Issue 3: March 2010

S74 of the 1998 Act and s11A of the 1987 Act.

Keating P

8 February 2010

Facts:

Ms Hobden, an Enrolled Nurse, lodged a workers compensation claim alleging she suffered a psychological injury as a result of an “incident at work with patient, and breach of confidentiality by work colleagues.”

The “incident at work with patient” was an incident which occurred on night shift when Ms Hobden was found, following an internal investigation, to have administered medication to a patient which was clinically inappropriate and resulted in the patient suffering a hypoglycaemic episode.

The Respondent served a s74 notice which did not dispute injury, but denied liability for the injury relying on s11A of the 1987 Act.  The Respondent asserted that it had acted reasonably pursuant to s11A and therefore Ms Hobden had no entitlement to weekly compensation benefits for a closed period and/or s60 expenses. The respondent did not particularise what actions it alleged were reasonable.

The delegate of the Registrar acting as an arbitrator under s304B of the 1998 Act determined the matter and found that the employer had a defence under s11A and made an award for the respondent.

Ms Hobden appealed.

Held – Arbitrator’s decision revoked and award entered in favour of the worker.

1. The s74 notice issued by the employer was defective and was unacceptable.  The broad-brush assertion that the employer “acted reasonably in their actions” did not comply with the requirements of s74.  It did not properly identify the action or actions the employer relied upon as having been the whole or predominant cause of the psychological injury. (see Roads and Traffic Authority NSW v Gentle [2009] NSWWCCPD 111 at [6] and [206] to [212] and Gray v Busways Gosford EMP Pty Limited [2009] NSWWCCPD 124 at [186] to [195]).

2. If an insurer or employer disputes liability in respect of a claim, or any aspect of a claim, it is required to give the claimant proper notice of the dispute.  A s74 notice must be in plain language and clearly and succinctly state the reasons the insurer disputes liability and the issues relevant to the dispute.  If s11A is relied on, the insurer must state which of the various parts of s11A(1) it relies on (transfer or demotion or promotion, etc) and the basis for that reliance.  The section is not invoked merely because an injury resulted from the employer’s reasonable actions.

3. The s74 notice was rectified, in part, by the Reply, which identified discipline and performance appraisal as the basis of the dispute.

4. The onus of establishing a defence under s11A is on the employer, Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206; [2005] NSWCA 465.

5. His Honour was not satisfied that the employer has proven that the worker’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to performance appraisal, discipline or dismissal of the worker.

Symbion Health Limited v Thomas [2010] NSWWCCPD 16

Claim for lump sum benefits; refusal to admit late s 74 notice and issue directions; procedural fairness; s 9A of the 1987 Act.

Moore ADP

19 February 2010

Facts:

The worker, a truck driver, claimed that as a consequence of his employment with the Appellant between 1986 and 1996 he developed skin cancer.

On 2 June 2008 Mr Thomas’ solicitors wrote to the Appellant formally making a claim for lump sum compensation and medical expenses. No reply was received. Following further unsuccessful requests for a response from the Appellant to the worker’s claim by both the worker’s solicitor and the WorkCover Claims Assistance Service, the worker filed an ARD in the Commission on 18 June 2009 seeking lump sum compensation.

On 28 July 2009 under cover of an Application to Admit Late Documents the appellant filed a reply to the ARD. It appeared that the s74 notice dated 28 July 2009 attached to the Reply was sent to the worker under cover of letter dated 3 August 2009.

Following two teleconferences the matter was set down for a conciliation/arbitration hearing. In an ex tempore decision the Arbitrator determined that the worker did suffer an injury, namely skin cancer, and that the employer was correctly named. He remitted the matter to the Registrar for referral to an AMS for assessment.

The employer’s appeal focused principally on the conduct of the arbitration hearing, and that it was denied procedural fairness.

Held – Arbitrator’s determination confirmed.

1. In relation to the refusal of the Arbitrator to allow the appellant permission for leave to issue directions the reference was made to Rule 13.4(1) of the Rules and Practice Direction No.7 Rule 13.4(1) is expressed in mandatory terms and prohibits the issue of a Direction for Production in circumstance in which the relevant material could have been obtained previously pursuant to obligations under the 1987 and 1998 Act, the Regulation and WorkCover Guidelines.

