Zahab v Toll Transport Pty Ltd t/as Global Logistics

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Zahab v Toll Transport Pty Ltd t/as Global Logistics [2022] NSWPIC 505
APPLICANT:	Belal Zahab
RESPONDENT:	Toll Transport Pty Ltd trading as Global Logistics
Member:	Cameron Burge
DATE OF DECISION:	13 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits for total incapacity; fact of injury not in issue however the respondent alleges effect of any injury has passed and the applicant has no incapacity; Held – as to injury; the applicant’s injury consisted of a frank disc protrusion at L5/S1 the effects of which are ongoing together with ongoing aggravation of other pre-existing lumbar changes; the contention of the respondent that the injury was wholly an aggravation and that the effects of it had passed is not made out; the factual material relied on by the respondent whilst taken into account is not sufficient to outweigh the objective radiological evidence which demonstrates the ongoing presence of the disc protrusion and of degenerative changes; the opinion of the respondent’s Independent Medical Examiner (IME) that the effects of any aggravation have passed was a bare ipse dixit statement (an unfounded assertion) which did not consider any of the updated objective evidence nor provide a cogent reason as to why the aggravation had passed; as to incapacity; the applicant’s contention that he is totally incapacitated for employment is not made out; the factual material relied on by the respondent together with the applicant’s own evidence provided by his brother demonstrates a residual capacity for employment; the respondent’s contention the applicant has no residual incapacity whatsoever is not made out; notwithstanding reservations surrounding portions of the applicant’s evidence the objective radiological evidence together with treating and IME opinion on balance proves the applicant has ongoing partial incapacity for employment assessed at $743.08 per week; respondent ordered to pay the applicant weekly compensation from 21 March 2022 to date and continuing at the rate of $1,061.72 per week.
determinations made:	1. Leave is granted without objection to amend the Application to Resolve a Dispute as follows: a. to amend the applicant’s pre-injury average weekly earnings to $2,256 per week, and, b. to claim weekly compensation from 21 March 2022 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $1,804.80 per week, being 80% of the applicant’s pre-injury earnings. 2. The applicant suffered an injury to his lumbar spine in the course of his employment with the respondent on 1 August 2021. 3. The injury referred to in (2) above consisted in part of a frank injury to which the applicant’s employment was a substantial contributing factor and in part an aggravation of underlying degenerative changes in the applicant’s lumbar spine to which his employment was the main contributing factor. 4. At the date of injury, the applicant’s pre-injury average weekly earnings were $2,256 per week. 5. As a result of the injury referred to in (2) above, from 21 March 2022 the applicant has suffered and continues to suffer partial incapacity for employment. 6. The applicant’s residual capacity for employment is $743.08 per week. 7. Pursuant to s 37(3)(a) of the Workers Compensation Act 1987, the respondent is to pay the applicant weekly compensation from 21 March 2022 to date and continuing at the rate of $1,061.72 per week.

STATEMENT OF REASONS

BACKGROUND

Belal Zahab (the applicant) suffered an injury to his lumbar spine while in the course of his employment as a truck driver with Toll Transport Pty Ltd trading as Global Logistics (the respondent) on 1 August 2021. The fact of that injury is not in dispute, and on 5 August 2021 the applicant underwent a CT of his lumbar spine which showed a mild L5/S1 disc bulge.
The applicant consulted treating specialist Dr Maniam on 21 August 2021, who confirmed the presence of the L5/S1 disc bulge with irritation of the S1 nerve root along with aggravation of pre-existing degenerative changes in the lumbar spine.
In or about November 2021, the applicant returned to work for several three-hour shifts performing sedentary office duties, however, he states those duties aggravated his injury and since that time the applicant has been certified by his general practitioner (GP) as unfit for any employment.
The respondent’s independent medical examiner (IME) Dr Deshpande opined in a report from December 2021 that the applicant’s injury was by way of an aggravation which would have resolved within three months. For his part, the applicant contends the return to work was too soon and his modified duties further aggravated his injury.
On 1 March 2022, the respondent issued a s 78 Notice declining liability on two relevant bases, namely that in accordance with Dr Deshpande’s opinion the effects of any injury had passed, and secondly that the applicant has no incapacity for employment as a result of the injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant continues to suffer an injury to his lumbar spine, and
(b) if so, does the applicant suffer any incapacity as a result of that injury, and if so to what extent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The parties attended a hearing on 8 August 2022. I am satisfied that the parties to the dispute understand the nature of the Application and of the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, Mr Robison of counsel instructed by Mr Tohme appeared for the applicant. Mr Jones of counsel instructed by Ms Bauer appeared for the respondent.
At the hearing, the applicant was granted leave without objection to plead the applicant’s pre-injury average weekly earnings (PIAWE) at the rate of $2,256 per week, and to amend the claim for weekly benefits for alleged total incapacity for employment to commence on and from 21 March 2022 to date and continuing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s Application to Admit Late Documents (AALD) and attached documents dated 23 June 2022;
(d)    applicant’s AALD and attached documents dated 8 July 2022, and
(e)    respondent’s AALD and attached documents dated 2 August 2022.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant continues to suffer an injury to his lumbar spine

