Antoun v Pride Building & Refurbishment Pty Ltd [2022] NSWPIC 318 (24 June 2022)

Last Updated: 30 June 2022

STATEMENT OF REASONS

INTRODUCTION

1. This matter concerns a dispute relating to a Work Capacity Decision which determined that the worker’s entitlement to weekly payments of compensation would cease, for reason that he is able to undertake suitable employment within the meaning of s 32A of the Workers Compensation Act 1987 (the 1987 Act) and his ability to earn would exceed the statutory entitlement to weekly payments of compensation. For the reasons discussed below, the applicant’s claim for compensation is unsuccessful.

BACKGROUND

2. On 21 February 2020, the applicant, David Antoun, sustained an injury to his shoulders and neck in the course of his employment with the respondent, Pride Building & Refurbishment Pty Ltd.
3. The respondent accepted the applicant’s injury in the nature of a rotator cuff tear or rupture. The respondent made payments of compensation, including weekly payments of compensation.
4. On 19 January 2022, iCare issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to the applicant that his weekly payments of compensation would cease on 2 May 2022. The reason for this decision was based on a finding that the applicant was able to return to suitable employment as a project builder, production manager and/or safety inspector. The role of a project builder was preferred, and used as a basis for calculating the applicant’s ability to earn in suitable employment.
5. On 29 April 2022, the applicant lodged an Application for Expedited Assessment (Form 1) (Application) claiming weekly benefits where a work capacity decision is in dispute.
6. On 9 May 2022, the respondent lodged a Reply to the Application.
7. On 12 May 2022, the respondent lodged an Application to Admit Late Documents (AALD –1).
8. On 20 May 2022, the respondent lodged a further Application to Admit Late Documents (AALD – 2).

PROCEDURE BEFORE THE COMMISSION

9. On 20 May 2022, I convened a telephone conference to resolve the dispute. The applicant attended the telephone conference, with his counsel, John Gaitanis and solicitor Natalee Davis of Shine Lawyers. The respondent was represented by its solicitor Robert Mitas of Lee Legal Group.
10. The parties were unable to reach a resolution of the dispute and provided oral submissions during the telephone conference. The parties were informed of my intention to determine the dispute following the telephone conference.
11. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours to bring the parties to the dispute to a settlement. 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.

ISSUES

12. The parties agreed, during the telephone conference, that the following issues remain in dispute:

(a) whether the roles identified by the respondent are “suitable employment” under s 32A of the 1987 Act?

(b) whether the applicant is entitled to weekly payments of compensation under s 37 of the 1987 Act?

13. There was no dispute as to the following matters:

(a) the applicant’s pre-injury average weekly earnings is $2,970 (as indexed);

(b) the applicant is in the second entitlement period, under s 37 of the 1987 Act, and

(c) the applicant has been certified with capacity to work in some type of work 8 hours per day, 5 days per week with restrictions.

14. The applicant did not object to the admission of the respondent’s AALD – 1 or AALD – 2. The AALD – 1 and AALD – 2 contains documents which are relevant to the current proceedings and I considered that it was in the interests of justice that those documents be admitted into proceedings. Accordingly, during the telephone conference, leave was granted to the respondent to introduce the evidence attached to the AALD – 1 and AALD – 2 into the proceedings.

EVIDENCE

15. The following documents were in evidence before me and have been considered in determining this dispute:

(a) Application, and attached documents;

(b) Reply, and attached documents;

(c) AALD – 1, and attached documents, and

(d) AALD – 2, and attached documents.

Applicant’s statement

16. In evidence is a statement prepared by the applicant, dated 28 April 2022.
17. The applicant states that after leaving school he has “been working in labour intensive jobs ever since” and “never stopped working until [he] sustained the injury to [his] shoulders in February 2020”. He states that he completed a mechanics’ course at Meadowbank TAFE in 1984/1985 and a demolition and asbestos safety course in 2003/2004.
18. The applicant also states that he commenced work with the respondent, with his brother, John Antoun (John) in 2000. He states that “[b]ecause I worked with my brother, I never needed any formal qualifications”. He adds that he “never did any further certificates in building or construction” and does not “hold a Certificate III or any other qualifications in building and construction”. He did not undertake further study.
19. The applicant further states that while working for the respondent he “was always working under [his] brother’s building licence”. He described his work with the respondent as a “glorified labourer”, and adds that he “did all the physical work, including labour work, carpentry, landscaping. Basically anything hands on was my job”. He said that:

“I would do all the physical work and run the job, but I only would need to look after myself. It was only me running the job. John would often be on the phone, and he would arrange for labourers when we needed to, I would be on site talking to them and working alongside them.

...

I would describe John’s role as the supervisor, organiser, and manager.

...

I would describe my role as the ‘doer’ and labourer. I did all the practical side of things, and he did the business and management side.”

