Wood v Qube Logistics

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Wood v Qube Logistics [2022] NSWPIC 466
APPLICANT:	John Wood
RESPONDENT:	Qube Logistics Pty Ltd
Member:	Paul Sweeney
DATE OF DECISION:	22 August 2022
CATCHWORDS:	WORKERS COMPENSATION - By two work capacity decisions the insurer determined that the worker was capable of working 12 hours per week in selected duties for the remainder of the section 37 period of the Workers Compensation Act 1987 (1987 Act) and was not entitled to compensation in the third entitlement as he possessed a current earning capacity; on a consideration of the matters set out in the definition of suitable employment in section 32A of the 1987 Act; Held — the worker had no current earning capacity; work capacity decisions rescinded; award for the worker pursuant to sections 37 and 38 of the 1987 Act on the basis of total incapacity.
determinations made:	The Commission determines: 1. That the applicant lodge forthwith under cover of an Application to Admit Late Documents the documents exchanged and forwarded to the Member by email at the commencement of the arbitration hearing. 2. That the respondent pay the applicant weekly compensation pursuant to sections 37 and 38 on the basis that he has no current capacity for work from 13 March 2022 date and continuing until this award is terminated or suspended in accordance with the provisions of the Workers Compensation Act 1987.

BACKGROUND

John Wood (the applicant) is 60 years of age. He has worked as a truck driver during most of his working life. On 1 August 2019, in the course of his employment with Qube Logistics Pty Ltd (the respondent), he fell and suffered injury to his left ankle and left wrist. During his convalescence, he also developed a secondary psychological condition. The respondent accepted liability in respect of the applicant’s orthopaedic injuries and paid him compensation on the basis of totalling capacity pursuant to the Workers Compensation Act 1987 (the 1987 Act) until 13 March 2022.
By a work capacity decision dated 8 December 2021, the respondent’s insurer/scheme agent, Employers Mutual Limited (EML) determined that the applicant had a capacity to perform suitable employment for four hours per day three days a week as a medical/ pathology driver, light courier driver, or surveillance monitor. EML determined that the applicant was able to earn the sum of $330 per week in this employment which was suitable employment as that term is defined in s 32A of the 1987 Act.
As a result of the work capacity decision the applicant’s compensation was reduced on
13 March 2022 from $1,328 per week to $998 per week.
Subsequently, on 2 May 2022, EML advised the applicant that it had decided that his weekly payments of weekly compensation would come to an end on 27 June 2022 as by that date he would have received 130 weeks compensation and did not fulfil the special requirements of s 38 of the 1987 Act for receipt of further compensation.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly payments of compensation from
16 March 2022 on the basis of total incapacity. He alleges his incapacity for work results from the injury to his left ankle and a consequential secondary psychological condition.
At a telephone conference on 24 June 2022, the respondent conceded that the applicant’s secondary psychological condition resulted from the employment injury. Accordingly, the only remaining issues in dispute were the correctness of EML’s work capacity decisions that the applicant had a current earning capacity of $330 per week and that he did not fall within
s 38 of the 1987 Act. As it was not suggested that the applicant was a worker of high needs or fell within s 38 (3), the question for determination is whether the applicant had no current earning capacity and the lack of earning capacity is likely to continue indefinitely in accordance with s 38 (2).
When the matter came on for a conciliation conference and an arbitration hearing, Mr Steiner of counsel represented the applicant and Mr Grimes of counsel represented the respondent. Notwithstanding considerable prompting, the parties were unable to reach any mutual satisfactory resolution of their dispute at the conciliation conference. I am satisfied that I used my best endeavours to bring about resolution of the claim. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve the claim at the telephone conference and during the conciliation conference in the matter.