On the balance, for the following reasons I am satisfied the applicant suffered and continues to suffer injury to his lumbar spine as a result of his employment with the respondent.
The applicant has the onus of proving he suffered an injury in the course of his employment to which that employment was a substantial contributing factor or, in the event of an aggravation to an underlying condition, the main contributing factor to the aggravation.
The authorities make it clear that in establishing injury, it is necessary for a worker to demonstrate a sudden or identifiable pathological change to the impacted body system: see for example Castro v State Transit Authority (NSW) [2000] NSW CC12 (Castro).
An applicant may rely on injury simpliciter despite the presence of an underlying disease process: see Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (Zickar), where a worker successfully relied on the rupture, at work, of a congenital aneurism. As Toohey, McHugh, and Gummow JJ noted in that matter:
“A sudden identifiable physiological change to the body brought about by an internal or external event can be a personal injury, and the fact that the changes connected to an underlying disease process does not prevent the injury, being a personal injury.”
In this matter, the applicant’s treating surgeon Dr Maniam classified the relevant injury as follows in his report dated 31 August 2021:
“i.      intervertebral disc bulge at L5/S1 with irritation of right S1 nerve root;
ii.      aggravation of pre-existing degenerative disease in the right sacroiliac joint, and;
iii.      aggravation of pre-existing degenerative disease in the facet joints at L5.”
The applicant underwent an MRI of his lumbar spine on 30 August 2021, upon which Dr Maniam reported as follows:
“At L5/S1, there is loss of intervertebral disc space and there is a broad-based disc bulge extending into the neural exit foramen. There is mild encroachment on the extra-foraminal L5 nerve roots, slightly more prominent on the right, and there is also mild encroachment on the origins of the S1 nerve roots.”
For the respondent, Dr Deshpande IME provided a report dated 6 January 2022. In that report, he agreed with Dr Maniam that the applicant had suffered a work-related aggravation of underlying degenerative conditions. Dr Deshpande’s opinion, however, differed from Dr Maniam in that he also attributed the disc bulge at L5/S1 seen on the imaging to degenerative changes rather than any frank trauma associated with the accepted injurious event.
Dr Deshpande characterised the applicant’s injury as a work-related aggravation to the lumbar spine, “but the aggravation has now ceased as Mr Zahab is not performing his pre-injury duties”. Dr Deshpande accepted the applicant’s employment was the main contributing factor to the aggravation, however, “normally such an aggravation would resolve in three months following injury”.
Dr Deshpande provided a supplementary report dated 18 February 2022 which provided comment on factual material provided to him and on the applicant’s symptoms demonstrated on examination, but no further comment was made by Dr Deshpande in that report as to the presence or the aetiology of injury itself.
In relation to the question of injury, the opinion put forward by Dr Deshpande is one commonly seen in this jurisdiction. However, absent some explanation as to why the effects of an accepted aggravation have ceased, Dr Deshpande’s opinion amounts to nothing more than a bare ipse dixit statement as to the cause of any ongoing difficulties suffered by the applicant. Dr Deshpande simply asserts that the effects of any aggravation must have ceased because the applicant is no longer carrying out work-related duties. That view, however, does not address the fact the aggravation at issue has not been caused by the nature and conditions of employment, but rather by a specific incident said to have given rise to the applicant’s injury.
There is no challenge in this matter to the alleged mechanism of injury or that it arose from a specific incident. The applicant’s unchallenged evidence as to the injury is set out in his statement as follows:
“5.     At around 5:30AM on 1 August 2021, I was pulling a pogo stick from the back of my truck when I felt a sudden jolt of pain in my lower back. I thought the pain would go away after taking some Panadol, so I continued working.
