four hours per day, three days per week. Dr Mon approved the role of Support Coordinator as suitable on 16 August 2023, which was confirmed in the facsimile cover sheet signed on 14 September 2023. According to the respondent’s vocational assessment report, Ms Vanstone agreed to the proposed vocational option of NDIS Support Coordinator during a case conference held on 15 August 2023.
This is largely reflected in an email record of that conference completed by Doron Blaikie, principal consultant at Prudence Rheba. However, what was actually agreed is recorded as:
“Katie suggested the possibility of NDIS Support Coordinator or NDIS Support Planner and both marina and Dr Mon agreed that these may be suitable, pending further confirmation of the physical requirements of the roles. Dr Mon completed the sing questionnaire accordingly (see attached)”
This is not an outright approval as appears from the signed document, but depends on the physical requirements of the roles (which, as is obvious, will vary from employer to employer).
The applicant’s vocational assessment report suggests that a Companion Worker on reduced hours would be a suitable role. The assessed capacity is two hours three days per week, which is close to what was assessed by the respondent. However, it was then concluded that Ms Vanstone has no current capacity “due to the extensive list of barriers and work limitations it is unlikely that she would be able to complete the above job tasks without a high level of support from a potential employer and pending a gradual return to work”.
Dr Shahzad opines that Ms Vanstone has no current work capacity and “is unable to return to work permanently in the foreseeable future”. He discusses each of the roles identified, including NDIS support Coordinator. In relation to that role he states that “she may not be able to perform the physical aspects of this role effectively”. He then goes on to suggest that Ms Vanstone could not work as a Psychosocial Support Worker, noting that while it may involve less physical activity, it may require strong interpersonal skills. This was said to be impacted by “ongoing pain and discomfort, as well as potential psychological impacts from her injuries”. I accept that here Dr Shahzad has considered something that is not provided for in the evidence and possibly outside of his expertise (namely a psychological impact from her injury). However, he also relies upon the impacts of ongoing pain on performing this role, which make it unsuitable.
Dr Gupta has supported a potential return to work on a number of occasions. On 8 February 2023, he suggest that Ms Vanstone was fit to return to sedentary type work immediately, which could progress to suitable duties such as feeding residents and setting up tables in 6-8 weeks.
On 6 April 2023, Dr Gupta suggested that a “hopeful!” but realistic return to work goal in pre-injury duties would be three months, and approved of the provision of vocational assessment and job seeking. Given the issues that arose in that period an Ms Vanstone’s current presentation, which is accepted as being totally incompatible with pre-injury duties, this “hopeful” goal was clearly not achieved and, likely unrealistic.
As I have noted above in relation to the disputed “downgrade” certificate of capacity, it is apparent that there was information provided by Dr Gupta that is not before me. The information available suggests that he was always optimistic that Ms Vanstone’s recovery would be uncomplicated, but this has not been borne out on the evidence. This is consistent with the applicant’s case.
The applicant referred to Dewar, a decision of DP Roche. That case was determined after the amendments made to the 1987 Act introduced the definition of suitable employment and removed the old scheme for weekly compensation benefits. DP Roche considered the cases relevant to the previous scheme and said the following:
“However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).” (at [58])
He went on to say:
“Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.” (at [60])
The task requires the identification of whether there are any “real jobs” (Dewar at [14]). I accept that in the present case, the jobs identified are not made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act. What is still relevant, however, is whether the applicant is capable of employment in work for which the worker is currently suited.
The evidence given varies on the general capacity for work that the applicant can do. Her certificates of capacity, following the downgrade, are that she has no current work capacity. The vocational assessments differ but suggest that she can do between 6 and 12 hours per week of work. However one must consider those certifications in light of the functional position Ms Vanstone finds herself in. As I said at the start, she has an effectively useless left arm (which is her non-dominant arm). Her background is only in the health care sector, mainly as a nurse and adjacent.
It is difficult to imagine a “real job” that would employ a person for six hours per week, working with one arm, in a role that involves providing care for other people. The roles identified all involve some level of physicality. Even in roles that are less physical, such as Psychosocial Support Worker, Ms Vanstone will be effected by her ongoing pain and discomfort. The facts in this case fit within the “eye of the needle” test, which DP Roche accepted still had a role to play in consideration of no current work capacity. It would be a purely theoretical or academic exercise to suggest that Ms Vanstone could work in suitable employment. Accordingly, she has no current work capacity.
Based on the chronicity of her symptoms, her ongoing certification of nil capacity in her certificates of capacity, and her significant functional restrictions, I am satisfied that this is likely to continue indefinitely.
Accordingly, Ms Vanstone has an entitlement to payments after the second entitlement period and I will make an award in that regard. That award will be backdated based on agreed pre-injury average weekly earnings figures, and on an ongoing basis to be indexed from time to time.
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