EVIDENCE

The documents before the Personal Injury Commission (the Commission) are as follows:
(a)    the Application to Resolve a Dispute and documents attached;
(b)    the Reply and the documents attached;
(c)    Applications to Admit Late Documents dated 17 June 2022 and 2 August 2022 and the documents attached, and
(d)    an Application to Admit Late Documents which was forwarded to me by email during the arbitration hearing and the documents attached.
There was no objection to the material contained in the documents referred to above at the arbitration hearing.

SUBMISSIONS

The submissions of counsel are recorded and I do not propose to reiterate those submissions in these short reasons. Both counsel referred to the opinions of the medical practitioners who had provided reports at the request of the parties. Mr Grimes took the Commission to the clinical notes of the general practitioners who had treated the applicant throughout the period since the injury. He submitted that the consistent certification of the applicant as fit for selected duties work by his treating general practitioner was cogent evidence of a work capacity.
Dr Pek, the applicant’s general practitioner had approved the duties of a medical/pathology driver, surveillance monitor, and light delivery driver, the vocational options which the respondent asserted constituted suitable employment for the applicant.
Mr Steiner attacked the basis of the information in the Beneco vocational assessment report. He argued that the failure of the company to produce in answer to a summons any documents relating to its communications with the potential employers referred to in the report undermined its integrity.
It will be necessary to return to these submissions when determining the issues in dispute. First, however, it is necessary to briefly review the critical evidence in the matter including the vocational assessment report on which EML based its work capacity decisions, the applicant’s evidence, and the opinion evidence provided by the medical practitioners who have treated the applicant or have provided medico-legal reports to the parties. What follows is not intended to constitute a full survey of the evidence in the matter. Rather, I set out the salient points so that the parties may understand the way in which the Commission has resolved the dispute.

Vocational Assessment Report of Beneco - Mr Nathan Lang

Mr Lang, a rehabilitation consultant, recommended that the applicant “be facilitated to locate new employment in the following”:
(a)    medical/pathology driver;
(b)    light courier driver, and
(c)    surveillance monitor.
He stated that to achieve those goals the applicant should be provided with coaching in job seeking skills and also be provided with some computer training “to ensure Mr Wood has basic computer skills”. The recommendations also noted that the applicant would require a 1E security license to be able to perform the role of a surveillance monitor.
Reaching these conclusions, Mr Long relied upon the certification of fitness for work by the applicant’s general practitioner, Dr Pek, the applicant’s employment history, and his account of his current capabilities. He noted that the applicant had expressed the desire to return to work but was “unsure in what role”. He also noted that he had “limited transferrable skills” as his only role had been as a truck driver for most of his adult life, and he had “limited computer and job seeking skills”.

Applicant

By a signed statement of 27 May 2022, the applicant described the incident in which he suffered injury on 1 August 2019. He states that in the act of kicking a jammed lock on a trailer with his right foot, he lost balance and fell injuring his left ankle and left wrist.
The applicant says that he was diagnosed with a fracture following an X-ray. Subsequently, his orthopaedic surgeon identified “further fractures in my left ankle/foot”. He was placed in a moon boot.
The applicant says that he returned to restricted duties after three months. He states:
“Because there were not really any light duties available to me, my return to work involved me sitting in the break room occupying myself.”
The applicant says that he has “great difficulty reading and writing to the extent where I am considered illiterate”. He states that he believes that is why the respondent did not wish him to undertake office duties on his return to work.
The applicant states that as he felt “worthless” and worried about his inability to return to truck driving he “started to suffer psychologically”. He sought treatment for this condition from Dr Benson Pek, who referred him to a psychologist and a psychiatrist.
The applicant says that in April 2021, he relocated to Chinderah on the far north coast of NSW to be closer to family. He states:
“I continued to suffer ongoing issues with my left ankle including pain and swelling even when rested but also after use, walking with a limp and limited range of movement.
My psychological injury continues to affect my wellbeing as I take antidepressant medication, and have a poor sleeping pattern, I am socially withdrawn and lack motivation.”