6.      The next day at work, I did my first delivery and felt that my lower back was really tight and stiff. I then reported my injury.
7.      On 5 August 2021, I consulted with my GP Dr Kenan Ismail of Aya Medical Centre who sent me for a CT scan and diagnosed me with a disc lesion at the L5/S1 region. I was referred to orthopaedic surgeon Dr Maniam.”
In my view, Dr Deshpande’s report contains no meaningful explanation at all as to why the accepted work-related aggravation to the applicant’s lumbar spine would have ceased. It is no answer to the alleged presence of an aggravation to simply assert an absence of work-related duties means the aggravation caused by employment – whether caused by the nature and conditions of employment or by a frank incident – has stopped. There must be some meaningful explanation as to why this would be the case in the specific circumstances of the matter at issue, having regard to the totality of the evidence.
That is particularly the case when one has regard to a further MRI taken on 3 February 2022, which establishes the following:
“L4/5: there is mild to moderate joint arthropathy bilaterally, slightly worse on the left.
There is very minor central disc protrusion, which results in minimal central canal narrowing. The neuroforamina are patent with no evidence of nerve root impingement.
L5/S1: there is moderate intervertebral disc degenerative change characterised by disc space narrowing, discal herniation into the L4 endplate, osteophytic lipping and annular fissuring. This results in a broad-based disc bulge, which result in mild central canal narrowing and potential irritation of the descending S1 nerve roots bilaterally. In addition, there is central disc protrusion inferior to the disc bulge measuring approximately 6.5 x 2.5 mm but there is no contact on the descending nerve roots.
At the neuroforaminal levels, there is minor foraminal narrowing but no evidence of nerve root impingement.
There is mild to moderate facet joint arthropathy bilaterally.”
The findings of that MRI are, in my opinion, consistent with the complaints of ongoing problems made by the applicant since the date of injury. There is also no suggestion the applicant was symptomatic in his lumbar spine before the injury.
Moreover, Dr Deshpande did not have the benefit of the MRI taken on 3 February 2022 which showed the ongoing presence of a disc bulge at L5/S1 with potential irritation of the S1 nerve roots bilaterally. That finding is, in my view, consistent with the ongoing complaints of lumbar spine problems by the applicant. That MRI is broadly consistent with the views of Dr Maniam and those of the applicant’s IME Dr Gehr, that there are effects of the aggravation to the previously asymptomatic lumbar spine remain ongoing.
As already noted, Dr Maniam is of the view the disc bulge at L5/S1 was caused by the traumatic incident on 1 August 2021, rather than by degenerative changes to the applicant’s lumbar spine. In commenting on the findings of the MRI dated 30 August 2021, Dr Maniam opined they were consistent with a traumatic event, and that “in the absence of any degenerative changes, the protrusion seems to be trauma induced”. In my view that comment should be given considerable weight in these proceedings, because Dr Maniam had at his disposal the second MRI. Dr Deshpande did not. On balance, I find that opinion compelling and well-reasoned, referencing as it does the most recent objective radiological material.
Dr Maniam’s opinion regarding the disc protrusion is supported by the applicant’s IME Dr Gehr. He expressly disagrees with Dr Deshpande’s views regarding the applicant’s injury being purely one of aggravation and sets out his reasons as follows:
“Dr Deshpande correctly pointed out that views of the imaging shows that disc degeneration can start as early as 30 years of age in humans.
He also states the water content on the nucleus pulposus diminishes with age. He also points out there is desiccation and also collapse of the IV disc.
