Wang v Hard Rock Enterprises Pty Ltd

DECISION OF PRESIDENT’S DELEGATE
CITATION:	Wang v Hard Rock Enterprises Pty Ltd [2022] NSWPIC 105
APPLICANT:	Keyang Wang
RESPONDENT:	Hard Rock Enterprises Pty Ltd
PRESIDENT’S DELEGATE:	Parnel McAdam
DATE OF DECISION:	14 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Work capacity dispute; consideration of definition of suitable employment in section 32A of the Workers Compensation Act 1987; worker had moderate incapacity and limited English skills; worker capable of finding work using Chinese language apps; no obligation on insurer to provide English language classes; Held- award for the applicant for a short return to work period and thereafter award for the respondent.
DIRECTIONS MADE:	1. The respondent pay the applicant $424 per week pursuant to section 37 of the Workers Compensation Act 1987 Act for the period 1 December 2021 until 29 December 2021. *2. Award for the respondent thereafter.*

INTERIM PAYMENT DIRECTION

STATEMENT OF REASONS

BACKGROUND

Mr Wang (the applicant) was born in China and came to Australia in 2016. Before coming to Australia, he worked in advertising as a designer and marketing manager.
After arriving in Australia, Mr Wang studied English which left him with a limited English ability. He did not work in Australia for about three years, until commencing employment with Hard Rock Enterprises Pty Ltd (the respondent) as a storeperson in around February 2019.
On 24 March 2020, Mr Wang was unloading boxes from a shipping container when he felt an onset of pain in the left calf. He reported the injury and consulted his general practitioner. He was referred for an ultrasound which showed a partial tear in the left calf muscle.
Mr Wang was in receipt of weekly payments until the respondent’s insurer issued a work capacity decision on 19 August 2021 that took effect on 1 December 2021. That decision reduced Mr Wang’s weekly payments to nil.

ISSUE IN DISPUTE

The issue in dispute in this matter is whether Mr Wang is capable of work in suitable employment, per the definition in section 32A of the Workers Compensation Act 1987 (the 1987 Act). The claim made is for weekly benefits pursuant to section 37 of the 1987 Act.

THE LEGISLATION

As this dispute concerns suitable employment, I must consider the definition in section 32A of the 1987 Act:
“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.”
Section 37 of the 1987 Act provides:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
I am determining this dispute exercising powers of the President delegated to me. Section 297(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
“When a dispute to which this Part applies concerns weekly payments of compensation or medical expenses compensation, the President can direct the person on whom the claim is made to pay the compensation concerned. Such a direction is referred to in this Part as an interim payment direction.”

