Vo v UPS Pty Ltd
[2025] NSWPIC 344
•17 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Vo v UPS Pty Ltd [2025] NSWPIC 344 |
| APPLICANT: | Quoc Ky Vo |
| RESPONDENT: | UPS Pty Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 17 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for injury to the cervical and lumbar spine, bilateral shoulders, elbows and wrists and resultant incapacity; respondent denied injury and incapacity; respondent denies that the work of the applicant in his role as a storeman was heavy or could have resulted in injury; respondent relied on a statement made by an unverified and unsigned source; respondent’s medical assessment undertaken without an interpreter; applicant’s English skills poor; respondent’s assessor also failed to engage with the evidence of employment as a warehouse storeman for a period of 20 years; Held – applicant sustained injury in the course of his employment to the lumbar and cervical spines, bilateral shoulders, wrist and elbow; applicant partially incapacitated for work; respondent liable to pay weekly compensation pursuant to sections 36 and 37. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to the lumbar and cervical spines, bilateral shoulders, elbows and wrists in the course of his employment with the respondent on 18 October 2022 (deemed) and his employment was the main contributing factor; 2. The respondent to pay the applicant weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 at the rate of $545 per week between 9 December 2022 to 10 March 2023; 3. The respondent to pay the applicant weekly compensation pursuant to s 37 of the 1987 Act at the rate of $216 per week between 11 March 2023 to 30 May 2025 as indexed. 4. Liberty to apply with respect to the calculation of weekly entitlements. |
STATEMENT OF REASONS
BACKGROUND
By way of an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), Mr Vo, (the applicant) claims weekly compensation benefits for incapacity arising out of injuries to the neck, back, bilateral shoulders, elbows and wrists which he attributes to the heavy and repeated nature and conditions of his employment over a period of 20 years with UPS Pty Ltd (the respondent).
The respondent denies it is liable to pay compensation maintaining employment was not the main contributing factor to the injuries claimed. It also disputes incapacity.
The matter underwent the usual case management pathway including conciliation where parties agreed the pre-injury average weekly earnings (PIAWE) were $1,290 per week (or $34 per hour) and given the medical evidence, weekly compensation entitlements were capped at 130 weeks pursuant to s 36 and s 37 of the Workers Compensation Act 1987 (the 1987 Act). The parties requested I determine;
(a) whether the applicant sustained injuries to the neck, back, bilateral shoulders, elbows and wrists;
(b) whether employment was the main contributing factor to the injuries, and
(c) the degree of incapacity.
Mr Gaitanis of counsel instructed by Mr George represented the applicant. Mr Rickard of counsel instructed by Mr Lee represented the respondent. Ms Sahrene was the insurer representative. A Vietnamese interpreter was present.
The evidence before the Commission was limited to the ARD, the Reply and Applications to Lodge Additional Documents (ALAD) filed by both the applicant and respondent on 14 May 2025 and 12 June 2025 respectively. No oral evidence was called.
EVIDENCE
Applicant’s position
In his statement dated 1 June 2023[1] the applicant confirmed he was employed by the respondent as a store person for a period of over 20 years and in recent times reported to Joe Settineri and Paul Davies. He was in good health prior to commencing work with the respondent in 2002. He denies secondary employment.
[1] Folios 4-9 of the ARD.
As regards duties, he was required to receive, store and deliver goods to and from the warehouse both manually, with forklifts or pallet jacks. Items weighed up to 20kg but at times could be 40kg in weight. He was educated in manual handling techniques but there were times when he was unable to call for assistance in lifting heavier items if he was in a section of the warehouse alone. He describes the work as “heavy and hard” and over a period of time he started to experience pain which would disturb his sleep. He was ultimately reprimanded for working too slow which he states was due to pain.
The statement confirms there was no specific injury or incident but pain gradually occurred over a period of 20 years first noticed in the back and neck about seven years ago. Pain was worse in about 2017, not only to the neck and back but also both upper limbs from the shoulders to the wrists. He reported the pain to his doctor in about 2017 and recalls an injection into the left shoulder. He did not report his pains to his supervisors as he was fearful of losing his job but in an attempt to self-manage he dropped the afterhour shifts in early 2022. Pain resulted in multiple absences from work again generally covered with a general medical certificate as he was fearful of his employer’s response to any physical complaints.