Overall, with respect, I do not disagree with this. However, my further review of his MRI dated 3 February 2022 shows a quite significant disc rupture at L5/S1 with posterior extrusion. This is a lot more and can be seen in the above disc. It is my opinion that a degree of disc extrusion as shown on that imaging is related to the subject accident and not to whatever changes may occur with age. We still should remember that he is 37 and I would not expect to see such marked disc changes related to age. The much more likely and sensible reason for this is the subject accident.”
To the extent there is a discrepancy regarding the cause of the applicant’s disc protrusion at L5/S1, I find in favour of the views of Dr Gehr and Dr Maniam, namely that the protrusion was a frank injury caused by the injurious event at issue. Dr Gehr, in supporting the view of Dr Maniam as to the aetiology of the disc protrusion, deals with the radiological evidence in a detailed and well-reasoned manner which explains why the disc protrusion should be considered traumatic in nature rather than the product of degenerative changes, namely that the changes at L5/S1 are demonstrably more serious and different to those in the adjacent joint spaces, which have suffered milder degenerative changes.
In reaching that finding, I note Dr Maniam is a treating surgeon and that, absent some demonstrable error on his part, his opinion carries significant weight. This is especially so when he has plainly taken into consideration the possibility of aggravation to pre-existing changes as the cause of the applicant’s injury, and he indeed agrees that is the case at other levels of the applicant’s lumbar spine.
As noted, there is no suggestion the applicant had symptomatic lumbar spine issues before the date of injury. I find it unlikely that the applicant would have been able to carry out his duties as a truck driver before the injury at issue had he been suffering from a pre-existing disc bulge impinging on adjacent nerve roots.
Additionally, I find Dr Gehr’s characterisation of the nature of the disc protrusion at L5/S1 compared with changes in the adjacent disc spaces to be compelling and persuasive in that the L5/S1 findings of disc extrusion are more severe than one would otherwise expect in a man of the applicant's age (37) given the degree of change seen in the adjacent disc spaces.
On balance, I therefore find that the applicant suffered a frank injury by way of L5/S1 disc protrusion in the incident at issue, together with an aggravation of underlying degenerative changes in adjacent levels of his lumbar spine.
Given the respondent’s own IME Dr Deshpande accepts the aggravation was work-related, I have no difficulty in accepting as a question of fact that the applicant’s employment was the main contributing factor to the aggravation of the other lumbar spine pathology found by all doctors, treating and IME, at the adjacent levels of the lumbar spine. Given I have found the disc protrusion at L5/S1 to have been caused by the frank incident on the date of injury, it follows the applicant’s employment was a substantial contributing factor to the development of the L5/S1 disc protrusion.
As already stated, I reject Dr Deshpande’s ipse dixit statement that the applicant’s aggravation would have ceased within three months and prefer the views of Drs Maniam and Gehr that the effects of the applicant’s injury are ongoing.
The presence of the factual material in this matter showing the applicant undertaking some truck maintenance together with actively pursuing an exercise regime at a local gymnasium goes more to the question of capacity and cannot in my opinion overcome the objective radiological evidence which plainly shows the continued presence of the disc protrusion and the ongoing aggravation of previously asymptomatic changes in the applicant’s lumbar spine. The question of whether the applicant is exaggerating his symptoms and whether he has incapacity is a separate one to whether there is an ongoing injury.
Although the factual material is something which I have taken into consideration in determining the presence or otherwise of injury, the weight which I ascribe to it is insufficient to overcome the objective radiological evidence of ongoing disc pathology. Such pathology is not capable of exaggeration or imitation.
For the above reasons, I am satisfied the applicant suffered injury to his lumbar spine in the course of his employment with the respondent on 1 August 2021 and that the injury remains ongoing.