2. Questions of procedural fairness must be considered in the context of the objectives of the Commission as set out in section 367 of the 1998 Act, including providing a just, timely and effective dispute resolution service and the public interest to use resources efficiently (see Aon Rick Services Australia Ltd v Australian National University [2009] HCA 27 at [25]-[27]).

3. The appellant’s wish to issue further Directions and to adjourn the matter for that purpose was without any sound basis and was essentially “merely exploratory”. The Appellant failed to respond to the claim for well over 12 months, contrary to the provisions of section 281 of the 1998 Act, and failed to determine the claim in accordance with the provisions of section 289(3) of that Act.

4. Practice Direction No. 2 sets out the Commission’s policy regarding adjournments stating there is discretion in the Commission to grant adjournments in the interests of procedural fairness however it clearly states that the Commission will not adjourn any proceedings unless it is demonstrated that one or more parties would suffer an injustice if the adjournment were not granted (see Moombaleene Local Aboriginal Land Council v Dailey [1998] NSWCC 22).

5. ADP Snell’s observations in The Office of the Public Guardian v Manning [2008] NSWWCCPD 94 at [59] (‘Manning’) were relevant to the challenge to the Arbitrator’s decision to refuse to exercise his discretion pursuant to section 289A of the 1998 Act, to grant leave to rely on an Application to Admit Late Documents attaching the appellant’s section 74 notice.

6. The Arbitrator did not err in failing to exercise his discretion pursuant to section 289A not to allow the appellant to rely on unnotified matters (see Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227 at [51] and Manning at [64]-[65]).

7. In regard to the issues raised on appeal in relation to section 9A of the 1987 Act the Deputy President noted:

• a history taken by a medical expert is admissible as evidence of the facts recorded in that history: section 60 of the Evidence Act 1995; R v Welsh (1996) 90 A Crim R 364;
• employment must be a substantial contributing factor, not the substantial contributing factor: Mercer v ANZ Banking Corporation [2000] NSWCA 138;
• the doctor identified the factual basis upon which his opinion was based: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, and
• employment need only to be a substantial contributing factor to an aggravation, acceleration, exacerbation or deterioration of a disease distinct from being a substantial contributing factor to the disease itself: Murray v Shillingsworth [2006] NSWCA 367.

Nature of ‘review’ pursuant to s352 of the 1998 Act; application of Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’).

Snell ADP

18 February 2010

Facts:

Ms Dizon was a factory worker for the employer from about 1995. In 1999 she began to suffer symptoms in her arms, shoulders and neck and reported the problem. She was moved to another part of the factory but still performed repetitive duties and her symptoms continued.

In 2005 Ms Dizon lodged a claim form for compensation benefits. The employer accepted liability and paid voluntary weekly compensation until about November 2006, at which time proceedings in the Commission followed with the employer then agreeing to pay $150.00 per week from November 2006 on a continuing basis.

On 21 October 2008 the employer issued a s74 notice declining liability for further weekly payments raising issues going to injury, s9A, incapacity and causation, and later also denying liability for ss66/67 compensation.

The ARD pleaded injury to the neck and arms resulting from repetitive duties with the employer, with a deemed date of injury of August 2006, and claimed weekly and lump sum compensation. The weekly claim was pressed only from 10 November 2008, that being the date when voluntary payments had ceased.

The Arbitrator made an award for the Respondent, finding that the worker had no ongoing pathology relating to the work injury and that from 10 November 2008 was not incapacitated. A Jones v Dunkel inference was drawn against the worker for not tendering evidence from treating doctors. The absence of the reports was “troubling” and there was no explanation as to why evidence was not called from them.

On appeal, the employer submitted that a review of discretionary judgment should apply the principles in Australian Coal and Shale Emloyees’ Federation & Anor v The Commonwealth & Ors (1956) 94 CLR 621, that a decision should be affirmed unless it was clearly wrong. It also submitted that a Jones v Dunkel inference was properly drawn regarding the failure to tender reports by treating doctors, as the worker carried the onus of proof (Manly Council v Byrne & Anor [2004] NSWCA 123).