His family doctor, Dr Nguyen, certified him off work initially but then assessed him as being fit to work for 20 hours per week with a lifting restriction. The respondent told him there were no suitable duties available despite him being eager to return to work. Ultimately on 5 June 2023, his employment was terminated as there were no duties available for him within the confines of his medical restrictions.
In his supplementary statement dated 17 March 2025 responding to the respondent’s assertions, the applicant asserts the breakdown of duties nominated was inaccurate (administrative v manual handling). Further, whilst he accepts that larger heavier items were ultimately moved by forklift, prior to that, items would have to be unboxed and scanned and then physically stacked onto a pallet which involved heavy lifting. The applicant refers to an email sent to his supervisor Joe Settineri in November 2022 about his pain in the lower back, wrist and both elbows in which he complained the work allocated to him was not suitable due to the weights being lifted. He emphasises he was careful about raising complaints of pain and medical certification prior to lodging his workers compensation claim because he feared losing his job.
In addition to the above statement, counsel for the applicant highlighted the following key documents:
Email to the employer
In an email to his supervisors, dated 27 November 2022[2] the applicant represented (unedited)
“Hi Joe,
Since GE moved, I transferred to work under Paul Davies supervisor, There was a conflicted between I and him for almost a year, my personality is used to keep it inside, tried to calm down and let it goes, did not inform you and that is my problem. Now everything was coming back in my mind, I feel very depression and anxiety that make me unable to sleep last two night, so I would like to speak out, hope that will help to release my stressful.
From last 4 years I been on and off with problem of lower back, stiff neck and wrist sprained, I’m currently had a problem with both elbow, worsened is my left arm. Relatively I’d informed a main reason when I quite from After Hour operation about 8 month ago cause it related to my health. I’m disagreed that Paul was complained my work was underperformance, please be reminder that I’m now work backup for Rodney, Jury and Wilfred, please note about 50% Nokia spare part was over 20Kg, this is not suitable for me to lift, but I still keep going without any complain about that. From 4:30pm daily I’m going to the dock start loading for all outgoing included international freight, organise area ready for next day operation, then do general check before shut down the door at 6pm.
Hi Paul, Sorry I’d tried my best but still not meet your expectation, However, I concern my health is priority, Consequently, I may consider apply for work cover is the only option to help my health to recover.
Kind Regards, Ky Vo”
[2] Folio 27 of the Reply.
Claim form
In a workers injury claim form dated 24 January 2023[3] the applicant put the respondent on notice that lifting, bending, forklift driving and picking resulted in injury to his neck, back, bilateral shoulders, wrists and elbows. He also claimed anxiety and depression due to bullying and demeaning treatment (but this does not form part of this application).
Warning letter
[3] Folios 16-22 of the ARD.
On 28 March 2023,[4] a warning letter was issued by the respondent alleging underperformance (that is only completing five to six orders per day) whereas the expectation was 20 to 30 orders per day along with excessive absenteeism.
[4] Folio 91 of the Reply.
Termination of employment
On 5 June 2023, the respondent terminated the applicant’s employment via letter after acknowledging medical advice of neck pain, bilateral rotator cuff syndrome, bilateral tennis elbow and bilateral wrist tendonitis and lower back pain and his inability to return to his pre injury duties for a period of more than six months.[5]
[5] Folio 23 of the ARD.
Qualified evidence
Dr Negus, orthopedic surgeon reported on 21 August 2023.[6] He recorded the onset of symptoms in the areas claimed commencing about 15 years ago predominantly caused and made worse by the lifting of heavy objects repetitively at work. He noted a consistent presentation and the absence of prior injury. He diagnosed aggravation of degenerative disc disease in the cervical and lumbar spines, tendinosis and bursitis of both shoulders and tendinosis of the common extensor origin or both elbows. He reported at assessment the lumbar spine was symptom free. He assessed the applicant as fit for work for five hours per day on three days per week (15 hours per week) nominating restrictions on lifting, pulling, repetitive use of the arms with a requirement for regular rest breaks.