Capacity for employment

As already stated, the mere presence of an injury does not establish incapacity, and in this matter, there is significant factual evidence which calls into question the applicant’s degree of incapacity and the veracity of his ongoing complaints regarding his ability or otherwise to carry out paid employment.
The applicant claims he is totally incapacitated for employment as a result of his injury. For the following reasons, I reject that claim.
The worker carries the onus of proving that his or her economic loss results from incapacity arising from their injury, rather than from general economic conditions or other factors: Mills, CP (1979) Workers Compensation (NSW), second edition, Sydney, Butterworths at W190 (Mills).
When determining incapacity, an assessment must be made as to what work the applicant would have been able to carry out had he remained uninjured, and his capacity to earn post-injury. It is not simply an incapacity for the applicant’s pre-injury work, but consideration must be had to whether the applicant has any capacity for any type of employment, taking into account his qualifications, skills and experience.
A worker is totally incapacitated when, as a result of their injury, their labour is unsaleable on the open market. A worker is partially incapacitated when, as a result of their injury, their labour is saleable for less than what it was before they were injured.
As was noted in Ric Developments trading as Lane Cove Poolmart v Muir [2008] NSWCA 155 (a case decided before the 2012 amendments, but which remains relevant for the purposes of setting out this general principle):
“The question is whether the injury has left the worker in such a position that his earning capacity is less than it was before the injury (Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 per Starke J, and it is not limited to the effect on his capacity for his former work (per Dixon J).”
It is therefore apparent that incapacity is not determined by whether an injured worker can perform their pre-injury duties. Rather, the incapacity is for work on the open labour market compared with what they could perform prior to the injury.
Incapacity and its degree are questions of fact and, on the determination of a fact, opinion evidence is admissible if it is expert, such as that contained within medical reports or vocational assessment reports. However, the admissibility of such opinion evidence does not alter the fact that in a civil jurisdiction a question of fact is determined by the tribunal on the balance of probabilities. That is, the tribunal should take into account all evidence, lay and expert, and reach its own conclusion to the requisite standard, rather than simply defer to expert evidence tendered. As Deputy President Roche said in McCabe Terrill Lawyers v A [2009] NSWWCCPD 46:
“It should always be borne in mind that a finding of incapacity requires an application of the legal standard to the facts found. The arbitrator or presidential member must be satisfied, on the balance of probabilities, having regard to the whole of the evidence that, as a result of the work injury, the worker has incapacity…The medical evidence is an important (often critical) part of the evidence on that issue, but it is not the only evidence that is relevant to the determination.”
It has long been established the questions of incapacity for work and those relating to whether an injury took place at two different matters. A determination of whether there is incapacity, and if so to what extent, requires a consideration of the effects of the applicant’s injury upon him having regard to the totality of the evidence.
In making determinations as to whether there is any incapacity, and if so whether it is total or partial, Commission Members are entitled to draw on their experience as Members of a specialist tribunal. As was noted in Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385:
“The Compensation Court is a specialised tribunal that Judges of which are well qualified by their experience and knowledge of matters in the labour market and wages paid to make the type of assessment Burke CCJ was called on to make in this case. This has been recognised by appellate Courts for many years.”
The question at issue relates purely to the applicant’s capacity. Issues such as the labour market within which the applicant is operating are, since the 2012 amendments to the 1987 Act irrelevant for the purposes of determining the question at issue.
The respondent has placed into evidence a large amount of factual material which calls into question the applicant’s claim of total incapacity. Having regard to the contents of that material, I have reservations in accepting the totality of the applicant’s evidence.
When the applicant told the respondent’s IME Dr Deshpande that he no longer attended the gym, he was plainly not telling the truth. I do not criticise the applicant for attending the gym per se, however, the activities which he was observed carrying out are at odds with portions of his statement evidence and with the histories provided to various doctors.
Mr Robison submitted there was no inherent contradiction between the applicant’s evidence and the activities which he was observed undertaking and which are recorded in the factual material. Those activities include but are not limited to securing a tarpaulin and load over a truck, and repeated visits to a local gymnasium when the applicant was observed carrying out strenuous exercise, including but not limited to some back strengthening routines.
Whilst I accept Mr Robison’s submission that the film showing the applicant securing a load to his brother’s truck is not the equivalent of carrying out full-time work as a truck driver, I nonetheless cannot accept given the factual evidence together with that of the applicant’s own brother tendered in his case, that he is totally incapacitated for employment.
The applicant’s brother, Zeyad Zahab provided a statement in which he noted the applicant had been made a director of Zeyad’s company. I have no difficulty accepting this is true, and note this evidence, which forms part of the applicant’s own case, reveals he has “been doing the data input and dealing with the drivers over the phone”. That evidence is, in my opinion, strongly suggestive that the applicant having at least partial capacity for some employment.
I also note the applicant’s bank records reveal he has been paid some director’s fees periodically on behalf of his brother’s company.