Held – Arbitrator’s decision revoked. S40 award for $116.24 per week from 10 November 2008 to date and continuing, employer to pay s60s, and the lump sum claim was remitted to the Arbitrator for referral to an AMS.

1. The principles in Sapina v Coles Myer Limited [2009] NSWCA 71 and State Transit Authority of NSW v Chemler [2007] NSWCA 249 govern the nature of s352 appeals.

2. Overall medical evidence indicated that there was a “straightforward temporal relationship” between the neck and right shoulder/arm symptoms and “work-related events”. Evidence also established that the left shoulder was symptomatic whilst performing duties with the employer. The nature and development of such symptoms, whilst carrying out physical and repetitive duties, falls within the “disease” provisions of the 1987 Act (Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253, Fletcher International Exports Pty Ltd v Barrow & Anor [2007] NSWCA 244, 5 DDCR 247).

3. One of the respondent’s qualified doctors suggested that symptoms may be due to an underlying condition however this was not further investigated or raised by other doctors. Snell ADP therefore discarded the possibility of pre-existing underlying conditions. Employment was held to be a substantial contributing factor.

4. The deemed date of injury was held to be August 2006, that being the time of termination, when incapacity gave rise to an entitlement to weekly compensation.

5. Medical evidence established that ongoing complaints resulted from the work injury, and had become chronic.

6. If a witness was equally available to both parties, but it was “more natural” for one party to call that particular witness, then a Jones v Dunkel inference can be drawn (Payne v Parker [1976] 1 NSWLR 191, Glass JA). Here the evidence established the employer had evidence it could have tendered from at least one of the treating doctors, and it had not done so.  It could not be expected that one party more than the other would put in evidence from the treating specialists. A Jones v Dunkel inference should not be drawn in the circumstances.

7. Incapacity was found to be partial, taking into account levels of exaggeration noted by several doctors who had examined the worker.

8. S40 calculation – Probable earnings but for injury was agreed at $581.17 per week. Having regard to the factors listed in s43A(1)(b), such as limited work experience and training in Australia, and limited computer skills, and also taking into account intermittency of employment from time to time (Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571), the worker’s ability to earn in suitable employment is $464.93. The difference between probable earnings and ability to earn is $116.24 per week. There was no basis for the exercise of a discretion, therefore an award was made for $116.24 per week from 10 November 2008 to date and continuing.

Department of Ageing, Disability & Homecare v Mariniello [2010] NSWWCCPD 17

Whether hospital and medical expenses resulted from work injury; s60 of the 1987 Act.

Roche DP

22 February 2010

Facts:

In 1991 the worker suffered a low back injury at work. She had surgery then returned to work in 1992. Liability was initially accepted for the 1991 injury. Following a dispute as to weekly entitlements Maguire CCJ awarded continuing weekly compensation and ss66/67 compensation for her back and right leg in August 1994. The worker’s back and leg pain became more severe in 2007 and in 2008 she underwent further surgery. Allianz disputed that the surgery and other treatment related to the 1991 injury.

The Arbitrator found that the worker suffered injury to her low back at the L3/L4 and L4/L5 levels in the 1991 injury and ordered payment for the claimed s60 expenses.

Held – Arbitrator’s decision confirmed save for finding of injury at L3/4 and L4/5.

1. The Issue for determination was a question of causation ie whether surgery was reasonably necessary “as a result of an injury received in 1991” (Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452). [38]

2. The treating neurosurgeon was wrongly asked whether the 2008 surgery was a “substantial contributing factor” to ongoing pain and surgery. This required a higher standard of proof than “reasonably necessary”. [41] Notwithstanding that he was asked the wrong question, he answered in the affirmative. [42]

3. A medical expert is required to provide an explanation for his/her opinion. However, a medical expert does not have to explain every opinion (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [88]-[89], Giles JA in Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631] – cited in Paino v Paino [2008] NSWCA 276 at [65]). Weidberg and Dowsett JJ observed at [89] in Red Bull, “Some propositions may be so fundamental in a particular discipline as to be treated as virtually axiomatic.”  [43]

4. The absence of complaints in the GP’s clinical notes between 1997 and 2007 did not indicate that the back condition as a result of the 1991 injury had completely resolved. The case did not turn solely on a continuity of symptoms from 1991 till 2007.