THE EVIDENCE

The application contains a large volume of material, the bulk of which is made up of clinical notes of no particular relevance to the dispute before me. I have considered all of that material, and will discuss the relevant documents below.
The dispute notices
The work capacity decision was made on 19 August 2021. The respondent determined that Mr Wang was capable of work in suitable employment for 8 hours per day, 5 days per week, as a product assembler. Mr Wang’s ability to earn in this employment was in excess of his weekly entitlement, and accordingly his payments were reduced to nil.
Mr Wang, through his solicitors, sought review of that decision on the basis that his English is very poor and it was not realistic to find any employment due to his physical restrictions. On 7 October 2021 the respondent issued a notice under section 287A of the 1998 Act, maintaining their previous decision.
A further review was sought, with support from a Vocational Assessment Report of Fitcare. On 31 January 2022 that review confirmed the previous decisions.
Vocational Assessment Report by Acumen
The respondent’s section 78 notice and review decisions relied on a vocational assessment report prepared by Acumen health, dated 21 July 2021.
The report takes a consistent history of the occurrence of injury and the consequences thereof, include treatment and ongoing symptoms. At the time of the assessment, Mr Wang reported a 5kg lifting restriction, a 2 hour standing restriction, and no bending or kneeling/squatting. This self-report was consistent with Mr Wang’s certificate of capacity at that time.
Mr Wang’s employment history and transferable skills were considered. It was noted that he has poor spoken and receptive English skills, and his previous workplace was a Mandarin speaking environment. He had, at that time, no independent job seeking skills. A large range of roles were considered, most of which were declined either on the basis of English skills or declined by Mr Wang’s treating doctor. Three roles were considered suitable: product assembler, process worker and pick packer.
A labour market analysis was conducted. The role of product assembler was generally noted to be a light physical demand level, with occasional squatting or kneeling for some assembly tasks. Three employers were contacted as part of the analysis. No qualifications were required for any of the roles, and no previous experience was required. Transferrable skills differed between the employers, but involved skills such as good attention to detail, and an ability to work independently and with others.
Each of the roles were flexible with sitting and standing, with sitting required for up to 30 minutes to complete assigned tasks. None of the roles required lifting greater than 5kg or bending/squatting.
The other two roles of process worker and pick packer were discussed in a similar manner. The respondent relied on the role of product assembler in its work capacity decision and focussed on this role in submissions.
Vocational assessment report of Fitcare Medicolegal
The applicant relied on their own vocational assessment report prepared by Fitcare. The report took a consistent history of injury and treatment undertaken. Mr Wang’s education and training was recorded including his English course. Mr Wang reported having basic English reading, writing and numeracy skills, and utilised a Mandarin interpreter.
A list of post-injury employment barriers was outlined. These include lack of transferrable skills, physical limitations, no job seeking skills, and basic conversational English.
The Fitcare report rejected the roles of process worker and pick packer as not being appropriate given the functional requirements of the roles were not in line with his capacity.
The report considered that Mr Wang would realistically be able to work in suitable employment as a product assembler on reduced hours. It was opined that he would be unlikely to complete this role without a high level of support from a potential employer and pending a gradual return to work. The report referred to the opinion of Dr Chang, who recommended a gradual return to work of 4 hours per day, 3 days per week, with a goal of full-time hours. The report also indicated that Mr Wang had not received any form of occupational rehabilitation and that he has no job seeking skills and little knowledge of the Australian employment process. It was recommended that Mr Wang be provided with job seeking education and vocational rehabilitation sessions.
Evidence of Dr Tsia
Dr Tsia has been Mr Wang’s treating general practitioner for the life of the claim. The most recent certificate of capacity provides that Mr Wang is suitable for some type of work from 14 January 2022 to 14 February 2022, for 8 hours per day, 5 days per week. Dr Tsia comments: “Full time hours with restrictions. Alternative job. Job provider to assist with looking for suitable work”. Capacity limitations include 2 hours maximum standing with a rest break as required, avoid repetitive squatting/bending, and not to lift from floor level but waist to waist is suitable, avoid heavy lifting or carrying weight for prolonged period.
On 21 July 2021, Dr Tsia also approved the three roles identified in the Acumen vocational assessment report as suitable.
Reports of Dr Chang
Dr Alice Chang is Mr Wang’s treating surgeon. A number of reports prepared by Dr Chang are attached to the application, starting with the initial referral report on 29 May 2020. That report discussed the ultrasound evidence of a tear of the left lateral gastrocnemius, and recommended physiotherapy, with a 6 week review.
On 14 July 2020, Dr Chang records mild tenderness over the later gastrocnemius muscle and that Mr Wang was able to stand from squatting with mild pain. Mr Wang had not attended physiotherapy due to language barriers.
On 26 August 2020, Dr Chang reviewed Mr Wang. Dr Chang stressed the importance of physiotherapy and recognition that some pain would be expected whilst rehabilitating towards recovery.
On 3 November 2020, Dr Chang’s review showed minimal tenderness over the lateral gastrocnemius muscle with deep pressure. He was able to complete a squat without assistance or pain. Dr Chang advised Mr Wang to start with 4 hours a day, 3 days a week, with a gradual increase to full time over a one month period. Dr Chang expected Mr Wang to be back to full time work by the next review, scheduled for 3 months post.
On 11 March 2021, Dr Chang reviewed Mr Wang nearly one year after his left leg injury. Dr Chang states: “I expect he should be back to working full-time by now”, and that “there is no physical reason why he cannot return to work except deconditioning”.
Acumen health rehabilitation closure report
This report is dated 15 December 2021. The original purpose of the referral was noted to be return to work with same employer. The interventions undertaken by Acumen were listed. The outcomes were noted to include an upgrade to full time capacity, an up-to-date resume and cover letter, and independence in job seeking.
It was noted that Mr Wang has completed the job seeking education modules and he had signed a competency checklist on 13 September 2021. Job seeking services were conducted by acumen health on 20 October 2021, 3 November 2021 and 17 November 2021.