[6] Folios 34-40 of the ARD.
In a further report dated 20 January 2025,[7] similar findings were documented although he reported due to continuing symptoms in the upper limbs, physiotherapy and cortisone into the shoulders and or elbows was reasonably necessary. Similar workplace restrictions were nominated largely due to the symptoms in the neck and upper limbs bilaterally. Both reports concluded employment was the substantial contributing factor to both injury and the resultant incapacity.
[7] Folios 41-48 of the ARD.
I note that both assessments took place with the assistance of a Vietnamese interpreter and despite this Dr Negus reported “he was a tricky historian, causing some problems with communication”.[8]
[8] Folio 34 of the ARD.
Allied health reports
Mr Tung, physiotherapist[9] on 6 February 2023 noted symptoms of restricted movement in the neck, shoulders, elbows and wrist and reduced grip strength in the left hand. His diagnosis was consistent with the treating and qualified opinion. He recommended ongoing physiotherapy with the aim to improve range of motion, reduce symptoms and improve function. He supported restrictions in the workplace relating to lifting, bending, pushing and pulling with regular rest breaks.
[9] Folio 49 of the ARD.
Radiology reports
The applicant underwent multiple investigations of the upper limbs on 5 January 2016, 7 October 2016, 13 March 2017, March 2022, 3 April 2023, 6 April 2023.[10] I have not summarised these reports as they have been considered as part of the medical dispute. The above attendances are consistent with the applicant’s statement of symptoms for almost a decade now.
[10] Folios 51-57 of the ARD.
Clinical notes
Dr Vinh’s clinical notes commence in 2016 and record sporadic complaints of symptoms in the upper limbs including the shoulders and wrists with requests for radiology ultimately confirming mild carpal tunnel syndrome. The cause of the symptoms is not identified in the notes.
Clinical notes of Dr Nguyen commence on 22 May 2021.[11] Consultations commencing 18 October 2022 and beyond refer to chronic pain in the bilateral upper limbs, back and neck. A history of heavy and repeated activity is noted in the role of storeman. Treatment consisted of referral to a physiotherapist and rehabilitation provider with education about safe working techniques. It is recorded that no suitable duties were made available by the employer and the applicant was exhausting sick leave and annual leave entitlements.[12] Some improvement in pain was noted due to intensive physiotherapy in March 2023.[13]
[11] Folios 58-75 of the ARD.
[12] Folio 63 of the ARD.
[13] Folio 61 of the ARD.
Certificates of capacity issued between 9 December 2022 to 10 March 2023[14] certified the applicant fit for 20 hours of work per week (five hours per day on four days per week) on account of “neck pain, bilateral rotator cuff syndrome, bilateral tennis elbow and wrist tendonitis and lower back pain”.
[14] Folios 134-150 of the ARD.
Certificates of capacity issued between 11 March 2023 to 30 May 2025 certified the applicant as fit for 24 hours per week (eight hours per day on three days per week).[15]
[15] Folios 151-211 of the ARD.
Submissions
On behalf of the applicant it was submitted;
(a) the applicant is credible. He has not exaggerated his symptoms and in fact downplayed them to avoid employer scrutiny and termination, which ultimately eventuated;
(b) close examination of the chronology reveals complaints of upper limb symptoms requiring radiological investigation as early as 2016. Sick leave records show that once symptoms became chronic the applicant incurred more absences from work;
(c) the applicant’s work as a storeman is dynamic. He accepts the employer educated him about safe work handling practices but his work was high volume, heavy and required repeated lifting, bending, carrying. He accepts that heavier weights were lifted by the forklifts but prior to such a lift being undertaken unboxing was done manually and was heavy;
(d) employment is the main contributing factor to the development of the symptoms in the areas claimed. There are no preexisting injuries, concurrent employment or subsequent injury. The applicant was engaged in storeman duties for over 20 years with the respondent and whilst there is some dispute about the level of manual handling, it is not denied by the respondent;
(e) as regards capacity, the opinion of the qualified specialist should be preferred as the assessment of the general practitioner is optimistic and not commensurate with the ongoing complaints of pain;
(f) the qualified opinion of Dr Nair acknowledges the applicant has symptoms but ascribes them entirely due to degeneration. Whilst he recommends the applicant is fit for administration type work he also acknowledges that such a role could only be done if he could avoid lifting and bending due to changes of senescence. Dr Nair has failed to engage with the medical evidence and has failed to consider the micro traumata and cumulative trauma to the areas claimed over a period of 20 years, and
(g) the lack of contemporaneous records is due to the fact the applicant attempted to conceal his symptoms to avoid termination. The history establishes he initially opted out of afterhours work (where there was less support and so was therefore heavier), exhausted personal (sick leave) days when he exacerbated pain in the upper limbs, back and neck and suffered a reduction in productivity, all noted by the employer and which formed the basis of his termination, despite his long service as an employee.