20. The applicant details that he was never responsible for coordinating labour resources, ordering equipment, rostering or organising staff, and consulting with third parties. However, he states that he would sometimes “stand with John while he spoke to the stakeholders, but [he] didn’t really deal with them directly”. He adds that John did the negotiating and pricing but that they “would talk about it ...and ... what’s reasonable”. The applicant further adds that “[b]oth of us were in charge of making sure any project was completed on time and within budget. We would talk to each other and decide together”.
21. The applicant states that John was in charge of the management and ensuring there were enough people and equipment to get it done. However, he would help these workers when they were “on site and make sure everything was done right”.
22. The applicant also states that John prepared tenders and contract bids. The applicant said that he does not have a computer. He added that he “would do things a really rough way and virtually be able to guess what things are worth due to my experience”.
23. The applicant further states that John was responsible for all the drafting, including drafting work programs for all sites. However, he states that they “would consult with each other, and we would talk about it...John would write things up and we would have a discussion together about it. John would then send it out in email form”.
24. The applicant adds that he could oversee the standard of some work done by subcontractors. He also occasionally interpreted architectural drawings, but he would usually do this with John.
25. The applicant details how he would not feel capable of undertaking tasks that he said John did for the respondent or that are required for the role of a project builder.
26. In terms of his physical capacity, the applicant states that he is unable to “lift anything slightly heavy” and cannot “lift anything above my head”. He continues to experience a lot of pain in his arms and shoulders. He has difficulty driving and stretching his hands out from his body, and says he cannot climb ladders.
27. He states that his employment with the respondent was terminated on medical grounds on 13 March 2020, and that he has not worked since the injury in February 2020.
28. The applicant records that following his injury to his shoulders he underwent left shoulder surgery in July 2020 and right shoulder surgery in March 2021, under the hand of Dr Johnathan Herald, orthopaedic surgeon. He said that he is undertaking physiotherapy treatment. He also said that Dr Herald told him that “he has done all he can” and he needs to live with his injuries.

John Antoun’s statement

29. In evidence is a statement prepared by the applicant’s brother and business partner,
    
    John Antoun, dated 28 April 2022. John states that the applicant’s role for the respondent was very physical in nature and he was virtually the “site foreman”. John said he did all the planning budgeting and managerial tasks, and that the applicant “was partially responsible for co-ordinating labour resources and procurement and delivery of materials, plan and equipment”. John said that he would order and arrange for equipment and staff and the applicant would deal with it onsite.
30. John provides a list of tasks that the applicant was not responsible for while working at the respondent: consulting with architects; negotiating with building owners/property developers/subcontractors; preparing tenders or contract bids; operating or implementing coordinated work programs; arranging submissions of plans to local authorities, and building under contract.
31. John also provides a list of tasks that the applicant undertook while working for the respondent: oversaw the standard and progress of subcontractors’ work to a limited extent; interpreted architectural drawings and specifications to a limited extent; co-ordinated labour resources and procurement and delivery of material, plant and equipment to a limited extent; consulted with trades workers; and negotiated with subcontractors in relation to specific tasks to be done on site.
32. John states that the role of a project builder would be “required to climb ladders, clear the site, perform physical labour and use tools in order to do some work”. He adds that the applicant has no qualifications or experience or capacity for the role of a project builder.

Erin McLaughlan’s statement

33. In evidence is a statement prepared by the applicant’s de-facto partner, Erin McLaughlan, dated 28 April 2022. Ms McLaughlan states, amongst other things, that she has observed the applicant’s difficulties following his injury. She states that the applicant is not able to carry bags of groceries or get things out of the higher cupboards.

Medical evidence

Dr Caroline Davidson

34. In evidence are several medical certificates issued by the applicant’s treating general practitioner, Dr Caroline Davidson, regarding the applicant’s capacity for work. He was certified fit for full-time hours, with restrictions, in some type of work from 24 February 2020 – 6 July 2020. There was a period where the applicant was certified with no current capacity until 11 January 2021, which coincides with the period he was recovering from left shoulder surgery. His capacity gradually increased to 8 hours per day, 5 days per week, with restrictions, from 1 March 2021 – 13 April 2021. There was a subsequent period where the applicant was certified with no current capacity until 20 September 2021, which coincides with the period he was recovering from right shoulder surgery. His capacity increased to 8 hours per day, 5 days per week, with restrictions, on 5 October 2021. The latest certificate, dated 25 March 2021, certified the applicant with capacity for some type of work for 8 hours per day, 5 days per week, with restrictions, until 25 April 2022. The restrictions are noted as follows: less than 12 kg lifting/carrying left; less than 5 kg lifting/carrying capacity right; 20 kg pushing/pulling ability left; less than 7 kg pushing/pulling ability right; and “avoid lifting above shoulder height”.
35. On 12 January 2022, Dr Davidson, provided medical approval of all vocational options identified by the respondent. That is, Dr Davidson approved the vocational options of a project builder, production manager and safety inspector.