Dr John Albert Roberts

Dr Roberts saw the applicant at the request of the respondent on 14 April 2020. He apparently did not see the applicant. He stated that he would assume that the applicant’s injury had given rise to a secondary psychological injury. He expressed the opinion that treatment for such a condition would be appropriate. He thought that this was probably an adjustment disorder, which would benefit from the applicant returning “to useful activity”.
Dr Roberts stated that on psychiatric grounds he thought that return to work as a truck driver would be beneficial. He stated that as the applicant’s physical state improves “there would be no basis to assume that there would be any ongoing psychiatric/psychological difficulties”.

Dr Kirychenko

Dr Kirychenko is a general practitioner, who saw the applicant for an injury management consultation at Ballina on 28 May 2021. He recorded that the applicant was “very restricted”, walked with a limp and with pain and had difficulty walking on staircases. The applicant recorded that he was “only able to walk up two or three steps”. The applicant also reported that he was “very depressed” and required medication for this condition.
On examination, Dr Kirychenko observed that the applicant walked with a limp favouring his left ankle. He also found swelling around the left ankle. He expressed the opinion that the applicant sustained complex multiple fractures of the left ankle including the talus bone, the calcaneus and the cuboid bone. He opined that there also appeared to be tendonitis of the Achilles tendon.
After discussing the applicant’s condition with a physiotherapist, Mr Coleman, Dr Kirychenko expressed the opinion that the applicant’s physical condition had not resolved and he would have difficulty driving trucks/vans for even light deliveries if he had to negotiate stairs or any rough ground. Nonetheless, he stated:
“The work as a pathology delivery/pickup driver would be ideal for his skills and he may be able to perform full hours after a suitable work hardening period.
The vocational option of a surveillance monitor may be in doubt. Although he would have the physical capacity to perform the duties his psychological condition would present a problem.”
While he suggested that the applicant may well be able to perform the role of a courier, he noted that there was still the “barrier of a chronic physical symptoms and that the applicant’s psychological symptoms and educational level would also be a barrier”.

Dr Paul Robinson

Dr Robinson, and orthopaedic surgeon, saw the applicant on 30 November 2021 at the request of EML. On examination Dr Robinson found that the applicant was able to walk on his heel and toes but had a “decreased capacity to do so on the left side”. He found reduced movement of the left ankle. The doctor reviewing the radiology comment he accepted that the applicant had fractures of the calcaneus and cuboid in the accident. He stated that these were not “of a major nature with any serious displacement”. He also noted a suggestion of plantar fasciitis. He continued:
“At this stage I would consider that he certainly does not require any operative intervention as this may worsen his continuing psychological problems which have been well documented in the information forwarded to me by his psychiatrist and also Sean Dixon – psychologist. I believe that at this stage – over two years following the injury his situation is at maximum medical improvement and it would be an advantage for him to have his case closed if such was possible.”
Dr Robinson thought that the applicant could undertake work in a sedentary position commencing three hours, three days per week. He thought that it would be advantageous for him to be able to work. He said that he would defer to Dr Noore, the treating psychiatrist, in respect of the applicant’s psychological condition.

Dr Trevor Lotz

Dr Trevor Lotz, a psychiatrist, saw the applicant at the request of his solicitors and provided a report of 21 March 2022. He recorded that the applicant was illiterate and struggled to read or write. He recorded that the applicant had always worked as a truck driver and “due to his limited education, this was the only employment he could do”. The applicant said that he had good and bad days but was “generally depressed with anergia, and anhedonia, social withdrawal and a poor libido”. He said that following the injury he started to use alcohol excessively but with the encouragement of his treating psychiatrist “this has now reduced to six beers a week”.
In respect of the applicant’s capacity to work, Dr Lotz says this:
“Despite intensive treatment by psychiatrist, Dr Noore, and the ongoing use of antidepressants, Mr Wood described symptoms and demonstrated signs of ongoing depressive disorder.
In my opinion he does not have the capacity for any suitable employment and his incapacity is likely to continue indefinitely.”