Mr Jones submitted a number of entries in the applicant’s bank records showing debits to a martial art and wrestling academy are indicative of him attending those businesses to train. However, that is not an inference I am prepared to draw in circumstances where the applicant is a father whose family expenses are clearly drawn from the bank account whose statements are in evidence. The mere presence of those debits is no more indicative of the applicant engaging in martial arts training than several statement entries from pool shops are proof he regularly engages in extensive swimming training.
In his report of September 2021, Dr Maniam suggests the applicant could engage in office duties, commencing at four hours per day, three days per week with a view to graduated return to full hours. The applicant attended office duties with the respondent in November 2021, however, after several days he was unable to continue with them. He states in his evidence that he believes he returned to those duties too early and they aggravated his injury.
The applicant’s personal trainer Paolo Wilkinson has also provided a statement. To the extent that statement provides a lay opinion as to the applicant’s medical condition, I reject and place no weight upon it. The statement does, however, provide an explanation for the applicant’s attendance at the gym post-injury. However, the range of exercises which the applicant was shown to perform leads me to conclude the applicant’s physical condition is not as debilitating as he has made out to the various medical experts in this matter.
I accept the applicant’s evidence that attending the gym is valuable for him in providing both a physical and psychological outlet. However, that does not detract from the objective evidence that in my opinion demonstrates a partial capacity for employment.
I note Dr Gehr has stated the factual evidence in this matter describing the applicant moving freely as “glib and an oversimplified overview of his clinical situation”. The doctor then notes many people with significant back injuries are able to move about the community and “do not always need to use walking aids or a wheelchair”. That may well be the case, however, many people with serious back injuries are also not shown to be carrying out repetitive dead lifts on a regular basis at a commercial gymnasium when they have otherwise told medical experts they are totally incapacitated by their injury. Dr Gehr’s opinion, which in my view demonstrates an advocate’s enthusiasm, is rejected insofar as it is used in support of a submission in favour of total incapacity.
Dr Gehr does not substantively deal with the movements and exercises which the applicant is carrying out in the factual material. Rather, he takes a broad-brush approach in dismissing the importance of the factual evidence altogether. In the circumstances of this matter, I am unable to accept his opinion as to the weight or otherwise to be attributed to the factual material. In any event, the acceptance of evidence and the weight given to it is a matter for the tribunal of fact and is not an exercise to be deferred to any expert who provides an opinion in the proceedings.
Notwithstanding my reservations concerning the applicant’s evidence, it is nevertheless the case that he continues to have an objectively demonstrated lumbar spine disc protrusion, and I have found the aggravation to the degenerative changes in his back persist to some degree.
This being so, I am unable to accept the respondent’s submission, supported as it is by Dr Deshpande’s supplementary report, that the applicant has no incapacity for employment. Attendance at a gymnasium and a one-off assistance to his sibling in securing a load on a heavy vehicle does not, in my view, demonstrate the applicant as having full capacity for employment. There are objective medical findings which support ongoing injury and some incapacity on the part of the applicant. In my view, the evidence in this matter points to the proper question for determination being the extent to which the applicant is incapacitated, rather than whether there is any injurious incapacity at all.
Doing the best I can and taking into account the medical evidence in totality combined with the factual material and lay evidence including the applicant’s failed early attempt to return to work on sedentary duties, I am of the view he has a residual capacity for employment.
I note the applicant’s own case demonstrates he has the ability to carry out sedentary work in assisting with his brother’s business, including data input and driver liaison. That is consistent with the applicant’s experience in the transport industry, including owning his own truck in the past and presumably attending to the administrative tasks associated with such ownership.
On balance and noting members of the Commission are entitled to draw on their own experiences as members of a specialist tribunal in determining questions of capacity, I find the applicant has partial incapacity despite his ongoing injury.
I am of the view the applicant has, since March 2022 to date and continuing, had capacity to work on a part-time basis as a clerk in a sedentary role for four days per week, 6.5 hours per day. In my view, an appropriate rate of pay for the applicant carrying out such duties would be that of a level 5 clerk pursuant to the Clerks – Private Sector Award 2020. I make this finding noting the applicant’s experience operating his own business, his coordination of drivers at his brother’s business and also the evidence that he is capable of data entry. The role which I find the applicant is capable of fulfilling is sedentary and enables him to take regular breaks to alter his posture and to alternate between sitting and standing.
The hourly rate for a level 5 clerk pursuant to the relevant award is $28.58. Having found the applicant has capacity to work 26 hours per week in a sedentary role to which that rate applies, this equates to a partial capacity of $743.08 per week.
Pursuant to s 37(3)(a) of the 1987 Act, given the applicant has not returned to work for more than 15 hours per week, the applicable rate of pay would be 80% of his pre-injury earnings less his residual capacity of $743.08 per week.
By my calculation, 80% of the applicant’s PIAWE is the sum of $1,804.80. Subtracting the residual capacity of $743.08 per week from that sum leads to a partial incapacity of $1,061.72 per week.
I therefore find the applicant is partially incapacitated for employment, and for the above reasons the Commission will order that the respondent pay the applicant weekly compensation pursuant to s 37 of the 1987 Act at the rate of $1,061.72 per week from 21 March 2022 to date and continuing.

SUMMARY

The Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.

[2022] NSWPIC 505

13 September 2022