5. There was no evidence that the fall in 1992 caused any permanent damage or played any role in the development of symptoms that led to surgery in 2008.

6. The Department tendered no evidence to dispute that the claimed hospital and medical expenses were reasonably necessary. Their qualified doctor conceded that the worker “may require spinal decompression”.

7. The worker succeeded in her claim that the need for surgery and other treatment resulted from the 1991 injury. It was neither necessary nor appropriate for the arbitrator to make a finding that she suffered injury to the L4/5 and/or L3/4 levels of her lumbar spine in 1991.

Maboudi v Fergus William Parry t/as Ideal Designs [2010] NSWWCCPD 19

S40 of the 1987 Act; ability to earn; probable earnings.

O’Grady DP

26 February 2010

Facts:

Mr Maboudi worked as a painter for the employer when on 1 April 1998 he suffered injury to his right shoulder, arm and right leg as the flooring of a balcony he stepped on collapsed under him.

In February 2004 a s66A agreement was reached providing for lump sum compensation in respect of the right leg, right arm and pain and suffering. In proceedings before the Commission in 2005 Mr Maboudi received s66 compensation for the sexual organs, additional pain and suffering and weekly compensation at the rate of $500.00 per week from 18 November 1998 to 2 December 1998 with an agreement that he suffered no further economic incapacity after 2 December 1998.

Since the injury, Mr Maboudi completed a Masters degree in engineering in 2007 and has been proprietor of a business and has had short, intermittent employment as a civil engineer with different employers, the last date of employment being 26 November 2008. In October 2008 he made a claim for lump sum compensation and weekly compensation which was declined by the employer on the grounds of there being no physical or economic incapacity. Evidence of earning capacity included tax and business records.

The Arbitrator made an award for the employer in respect of injury to body parts claimed and an award for Mr Maboudi under s40 for varying amounts from 27 November 2008 to date and continuing, on the grounds that he has suffered a reduction in earning capacity. He took into account the worker’s intention to continue with his studies which he found would place a restriction on availability for suitable work, thus exercising a discretion pursuant to s40.

The worker was represented in proceedings before the Arbitrator but not at the appeal hearing. It became evident on appeal that the main issue concerned his ability to earn since the date of commencement of his most recent claim.

Held – Arbitrator’s decision revoked. Worker was awarded s40 payments of $500.00 per week from 27 November 2008 to date and continuing.

1. The worker has been unable to perform the duties of a painter since the injury.

2. Tax records did not correspond to the period of claim and there was no evidence of the worker’s physical contribution or management of the business therefore that evidence did not establish that the worker at any relevant time had an ability to earn in excess of $900.00 per week, being probable weekly earnings as found on review.

3. The evidence established that the worker’s failure to retain the positions he had as a civil engineer were in part due to his physical disabilities. Earnings generated whilst in those positions did not represent the true measure of his ability to earn.

4. If employed, the worker’s ability to earn in suitable employment was $570.00 per week (as found by the Arbitrator) however this did not represent his ability to earn for the purpose of s40. Factoring in the difficulties the worker would encounter competing in the labour market accessible to him as a result of his physical disabilities, and making an allowance for the likelihood that he would from time to time be unemployed, a realistic assessment of his ability to earn was $400.00 per week.

5. There was no basis to exercise the discretion to reduce the worker’s entitlement. His intention to resume studies would be done in his own time and his post graduate studies had been in suspension due to the non-availability of a supervisor. Evidence of relevant matters was adduced, by consent, on hearing of the appeal.

6. The difference between probable earnings and ability to earn was therefore $500.00 per week, less than the statutory rate for a worker with a dependent wife and two dependent children. An award was thus made for $500.00 per week (s40).

7. It was agreed at the hearing that the evidence did not establish injury to the left arm, neck, left leg, severe bodily disfigurement or loss of bowel function. Appropriate findings were made.

Department of Ageing, Disability and Homecare v Pye [2010] NSWWCCPD 18

Psychological injury; relevance of ‘misperception’ as discussed in State Transit Authroity of NSW v Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (‘Chemler’).

O’Grady DP

25 February 2010

Facts:

The worker was employed by the respondent as the Regional Learning and Development Officer. Following difficulties with her workload and in her dealings with another worker she was diagnosed as suffering from a reactive depression and was certified as unfit for work.