Dr Neil Cleaver

Dr Cleaver, an orthopaedic surgeon, provided a report dated 2 April 2022 to the applicant’s solicitors. He also recorded that the applicant was illiterate. After examining the applicant’s left ankle, he diagnosed an avulsion fracture of the dorsum of the left foot, an ATFL ligament strain, and Achilles tendinosis of the left foot. He expressed the opinion that the applicant would have the capacity to work in a purely sedentary role performing administrative duties sitting at a desk. He added that any such role “would have to accommodate his illiteracy”. In respect of the particular job classifications said to be suitable, the doctor said this:
“I have reviewed the roles of a delivery driver, a general clerk and a pathology courier and I have considered whether John is capable of performing them part time or full time. I have come to the conclusion that he is not. Working as a pathology courier driver would be the more suitable of the three being barely laborious on the appendicular skeleton. I would not wish to have sensitive medical specimens transported by a disabled driver who is illiterate. No matter the fact that illiteracy has nothing to do with this claim, working with sensitive medical materials requires a considerable amount of paperwork, checking, fact checking etc and John is clearly not suitable for this.
The general duties working as a delivery driver are sufficiently laborious on the appendicular skeleton to make me offer an opinion that to attempt to return John to work in this mode of employment would be associated with a close to 100% propensity for unnecessary and complicated workers compensation claims.
Generally, and overall, John is close to mandatory retirement age, and has had a significant injury to his left foot and has worked stoically in the same position for almost 40 years. Common sense dictates that retraining and re-educating is a futile task.
Option two in the vocational assessment is working as a surveillance monitor, which carries with it the same level of pessimism as a result of John being illiterate. I was not able to find any vocational assessment associated with the general duties of being a general clerk.”

Dr Andrew Porteous

Dr Porteous, an occupational physician, provided a report to the applicant’s solicitors of
11 April 2022. He recorded that the applicant had significant pain in his left foot when standing or walking on it. He reported that the pain disturbs his sleep. On examination he walked with a limp. Dr Porteous expressed the opinion that despite treatment the applicant had “chronic pain in the area of his left foot and ankle”.
Dr Porteous also considered the report of the “medico-vocational assessment” and its recommendations in respect of employment. He said this:
“I note that both from a physical chronic pain point of view and from a psychological point of view, his condition has reduced his clear capacity to the point that he is, in my opinion, unfit to drive in a commercial situation and would not meet the medical criteria to drive either as a Light Courier Driver or Medical/Pathology Driver because of the above. I note that the Assessor has not taken into consideration the health and safety requirements of fitness for duties in these positions. I also note, in my opinion, that in these there would be significant walking and standing over a whole day involved which he is restricted from and in my opinion, therefore he is clearly incapacitated from those positions.”
Dr Porteous specifically stated that he also thought that the applicant was psychologically incapacitated for all work. He stated that further comment should be obtained from the treating psychiatrist. He stated that he disagreed that the applicant had the capacity to perform any of the jobs identified by Beneco

Discussion and finding

It is true, as Mr Grimes argued, that at the time of EMLs decision to reduce his payments on 8 December 2021 there is an absence of evidence from the treating medical practitioners that the applicant had no current capacity for employment. Conversely, his general practitioner and treating psychiatrist/pain management specialist both acknowledged by their responses to Beneco that the jobs identified in the vocational assessment report were suitable for the applicant. A review of the applicant’s medical treatment provides some insight into how this came about and how the applicant’s certification changed after he saw Dr Follent on 31 March 2022.
On 13 March 2020, the applicant’s general practitioner, Dr Pek, referred him to Dr Bassam Moses, a sports physician, who treated him with a corticosteroid injection. On
3 December 2020, Dr Moses reported that the applicant’s symptoms had settled following the injection, although he was still complaining of Achilles tendonitis. On 20 January 2021, Dr Moses saw the applicant again and reported that:
“He continues to see progress both with his ankle and his Achilles tendon. He is now performing concentric exercises on a step with body weight. With this in mind, I have made no plans to review him and left him in your capable hands but if there is anything I can help with if he plateaus then I am more than happy to see him and further investigate either his ankle or his Achilles tendon.”