The respondent’s position
In its s 78 notice, the respondent maintained there was no clear work related injury or disease identified; symptoms were generalised with no specific mechanism of onset, have been long standing and there was no evidence that employment was the main/substantial contributing factor to any injury claimed.[16]
[16] Folio 26 of the ARD.
Dr Nair was qualified on behalf of the respondent.[17] Importantly, I note the assessment was not conducted with an interpreter present. In his report dated 2 February 2023 he recorded normal examination of the cervical spine, shoulders, elbow and wrists with approximately 20% global reduction in thoracolumbar range of motion. He noted imaging recorded sub acromial bursitis of both shoulders with impingement on the right and mild carpal tunnel syndrome of the left wrist.
[17] Folio 1 of the Reply.
As regards diagnosis, he reported there was no clear work related injury or disease identified with no particular mechanism for onset (despite taking a history of employment activities) and suggested further diagnostic MRI scans could be performed. As regards whether employment was the main contributing factor, he concluded he could not “empirically answer the question without MRI scans.”[18] He concluded that symptoms were consistent with a pain syndrome as opposed to orthopeadic or spinal conditions and were not consistent with orthopeadic or spinal conditions. In what appears to be an inconsistency, he concludes the “prognosis for his orthopaedic and spinal conditions is favourable”.
[18] Folio 4 of the Reply.
On 29 May 2025, following reassessment, and again without an interpreter present, Dr Nair recorded similar examination findings and conclusions. He reported “he cannot clearly articulate what he thought the cause of his symptoms were”. He noted radiological findings were consistent with changes of senescence but he could not identify any work related injuries. He considered the applicant could undertake work as an administrator on a full time basis provided he avoided “bending and lifting due to the changes of senescence.”
Joe Settineri, the applicant’s supervisor, in his email dated 28 November 2022,[19] discusses matters raised at the performance meeting particularly with regards excessive absenteeism and underperformance stating the applicant informed him that “since receiving Covid Booster Shots he had pains in his arms and cannot sleep nights”.
[19] Folio 30 of the Reply.
Paul Davies, the applicant’s supervisor in his email dated 1 December 2022[20] confirmed the applicant’s duties as (unedited)
“Main duties include but no limited too
Pick/pack customer orders
Inbounding customer receipts, open cartons to confirm part/serial number details requiring the use of a scissor lift trolley for those units over 20 kgs
UPS and customer system updates
Booking transport requests via approved carrier management systems
Cycle counting
Loading/unloading trucks, sorting freight and delivering to respective groups within the warehouse”
[20] Folio 63 of the Reply.
In his email to Scott Reynolds (National Supervisor) dated 5 December 2022, Paul Davis states that the applicant had not advised him of any workplace injury. He confirms the applicant reported to him since September 2021.[21]
[21] Folio 61 of the Reply.
In his statement dated 25 May 2024, Mr Davies largely repeats matters addressed above and confirms no incident reports were made. He recorded the conversation where the applicant thought that the Covid vaccine hurt his arms but after receiving advice from his doctor that this was not the case, considered that “I think work hurt me”.[22]
[22] Folio 77 of the Reply.
The factual investigation relied upon by the respondent and attached to the Reply contains sick leave records, a copy of the warning letter and termination letter along with several plain medical certificates. There is also an extensive document labelled “UPS reply to QUOC Ky Vo work conditions” which goes to great lengths to comment on the day to day activities of the applicant, the lifting limits engaged in, staffing levels and time spent on tasks suggesting that a bulk of the work duties were administrative or light in nature and refutes the applicant’s claim of heavy lifting.[23] The document (which forms the basis of the respondent’s case) is not signed or dated. The deponent’s relationship and degree of observation of the applicant is unknown.