Submissions

Submissions were provided at the teleconference and recorded. The below is a summary of the parties’ submissions.
Applicant’s submissions
The applicant’s submissions were brief.
The applicant submits that he cannot speak any English, and has had no retraining. The work with the respondent was his first job in Australia, where he worked for only 1 year and 3 months. He continues to suffer from pain and cannot lift or carry, and needs to avoid long periods of standing. Mr Wang has no local experience and the insurer has not provided English training or vocational retraining.
The applicant submits that it is unrealistic for him to locate any job in Australia. He continues to look for work but not jobs are available to him. The applicant is entitled to 80% of pre-injury average weekly earnings (PIAWE), and needs to receive retraining and language skills before returning to the open labour market.
Respondent’s submissions
The respondent referred to the work capacity dispute and two review decisions. Underpinning those decisions are the certificates of capacity issue by Mr Wang’s treating general practitioner and the restrictions place in those certificates. Mr Wang’s capacity is 8 hours per day, 5 days per week, and has consistently been that case, including since the issue of the work capacity decision.
The respondent discussed the vocational assessment report prepared by Acumen, and the roles identified, three of which were approved by the treating doctor. It was submitted that the role of product assembler gains prominence. The role meets the applicant’s medical requirements, requires no qualifications or previous experience, and is a position consistent with the certification in the certificate of capacity. When you consider the inherent requirements of the role, the job would be considered suitable and would generate an income of $1,120 per week.
The respondent disputes the applicant’s submission that he cannot speak English at all. This is not consistent with the worker’s statement where he describes his English as “limited”. The respondent notes that the applicant has been provided with occupational rehabilitation and job seeking assistance, with reference to the rehabilitation closure report of Acumen. He has signed the checklist and the end result is that Mr Wang is independent in job seeking. With reference to the applicant’s job seeking logs, it was noted that only one of the positions applied for was not suitable due to his English language ability.
The respondent referred to the Fitcare report and notes that according to that report realistically Mr Wang would be able to find work as a product assembler on reduced hours. The respondent refers to the reliance on the comments of Dr Chang, but notes in contrast that in March 2021 Dr Chang opined that Mr Wang should be back to work on a full time basis.
The respondent submits that as a best case scenario, the applicant can earn $336 working 12 hours per week, which would leave a weekly payment of $424 per week. However, it was submitted that regard should also be had to the opinion of the treating general practitioner and Dr Chang’s comments that the worker should be working on a full time basis.
The respondent submits that considering the vocational assessment report and the signoff by the treating doctor, the work capacity decision should be regarded as well reasoned and should be upheld.
Applicant in response
In response, the applicant submits that he needs formal retraining and English classes. His only chance for him to get back to the labour market is heavy physical work, and that would be easy for him to suffer a further injury. The applicant is eager to undertake English classes and retraining.
The applicant submits that in the open labour market, it would be unrealistic to find a job, and any employment is unsustainable.