While the applicant had physiotherapy treatment after that time, it is not evident that he has had further specialist treatment for his physical injuries. He has, however, remained under the care of Dr Faiz Noore, a psychiatrist and pain management specialist, who diagnosed chronic left ankle and foot pain and a major depressive disorder related to the work injury. He also diagnosed alcohol use disorder on the basis of a history that the applicant had substantially increased his intake of alcohol since the injury. Dr Noore treated the applicant with psychotherapy, Sertraline, and pain education. The applicant’s psychological condition appears to have fluctuated.
Dr Noore continued to treat the applicant by telephone after his relocation to the far north coast. On 19 May 2022, he provided a report to Dr Wade (Dr Wai?) at the Tweed Banora Medical Centre relating to consultations with the applicant on 17 March, 27 April and
12 May 2022 all of which were conducted over the telephone. By that report, he diagnosed:
(a)    chronic left ankle and foot pain;
(b)    major depressive disorder;
(c)    work related medico-legal/relocation and reemployment stressors, and
The doctor said this:
“Mr Wood appears to have fluctuating left ankle and foot pain. He is coping well with the pain. His depression remains in remission. He is relieved to have received favourable recommendations from independent medical examiners in psychiatry, orthopaedic surgery and occupational medicine. He has recovered well from a Covid-19 infection. He is also relieved that his infant grandson has recovered well from major abdominal surgery at Sydney Children’s Hospital in Randwick.
Over the telephone he was alert, fluent, reactive and euthymic. He is thinking logical, coherent and goal directed. He had good insight and judgement.”
Dr Noore expressed the opinion that there had been improvement in the applicant’s mental health associated with “reducing medico-legal and family stress”. Nonetheless, he thought that the applicant should continue to undergo pain education and supportive psychotherapy and stated that he would review him again, presumably over the telephone, in a month.
For several months prior to 29 March 2021, Dr Pek had certified the applicant as fit for some type of work. On 29 March 2021, he certified the applicant as fit for work for four hours a day, three days per week for a period of four weeks. He stated that the applicant should avoid ladders, prolonged walking in excess of 30 minutes and if skilled could work in an office, although he was unable to return to his pre-injury role with the respondent. He noted that one of the factors impeding recovery was “lack of psychological capacity”. He suggested that the respondent should be guided by Dr Noore’s opinion in that respect.
Dr Pek continued to certify the applicant in these terms until the end of 2021, after the applicant relocated to Chinderah. His final consultation with the applicant was by telehealth on 6 December 2021. He recorded that the applicant still complained of chronic left foot pain, major depressive disorder, and illiteracy “(which makes finding alternative employment for him difficult)”.
Dr Pek noted that the applicant was still seeing Dr Noore for his depression and that
Dr Noore had advised the applicant to explain to his rehabilitation providers that “he has very poor literacy”. Although the source of the following information is unclear, Dr Pek recorded the following:
“This disability is a significant barrier to getting a job
no significant further improvement expected
capacity limited for some time at certified levels (based upon self report).”
On his relocation to Chinderah, the applicant saw Dr John Wai at the Tweed Banora Medical Centre for treatment of his ankle. Dr Wai issued WorkCover certificates on 3 January 2022 and 3 February 2022. On 5 March 2022, he noted that there was “nil change in situation”.
On 31 March 2022, the applicant saw Dr Follent in the same practice. On 9 May 2022,
Dr Follent noted that the applicant’s capacity to perform selective duties “should reduce from 12 hours to 0”. On 9 June 2022, he provided a report to the applicant’s solicitor by which he stated that he had read the Beneco vocational assessment report. He expressed the following opinion in relation to the duties recommended in that report:
“They are very similar with only minor differences between the roles. I don’t believe
Mr Wood is fit to do any of those roles based upon the fact his ankle condition would be exacerbated leading to further stress and anxiety and depression. This would place him at risk of harm to himself or others.”
Dr Follent expressed the opinion that based upon his training and educational level, he did “not believe that there is any suitable employment for him”. It was on this basis that his work capacity was reassessed and the applicant certified as having no current capacity.
Section 32A of the 1987 Act defines suitable employment as follows:
“suitable employment", in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
The late Deputy President Roche discussed this definition in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (2 September 2014). At [55] to [60] he said this:
“55. This approach was consistent with the High Court’s decision in Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171, where Mason, Wilson, Deane and Dawson JJ said (at 178) that “the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work” (emphasis added).
56.   It is the emphasised words in the two preceding paragraphs that have effectively been eliminated by the directions in s 32A that employment for which the worker is currently suited is determined “regardless of” whether the work or employment is “available” and regardless of whether it is “of a type or nature that is generally available in the employment market”. However, other aspects of Lawarra Nominees and Woods remain relevant in determining whether a worker is “suited” for suitable employment.
57.   There is nothing in the context of the definition of suitable employment to suggest that “available” should be given anything other than its relevant dictionary meaning. The third meaning attributed to “available” in the Shorter Oxford English Dictionary (Oxford University Press, 6^th ed, 2007) is “[a]ble to be used or turned to account; at one’s disposal; within one’s reach, obtainable”. Thus, just because the suitable employment the worker is able to perform is not “available” in the labour market in which the employee was working or might reasonably be expected to work does not justify a finding that the worker has no current work capacity.
58.   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).
59.   The word “employment” is not defined in the legislation. Its common meaning is “the state of being employed”. However, “worker” is defined. It means, subject to specified exclusions, “a person who has entered into or works under a contract of service or a training contract with an employer” (s 4 of the 1998 Act). In context, the phrase “employment in work”, in the definition of suitable employment, “in relation to a worker”, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
60.   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.”