[23] Folios 86-90 of the Reply.
Submissions
On behalf of the respondent it was submitted:
(a) the applicant bears the onus in establishing injury and on the balance of probabilities has failed to do so;
(b) there is a lack of incident reports or complaints to the employer regarding difficulties experienced in the workplace;
(c) the evidence submitted by the workplace shows it has a safe system of work and is emphatic about the wellbeing of its staff with solid occupational health and safety practices maintained;
(d) it is acknowledged the employer’s statement refuting the applicant’s allegations is unsigned and the identity of the author is unknown;
(e) the respondent denies heavy lifting practices and this aligns with the ultimate conclusion of Dr Nair that there is no workplace incident or injury and symptoms are largely due to age related degenerative changes;
(f) the applicant has failed to establish his employment was the “main contributing factor” or “substantial contributing factor” to the development of any injury or aggravation, acceleration or deterioration of any disease process;
(g) the applicant had multiple opportunities to alert the respondent about his workplace difficulties. He did not do so. He availed himself of much sick leave supported by plain certificates. Globally, this infers his capacity is largely unrelated to any workplace injury;
(h) the opinion of Dr Nair should be preferred as it is consistent with the employer’s representation of duties and so there should be an award for the respondent, and
(i) alternatively, if it is established that employment was the main/substantial contributing factor to any injury, any assessment of capacity for work should be guided by the contemporaneous medical certificates of Dr Nguyen and not Dr Negus as Dr Nguyen regularly assessed the applicant between December 2022 and early 2025.
APPLICATION OF THE LAW, FINDINGS AND REASONS
The law relevant to this application is found in the 1987 Act.
Specifically s 4 of the 1987 Act states that injury means personal injury arising out of or in the course of employment and includes disease or aggravation, acceleration or deterioration of any disease but only if employment is the main contributing factor. Further s 9A of the1987 Act requires employment to also be the substantial contributing factor for compensation to be payable.
The applicant claims that it is the “nature and conditions” of employment that has resulted in “injury” and incapacity. This term does not appear in the legislation and its use has been subject to criticism at appellate level.[24] The term is taken to refer to, or be synonymous with, a “disease” injury and a “personal” injury respectively, although this is not correct and can be misleading. In reality, the “nature and conditions of employment” means the receipt of a series of micro-traumata due to the employment duties undertaken over time (which mechanism can produce a “personal injury”) while a “frank injury” is a specific traumatic incident (which can consist in the aggravation of a disease).[25] In order to avoid the potential errors that can arise from the use of these two expressions, particularly in the context of this case, I will return to the definitions of “injury” set out in s 4 of the 1987 Act.
[24] NSW Police Force v Gurnhill [2014] NSWWCCPD 12.
[25] Strasberger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354, in particular at [20] and [22].
It is well established that a “personal injury” within the meaning of s 4(a) of the 1987 Act is made out where, there is some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not sudden, is at least “identifiable”. The word ‘injury’ refers to both the event and the pathology arising from it[26] (Lyons).
[26] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 442 at [429]
A “disease”, however and for the purposes of s 4(b) of the 1987 Act, has been described as “any abnormal physical or mental condition that is not purely transient”[27] (and it is now well established that a relevant aggravation injury (which for present purposes shall include exacerbation or deterioration) need not have any effect on the underlying pre-existing disease itself. It is sufficient if the symptoms of the disease have been increased in the course of employment and the employment has been the main contributing factor to that increase in symptoms.[28] Moreover, employment need only be the main contributing factor to the aggravation and need not contribute to the causation or progression of the underlying disease itself.[29]
[27] per Windeyer J Commissioner for Railways v Bain [1968] HCA 5.
[28] See, for example, Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 and Rural Press Ltd v Hancock [2009] NSWWCCPD 160.
[29] See, for example, Murray v Shillingsworth [2006] NSWLR 451 and State Transit Authority of NSW v El-Achi [2015] NSWWCCPD 71.