Discussion

The definition of suitable employment in section 32A of the 1987 Act contains a list of relevant matters for consideration.
The nature of the incapacity
Mr Wang has been certified as capable of working in some kind of employment for 8 hours per day, 5 days per week. This certification has remained static for some time, and as the respondent points out, has not changed since the work capacity decision as issued (which often occurs).
Mr Wang’s certified restrictions include not standing more than two hours, with a rest break thereafter, and to avoid repetitive bending/squatting. Dr Tsia has approved of the role of product assembler as being suitable. Dr Chang, the applicant’s treating surgeon, initially indicated that Mr Wang could work for 12 hours per week, and then opined that he should be back to full time work.
These restrictions are, in the scheme of things, not particularly excessive and do not, in my view, present a significant barrier to employment in a general sense. It is clear that Mr Wang would be unable to safely complete his previous role, or many heavy labour type roles. Anything involving heavy lifting would be unable to be safely performed by Mr Wang due to his restriction on bending and squatting.
However, a 2 hour standing restriction is not extreme and the vocational assessment report indicates this could be accommodated by potential employers.
The worker’s age, education, skills and work experience
There are a variety of factors and contributors for consideration here.
Mr Wang’s age, at 42, should present no particular impediment to him obtaining suitable employment. The relevance of a worker’s age is not simply whether a worker would be employed by an employer based on their age (noting discrimination laws would prevent an employer rejecting a worker on this basis), but rather whether their age would come into factors such as retraining, adapting to new skills and the general age of the industry identified for employment. None of those factors are relevant for Mr Wang, who is in the middle of his employable working life.
In terms of education, this has all been undertaken in China. He has a Bachelor of Commercial Management. The qualifications obtained over there may be relevant to some roles in Australia, but based on Mr Wang’s current English language capabilities, those roles would be out of reach. The role of product assembler does not require any specific qualifications, and this factor is neutral for Mr Wang.
Mr Wang’s possesses some transferrable skills particularly suited to the role of product assembler. His employment in China in marketing did not involve any of the technical skills required as a product assembler, but would no doubt have required attention to detail and working individually and with others. Potential employers have identified these skills as desirable. Product assembly could not be regarded as a high skilled role, and again this factor is neutral for Mr Wang.
Mr Wang has limited working experience in Australia. His only role has been with the respondent for a period of just over a year. Again, work as a storeperson could not be considered a skilled role, but does require certain skills relevant to work as a product assembler. The major impediment to Mr Wang’s employment is his English language skills, which are described as basic at best. In his employment with the respondent, Mr Wang was not required to speak English, and communicated solely in Mandarin.
Rehabilitation services provided for the worker

The applicant’s submissions placed emphasis on this point on a number of occasions, although there was no specific reference made to the definition of suitable employment in section 32A.
It is clear that the applicant has been provided with rehabilitation services. The closure report attached to the reply sets out the scope of those services, including job seeking education and assistance.
It is true that the respondent has not provided Mr Wang with the specific services suggested by the applicant, such as English language courses and retraining. They have, however, attempted to assist Mr Wang in ways that best utilise his level of skill and preparedness to enter the market without further training, such as in supporting him through job seeking education and providing job seeking services.
There is no doubt that Mr Wang would be more employable in a wider labour market were his English language skills more advanced. However, that does not mean that the respondent has failed in their obligation to provide rehabilitation services. There exists a job market for Chinese language speakers. Mr Wang communicated solely in Mandarin whilst employed with the respondent and the Acumen closure report refers to Mandarin job seeking applications that Mr Wang would utilise to find work.