Shortly before Dr Follent certified that the applicant had no current earning capacity, Dr Lotz, the psychiatrist, expressed a similar opinion in his report of 22 March 2022. In the following month both Dr Cleaver, the orthopaedic surgeon, and Dr Porteous, an occupational physician also expressed similar opinions. Thus, before the expiry of the second entitlement period, there was a strong body of medical evidence to the effect that the applicant could not work in any capacity.
Mr Grimes argued that I should prefer the opinions of the initial treating doctors to the medicolegal opinions expressed by the three specialists qualified in the applicant’s case.
Dr Pek and Dr Noore had treated the applicant over a long period of time and were in a better position to express an opinion as to his capacity for work than medical practitioners who have only seen the applicant on one occasion. Further, the opinion of Dr Pek was consistent with the views expressed by Dr Kirychenko and Dr Robinson. However, I doubt that I can so easily reject the opinion of an occupational physician. Dr Porteous’ specialty involves, inter alia, assessing the suitability of patients for particular employments.
It is not entirely clear why the applicant continues to suffer disabling symptoms in his foot and ankle. Dr Robinson suggested that the multiple fractures suffered by the applicant were “not of a major nature”. None the less, he thought that the applicant should work in a sedentary position commencing at three hours per day. That suggests that he accepted that the applicant had a significant ongoing disability in his foot more than that two years after the injury. He referred to the possibility of plantar fasciitis. Other doctors have diagnosed a concurrent Achilles tendinitis.
Whether the applicant’s symptoms are largely determined by the physical sequelae of the injury or by a consequential pain syndrome or are influenced by his depressive state, there is little doubt that they continue to be very disabling. It was not suggested at the arbitration hearing that the applicant was an unreliable witness or that I should reject all or part of his evidence. It is true that it was put that the applicant’s ability to work as a truck driver over many years was indicative that he was sufficiently literate to work as a courier. However, it was not argued that he did not have the symptoms of which he complained in his statement or to medical practitioners. I would add that despite his educational limitations, the applicant appears to have an impeccable work history over some 40 odd years. That suggests that it is unlikely that he is a man who would shirk employment if it was available.
By his statement, the applicant says that he continues to limp and has ankle pain and a very restricted ability to walk painlessly. He has complained of an inability to negotiate more than a few steps and a significantly reduced range of movement. The medical practitioners who have seen the applicant this year have all recorded that he walks with a limp. In the circumstances, I believe there is considerable force in Dr Porteous’ opinion that the applicant would not meet the medical criteria to perform the work of a courier from an occupational safety perspective. He is well qualified to express this opinion and it is not contradicted by other expert opinion.