Further, “an incident (an injurious event) is only a mechanism for suffering an injury and is not itself a section 4 injury” and that “the relevant ‘injury’ in section 4 is the pathology (my emphasis) that has arisen out of or in the course of employment”.[30] This is not to say that the mechanism of injury will not be relevant to issues concerning liability, but what must be assessed is the consequence of injury specifically in terms of pathology. Thus, the first and critical matter to be determined is the nature of the physical or pathological “injury” for which compensation is being sought and the consideration of whether such injury was “received” in compensable circumstances is directed to that “pathology”.
[30] Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79.
Further, the issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain (Kooragang).[31] The onus of establishing injury falls on the applicant and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: (Nguyen).[32] On this note, it is not necessary that I be satisfied to a degree of certainty but, by the same token, it will not be sufficient if I be merely satisfied that it is possible that the injuries were suffered in the manner alleged.
Has the applicant sustained “injury” and is employment the main contributing factor?
[31] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR at [463].
[32] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
With reference to a common sense evaluation, which has involved scrutiny of the above documented chronology, medical evidence, factual statements and submissions, I find the applicant has demonstrated on the balance of probabilities and with a degree of actual persuasion and affirmative satisfaction that he suffered injury to his lumbar and cervical spines, bilateral shoulders, elbow and wrists and his employment was the main contributing factor in the development of the injury with reference to s 4(b)(ii) of the 1987 Act. This is because:
(a) there is no cogent evidence to contradict or establish that the applicant suffered an injury that did not “consist in”[33] the aggravation of the disease conditions suffered, and
[33] Section 16 of the 1987 Act.
(b) the bulk of the evidence reveals that no other factors apart from employment duties contributed to the disease process and that the pathology identified by Dr Negus, Dr Nguyen and Mr Tung, has been aggravated by what could best be described as micro-traumata arising from his work;
(c) I accept the contemporaneous diagnoses recorded on the medical certificates of Dr Nguyen and in the report of Dr Negus both of whom consistently report aggravation of degenerative changes in the lumbar spine (now largely resolved) but also cervical spine, bursitis in both shoulders and soft tissue injury to the elbows and wrists which align with the applicant’s stated duties over a period of 20 years;
(d) I have placed little weight on the assessment of Dr Nair due to inconsistencies within the reports. His reports initially suggest there are no orthopaedic conditions only to then conclude prognosis is favourable with regards to the orthopaedic conditions. He suggests (albeit somewhat inconsistently), that orthopaedic symptoms, if any, are due to age related degenerative changes, but appears to have failed to engage with the applicant’s evidence of repetitive heavy lifting and manual handling. I cannot explain the reason for failure to sufficiently explain his chain of reasoning but acknowledge the assessments were undertaken without the assistance of an interpreter, no doubt accounting for an incomplete or inaccurate chronology. I note that Dr Negus did have the benefit of an interpreter at both assessments and the applicant’s general practitioner and physiotherapist converse with the applicant in his native language;
(e) I find that the opinion of Dr Nair is not compelling as he has failed to explain why his views on causation, diagnosis and prognosis differ so dramatically from the treating practitioners and the applicant’s qualified specialist. He has made a general pronouncement that there has been no injury and seems to abruptly conclude that as a result symptoms are therefore unrelated to any workplace activity, clearly not turning his mind to the impact of micro traumata of the claimed heavy nature and conditions of employment over a period of 20 years;
(f) the respondent submits the applicant’s claimed work duties have been exaggerated but I do not agree. This is because his claimed work duties align with those recounted by Mr Davies (paragraph 31);
(g) I have acknowledged Mr Davies refutes the applicant’s claims of lifting but also understand he became the applicant’s supervisor in 2021, thereby not being able to account for the applicant’s duties prior to that date, which account for the majority of the applicant’s claim;
(h) the extensive rejection of the applicant’s claims found in the detailed responses by an unnamed representative of UPS (which articulated and formed the basis of the respondent’s position) is disingenuous. This is because the author of the document, their qualifications, position description, knowledge of the workplace and duties undertaken by the applicant and association to the applicant is unknown. I have placed no weight on this document;
(i) I acknowledge the submission that there was no official incident report or contemporaneous complaint of “injury” notified to the respondent. I accept the applicant’s evidence that he attempted to conceal symptoms in order to preserve his employment. I make this finding as I am satisfied his reduction in productivity and excessive absenteeism (subject of a warning by the respondent) aligns with the stated tasks undertaken and is consistent with those reported to his general practitioner from time to time and ultimately his supervisor on 27 November 2022 (paragraph 12 of these reasons);
(j) the symptoms are long standing. I have reviewed the contemporaneous clinical notes and accept the submissions the applicant had over the past decade consulted his doctors for aches and pains arising out of his workplace activities and opted to use his sick leave instead of lodging a workers compensation claim; and,
(k) I accept that the applicant initially told the respondent he may have had symptoms in his upper limbs possibly due to the Covid Booster shots but also acknowledge that he underwent radiological investigations of the upper limbs on several occasions many years earlier and subsequent to Covid. The statements of Mr Davies also confirm that the applicant was informed by his general practitioner that the symptoms in the upper limbs were not due to Covid boosters but “work hurt me” (paragraph 33 of these reasons);
What was the applicant’s capacity for employment?