Ms Pye made a claim for compensation payments following which weekly payments were made by the respondent’s insurer. Compensation payments subsequently ceased when the insurer issued a s74 notice and denied liability.

The worker filed an ARD in the Commission alleging psychological injury and seeking weekly compensation payments.

The Arbitrator awarded the worker weekly compensation payments pursuant to ss36/37 of the 1987 Act for total incapacity and and paymemnt of s 60 expenses.

The respondent appealed primarily on the basis that the Arbitrator had erred in determining that the worker had suffered an injury arising out of or in the course of her employment in terms of s4 of the 1987 Act.  It was argued that the facts established that the worker’s perceptions were not about real events. Whilst the worker had a significant problem it was not related to her employment.

Held - Arbitrator’s decision part confirmed - new decision substituted amending the Arbitrator’s award in respect of weekly payments.

1. The events and circumstances leading to the worker’s psychological injury were real events and it could not be argued that there had been any misperception, in any relevant sense, of those events by the worker. Adopting the words of McGrath CJ in Townsend v The Commissioner of Police (1989) 25 NSWCCR 9 it could not be said that there had been an “erroneous perception of external events”.

2. Whilst the decision in Townsend was distinguished on its facts by Spigelman CJ in Chemler, it was clear that the reasoning of McGrath CJ had been expressly approved by the Chief Justice. Spigelman CJ (Bryson AJA concurring) said at [51]:

“In this case, there was no ‘erroneous perception of external events’. Not only were none of the events ‘external’, there were positive findings of fact about ‘real events’ with respect to which the respondent’s ‘perception’ was accurate. There was also evidence of perception of events which the Arbitrator found did not occur, but that did not break the causal nexus.”

3. The Respondent sought to rely on s9A for the first time at the hearing of the appeal. The Deputy President concluded that any issue thrown up by its application to the facts could not be litigated, noting that no argument was advanced concerning its relevance nor was any application made seeking exercise of the Commission’s discretion pursuant to s289A(4).

State Rail Authority of New South Wales v Regan and anor  [2010] NSWWCCPD 14

Causation of injury; exercise of discretion (s40 of the 1987 Act).

O’Grady DP

16 February 2010

Facts:

Mr Regan commenced employment with State Rail Authority of NSW (‘State Rail’) in 1970 and by reason of restructuring, his employment was transferred to National Pacific Pty Ltd (‘Pacific’). The changes did not affect his duties as a locomotive driver.

Whilst employed by State Rail the worker injured his neck in 1988 and on a number of subsequent occasions. During his employment with Pacific the worker injured his knees and his neck on a number of occasions. The various injuries were treated medically from time to time and by reason of incapacity the worker was compelled to cease work with Pacific on 31 July 2004.

He claimed and was paid weekly compensation and medical expenses by State Rail’s insurer until 7 October 2008.

The worker filed an ARD in the Commission on 29 June 2009 seeking orders with respect to weekly compensation, medical expenses and lump sum compensation pursuant to ss66 and 67 of the 1987 Act.

The Arbitrator ordered State Rail to pay the worker weekly compensation and referred the claims for lump sum compensation in respect of the neck and knee injuries to an AMS for assessment.

State Rail was ordered to pay the worker’s s60 expenses in respect of the neck injuries and Pacific was ordered to pay the s60 expenses in respect of the knee injuries.

State Rail appealed challenging a number of the Arbitrator’s findings concerning the nature of the worker’s injury to his neck and his entitlement to weekly compensation benefits.

Held – Arbitrator’s decision was confirmed with the exception of the order in respect of weekly compensation payments which was revoked and a new order substituted varying the amount of the weekly award.

1. The Appellant failed to specify with any particularity the grounds upon which it sought to challenge the Arbitrator’s findings.

2. The Deputy President agreed with the Arbitrator’s approach to the medical evidence concerning the issue of causation and the suggested relevance of the “disease provisions of the 1987 Act”.

3. The medical evidence established that the progression of the degenerative condition of the worker’s cervical spine would not have occurred had it not been for the 1988 incident.