At the arbitration hearing, I expressed a preliminary view that it was highly unlikely that a barely literate 60 year old man would be permitted to transport medical specimens. I note that Dr Cleaver expresses that view in his report. I suspect his opinion that the transport of medical specimens/material involves a considerable amount of paperwork for which the applicant is not suitable is founded on his years of medical practice. Equally, there is no satisfactory evidence that the applicant is sufficiently literate to obtain the necessary license or to perform the work of a surveillance monitor. Additionally, a number of doctors have expressed the opinion that the applicant is not suited to this work by reason of his psychological condition.
Section 32A(b) specifically directs the attention of the Commission to the evidence in a certificate of capacity finished by workers when determining the suitability of employment. That, however, is part of general reference to “details provided in medical information” relevant to that issue. While the evidence of general practitioners is always of considerable importance, in some circumstances it is necessary to prefer specialist opinion. I have reached the conclusion on the basis of the evidence of Dr Porteous and Dr Cleaver that physically the applicant is only capable of performing sedentary work. By reason of his lack of literacy, he is not capable of sedentary work.
It follows that the applicant is not fit to perform any of the three jobs relied on by EML in its work capacity decision of 8 December 2021 and that the applicant has had no current earning capacity from the that time until the present. The remaining issue for determination is whether the Commission can be satisfied that the incapacity is likely to continue indefinitely as required by s 38(2).
The word “indefinitely” in the context of the section probably requires a positive finding that it cannot be specified or predicted on the evidence when the incapacity might end. The Macquarie Compact Dictionary, eighth edition relevantly defines “indefinite” to mean “not definite; without fixed or specified limit and unlimited: an indefinite number”.
The applicant is 60 years of age. It is common knowledge that older workers of are less likely to recover from injury than their younger colleagues. He has experienced continuous problems with his left foot for a period that now exceeds three years. It is not suggested in any of the medical evidence that the applicant is likely to soon recover from his affliction. It is equally unlikely, in my opinion, that the applicant’s capacity will be enhanced by further training or education. Accordingly, I find that his incapacity is likely to continue indefinitely.
Given these findings, it is unnecessary to resolve the issues raised by Mr Steiner’s criticism of Beneco’s failure to produce any documentation evidencing the conversations it’s employees or agents had with potential employers. It is, however, extraordinary that no documentation whatsoever exists of these conversations. I have had grave doubts about the utility of receiving evidence of conversations with unidentified employees of unidentified employers for some time. As this evidence cannot be tested, it seems to me that it is entitled to little if any weight. But as these important matters were only addressed fleetingly at the arbitration hearing, and as it is unnecessary to resolve them in this case, they can be left for another day.
I propose to find that the applicant possessed no current capacity for work as that phrase is used in s 32A of the 1987 Act from 13 March 2022 to date. The work capacity decisions the subject of these proceedings are rescinded. I order the respondent to pay the applicant weekly compensation on the basis of total incapacity from 13 March 2022 to date and continuing until the award is terminated or suspended in accordance with the provisions of the 1987 Act.

[2022] NSWPIC 466

22 August 2022