DECISION

Mr Wang is in an unfortunate position. He came to Australia, learnt some basic English, and was unemployed (although assisting with raising his child) for many years. Working in his first role in Australia, he suffered an injury and has not been able to return to work.
However, the issue before me is limited to whether Mr Wang can return to work in suitable employment. This consideration is based on quite specific requirements set out in section 32A of the 1987 Act. The applicant’s case and submissions before me did not particularly engage with the statutory test set out in section 32A or the interpretation of that section.
The main thrust of the applicant’s case is that Mr Wang has no English language capacity and he would be unable to find anything other than heavy lifting work, which would risk further injury.
In terms of the first consideration, I acknowledge that Mr Wang has limited or basic English language capacity, but it is not non-existent. He provides a statement in English (although no doubt prepared with the assistance of his Mandarin-speaking solicitors) and has self-described his language ability as basic on a number of occasions. The respondent appears to have been an employer specifically within Sydney’s Chinese community. Mr Wang only spoke Mandarin at work.
The ability to speak English must be regarded as a skill and thus falls within the definition of suitable employment in section 32A(a)(ii). This is a matter that I must have regard to.
I do not accept that basic English or even a lack of English prevents a worker from working in suitable employment. If that were the case, a proportion of workers in NSW must be considered unemployable. It certainly limits employment opportunities. However, there is a specific employment market available for workers such as Mr Wang. This is evidenced by Mr Wang’s pre-injury role, where he worked in an environment where only Mandarin was spoken, and the existence of specific, Chinese-language employment apps, that Mr Wang has been shown how to use, per the rehabilitation closure report.
In addition to the above, the role of product assembler, outside of onboarding and training, does not particularly require any language skills. The functional and cognitive requirements set out in the vocational assessment report do not mention any particular tasks that would require communication. The core duties involve manual work. None of the employers contacted advised communication skills were required, although an ability to work well with others was noted by the first employer. Mr Wang’s communication skills may impact on his ability here.
In terms of Mr Wang’s functional capacity, there seems to be consistent agreement that he is capable of working in some type of employment. Dr Tsia has approved the role of product assembler as suitable. I have doubts that the roles of process worker and pick packer would, in fact, be medically suitable for Mr Wang, although they have been approved by Dr Tsia. They appear to have a higher general physical demand level, although the specific employers contacted identified less significant requirements. However, the position relied on by the respondent is that of product assembler.
I find the reports of Dr Chang particular persuasive. She has encouraged Mr Wang to attend physiotherapy to better prepare for a return to work. She has pointed out to him that returning to work may involve some initial discomfort but that is normal. She first opined that he could work for 12 hours per week on a gradual return to work basis, over a one month period, and then opined that he should be fit for full time hours.
In my view the nature of Mr Wang’s incapacity is such that he is capable of working as a product assembler. The duties are light, do not involve extensive periods of standing (or have the capacity for switching between sitting and standing) and do not involve squatting or lifting from a floor level.
The applicant made submissions suggesting that greater rehabilitation support should have ben provided to Mr Wang. This a relevant consideration for suitable employment for the purposes of “any occupational rehabilitation services that are being, or have been, provided to or for the worker”. The applicant suggested that no services had been provided to the worker, but as discussed above, that was incorrect. In submissions in response, the applicant suggested that he should be provided with English language and vocational retraining.
The respondent has provided Mr Wang with job seeking assistance and provided formal job seeking services on a number of occasions. It would certainly be beneficial, in terms of employability, for Mr Wang to have greater English language skills. It would open up a wider available job market. Basic English, which Mr Wang possesses, is not an absolute barrier to obtaining suitable employment. This is evidenced by the fact that Mr Wang was working in a Mandarin language speaking environment until his injury.
I have been referred to no guidance on what the scope of the insurer’s responsibility is in terms of rehabilitation assistance. I do not think it is a matter that has been considered. In my view, based on reading the section in context, it is focussed on making a worker capable of work in suitable employment. That could extend to courses and retraining in some circumstances, for example where a worker would be required to change industries for medical reasons. Where someone was no longer able to work in heavy physical roles, and the only roles identified required reskilling, then this factor would be a relevant consideration.
The present matter is slightly different. The role of product assembler does not, by description and by advice from employer contacts require any specific skills. The challenge for Mr Wang is his ability to understand and communicate in English. This is potentially a bar to employment in one labour market (although noting that the role of product assembler does not require any communication). However, there exists a separate and identifiable labour market available to Mr Wang, and he has been provided with assistance in identifying suitable roles in that market (through the use of apps targeting the Chinese community).
In terms of retraining, the role of product assembler does not require any specific qualifications and the employers contacted did not indicate that qualifications were desirable. The fact that the insurer has not provided retraining is not relevant to the question of whether Mr Wang is capable of working as a product assembler.
Considering all of these factors, I am satisfied that Mr Wang is capable of working in suitable employment as a product assembler.
Mr Wang is certified fit to work 40 hours per week. He has been unemployed for some time now and is, apparently, deconditioned. Dr Chang initially suggested that he should return to work on a gradual basis to build up his capacity and conditioning, for 12 hours per week over a four-week period. In a later report it was suggested that Mr Wang should have been back to work full time.
Noting that Mr Wang has not returned to work and has not had the benefit of a gradual return to work, I am of the view that his capacity would initially be limited consistent with the report of Dr Chang from 3 November 2020. Following that period he would have capacity for 8 hours per day, 5 days per week, in employment in which he would be able to earn in excess of his PIAWE.
I agree with the respondent’s suggested calculations in that regard. Based on an earning capacity of $1,120, which is $28 per hour, Mr Wang would be able to earn $336 per week. This would equate to a loss of $424 per week.
Accordingly, I will make the following award:
(a) The respondent pay the applicant $424 per week pursuant to section 37 of the 1987 Act for the period 1 December 2021 (the date at which the work capacity decision took effect) until 29 December 2021.
(b) An award for the respondent thereafter.

[2022] NSWPIC 105

14 March 2022