4. It was probable that a prolapse of a disc was caused by the trauma of the 1988 injury.

5. The Arbitrator had also found that the worker suffered from an unpleaded psychological condition, which was related to his employment with the respondents, however the Deputy President did not treat the Arbitrator’s finding as one of “injury” in terms of the legislation being relevant to incapacity.  No finding as to circumstance or time was made by the Arbitrator. There was nothing in the Arbitrator’s reasons that suggested he took into account such a condition when assessing the worker’s capacity for work.

6. A supervening injury may be relevant to the manner in which a worker’s entitlement to compensation is assessed (see Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50). The discretion granted by the terms of s40 of the 1987 Act must be exercised judicially. The Arbitrator’s findings that the worker’s psychological condition was not relevant to the exercise of discretion granted by s40 was a proper conclusion having regard to the facts.

7. The Arbitrator erred in his quantification of the s40 award. Having regard to the Arbitrator’s findings as to incapacity and the relevant probable earnings and ability to earn, the worker’s entitlement was necessarily capped by the maximum rate at which a worker with two dependent children may recover.

Wolfinger v Goldmember Enterprises Pty Ltd  [2010] NSWWCCPD 12

Incapacity; weekly benefits and ability to earn; s40 of the 1987 Act.

Moore ADP

8 February 2010

Facts:

The worker was employed by the respondent as a casual cook. His hours varied from 13 to 44 per week, but averaged about 38. During his employment with the respondent he worked a second job initially at the Ritz Nursing Home and from January 2007 at the Martyn Claver Nursing Home.

In June 2007 he injured his back removing rubbish at the end of his shift with the respondent. He ceased work at the end of that day and was unable to resume his job at the nursing home.

Since February 2008 he has been employed by Josh’s Bistro working an average of 28 hours per week, and has remained a permanent employee there since that time.

The insurer paid the worker weekly benefits until 14 June 2008 when liability was denied on the basis that the worker was no longer incapacitated, having been certified fit for pre-injury duties by his general practitioner from that date.

On 30 January 2009 the parties agreed that the worker suffered a 7% WPI in relation to the back.

In an ARD registered by the Commission on 13 August 2009 the worker sought weekly compensation benefits from 14 June 2008 to date and continuing.

The Arbitrator made an award in favour of the respondent finding that on the balance of the evidence the worker was fit to perform his pre-injury duties.

The worker appealed the decision on the basis that the evidence supported a finding of partial incapacity which entitled him to an award for weekly compensation payments.

Held – Arbitrator’s decision revoked and new decision awarding the worker weekly compensation pursuant to s40 of the 1987 Act substituted.

1. The Arbitrator correctly identified the “legal framework” by reference to Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 but failed to apply the test properly in the circumstances of this case.

2. Reference made to the text Workers Compensation in New South Wales, 2^nd ed., by CP Mills at 285 and Alexander v Ashfield Municipal Council, CA 78/81 27 October 1982 which were quoted with approval by the Court of Appeal in Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155 (‘Ric Developments’).

3. The circumstances of Ric Developments were similar to those in the present case.

4. The Arbitrator’s task was to assess the worker’s entitlement to weekly benefits in light of the agreed 7% WPI in relation to his back. Although it was acknowledged that it could not be inferred from an award made under section 66 that a worker was entitled to any award at all under s40, consideration must be given to the impact of the loss on the particular worker.

5. The evidence of the worker, which was supported by Dr Deveridge, whose opinion was accepted by the respondent in terms of “impairment”, was that he was restricted in his ability to perform certain activities. The worker also gave evidence that he was assisted with heavier tasks and worked a split shift because of his symptoms and disability. These factors together were sufficient to demonstrate a “proven incapacity” on the open labour market (see also The Bright Group Pty Ltd v Akdeniz [2009] NSWWCCPD 113 at [108]-[109]).

6. Even though the worker was certified as fit to perform his pre-injury duties by a number of doctors, that did not determine his entitlement to weekly benefits (see Francis and Diane Elsley t/as Frank Elsley Contracting v Wadwell [2009] NSWWCCPD 146 and Adecco Industrial Pty Ltd v Bilaver [2009] NSWWCCPD 77 at [56]).

7. The worker’s entitlement to weekly benefits pursuant to s40 was determined by reference to the relevant authorities.