Section 33 of the 1987 Act states that if total or partial incapacity for work results from an injury, compensation payable by the respondent includes weekly payments during any said incapacity. Section 34 of the 1987 sets out the maximum weekly amounts payable.
Sections 36 and 37 of the 1987 Act prescribe the formula for calculating entitlements and I note such payments are subject to periodic indexation.
Specifically s 36 allows for payments of benefits at 95% of the PIAWE for a maximal period of 13 weeks, also known as the first entitlement period.
Section 37 of the 1987 Act provides for benefits of weekly compensation to be paid for a second entitlement period up to 130 weeks and in the circumstances of this case allow for 80% of PIAWE.
For the reasons given above, I have given the opinion of Dr Nair little weight as I have found that he has failed to engage in the history; did not have the assistance of an interpreter at assessment and failed to explain why his assessment differs from those treating or qualified by the applicant. I have also found his reports to be internally inconsistent. I note he considered the applicant fit for administrative work on a full time basis which avoided any lifting and bending due to age related changes.
Counsel for the applicant suggested that the opinions of Dr Nguyen should not be accepted as being an accurate representation of the applicant’s capacity for employment as they appear to be “optimistic” and that the opinion of Dr Negus should be preferred. The respondent maintained that if there was a finding of injury and causation against it, capacity should be assessed with reference to the contemporaneous certificates of Dr Nguyen who regularly assessed the applicant.
I agree with the respondent in this regard. Whilst I acknowledge the assessments of Dr Negus, his report does not explain why his assessment of capacity differs from that nominated by the general practitioner especially in circumstances where his findings on causation and diagnosis align with Dr Nguyen.
I prefer the evidence of Dr Nguyen. This is because the assessments of capacity were contemporaneous and regular between December 2022 and early 2025.
Given this, I have calculated the applicant’s entitlement to weekly compensation as follows noting that PIAWE has been agreed at $1,290 per week or $34 per hour.
With reference to s 36 of the 1987 Act:
· the first entitlement period commences on 9 December 2022 and ceases on 10 March 2023 (13 weeks);
· 95% of PIAWE = $1,225
· the applicant was certified fit for 20 hours of work per week which at $34 per hour equates to $680.00 per week
· $1,225 - $680 per week = $545.00 per week.
I find the respondent is liable to pay the applicant weekly compensation pursuant to s 36 at the rate of $545 per week between 9 December 2022 and 10 March 2023.
With reference to s 37 of the 1987 Act:
· the second entitlement period commences on 11 March 2023 and ceases on 30 May 2025 (130 weeks)
· 80% of PIAWE = $1,032
· the applicant was certified fit for 24 hours of work per week which at $34 per hour equates to $816 per week
· $1,032 - $816 per week = $216 per week.
I find the respondent is liable to pay the applicant weekly compensation pursuant to s 37 at the rate of $216 per week between 11 March 2023 and 30 May 2025 as indexed.
SUMMARY
For the reasons above, I make the findings and orders as set out on page 1 of the Certificate of Determination.
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