Other

36. In evidence are a series of reports from Dr Herald, the applicant’s physiotherapist, Dr Toigo, together with some radiological investigation reports.
37. Relevantly, in the ultrasound report of the right shoulder, dated 5 June 2021, it is recorded that there is a partial thickness tear of the deep fibres of the supraspinatus tendon and infraspinatus tendon. It also records a full thickness partial width tear of the subscapularis tendon.
38. Relevantly, in the most recent report of Dr Herald, dated 24 September 2021, the following is recorded:

“PLAN

I have explained to David he is doing very well, but he is lifting less than 7kg. I have recommended a gym programme to try and increase his strength. He will probably be able to do this over the next three months and I will see him as needed, but essentially he has reached maximum medical improvement now.”

39. Relevantly, in the most recent report of Dr Toigo, dated 23 September 2021, it is recorded that the applicant has “full AROM in flexion, abduction and external rotation (with minor pain/tightness at EOR)”. In a questionnaire completed by Dr Toigo, dated 12 November 2021, in response to a question regarding the applicant’s return to work/goal plan. It is recorded that the applicant “would be fit for some capacity -> 90% strength = Goal”.

Vocational assessment material

i-Fit Group

40. In evidence is a Vocational Assessment report prepared by i-Fit Group, dated 30 November 2021. In that report, the duties the applicant undertook with the respondent are recorded. Some of those duties appear inconsistent with the lay statement evidence of the applicant and John.
41. The duties of a project builder are recorded as follows:

“• Interprets architectural drawings and specifications.

• Co-ordinates labour resources, and the procurement and delivery of materials, plant and equipment.

• Consults with architects, engineering professionals and other professionals, and technical and trades workers.

• Negotiates with building owners, property developers and subcontractors involved in the construction process to ensure projects are completed on time and within budget.

• Prepares tenders and contract bids.

• Implements co-ordinated work programs for sites.

• Ensures adherence to building legislation and standards of performance, quality, cost and safety.

• Arranges submission of plans to local authorities.

• Builds under contract or subcontracting specialised building services.

• Oversees the standard and progress of subcontractors' work.

• Arranging building inspections by local authorities.”

42. The functional demands for the role of a project builder were recorded as follows:

“• Near vision – seeing details that are up-close

• Far vision – seeing details at a distance

• Frequent standing and walking within work site”

43. It further records that a full-time worker spends “around 48 hours per week at work (compared to the average of 44 hours)”.
44. Three prospective employers were contacted and each indicated that the applicant was a suitable candidate for the role of site supervisor or site foreman due to his experience and knowledge in the industry. Relevantly, it records that the applicant would be a suitable candidate for roles advertised by three prospective employers. In respect of the first prospective employer, Guardian Building Services, it was recorded that the role of site supervisor would require the applicant to “oversee projects and obtain required documents for building projects to ensure compliance with safety standards”. In respect of the second prospective employer, Design & Build, it was recorded that the role of site supervisor would require the applicant to ensure quality assurance of projects. In respect of the third prospective employer, Sheeth Pty Ltd, it was recorded that the role of site foreman, would require him to “inspect building projects and ensure compliance with safety standards”.

IPAR

45. In evidence is a Labour Market Research Report prepared by IPAR, dated 3 February 2022. It refers to the prospective employers and roles in the vocational assessment report, and lists the qualifications, duties and skills required. Relevantly, in respect of the role of project builder and the first prospective employer, the qualifications identified include a white card and driver’s licence. It also records that full-time capacity is “up to 38 hours per week”. The usual duties/tasks required are listed as follows:

“•Ensure projects are completed on time;

• control costs on jobs by avoiding erosion;

• Have and unwavering commitment to building Defect-free home;

• Ensure the highest standards of quality and safety on jobs;

• Be able to empathetically teach and walk the client through any questions they may

have about the building process or their home;

• Be clear, concise and simple in explaining to the client what they should expect

through the building process through proactive and responsive communication.”

46. The skills required are listed as follows:

“• Interpersonal and communication skills;

• Attention to detail;

• Organising skills;

• Ability to liaise with stakeholders;

• Problem-solving skills;

• Ability to work in a team.”

SUBMISSIONS

47. The applicant and respondent provided oral submissions during the telephone conference which were recorded. Those submissions will not be repeated in full but have been considered and will be referred to where relevant.

Whether the roles identified by the respondent are “suitable employment” under s 32A of the 1987 Act?

Submissions

Applicant’s submissions

48. The applicant submits that the vocational roles identified by the respondent insurer in the work capacity decision are not suitable and the decision is incorrect.
49. The applicant relies on submissions lodged with the application, regarding the application of s 32A of the 1987 Act. Those submissions raise issues regarding the applicant’s capacity and ability to earn 40 hours per week in income on an hourly rate in the role of a project builder, having regard to the requirement for a meal break; the required hours of full-time work and overtime; the functional requirements of the role; and, amongst other things, the applicant’s education, skills and work experience.
50. The applicant contends that there is a vast difference between the duties required of a project builder and what Dr Davidson was advised, when she approved the vocational options. However, the applicant concedes that the weight to be given to Dr Davidson’s evidence (in this regard) is limited to the applicant’s physical capacity to undertake the vocational options identified by the respondent insurer.
51. The applicant refers to his statement, and refers to the tasks he undertook in his pre-injury role in support of his position that he is not able to undertake the functional demands of a project builder. It is asserted that the applicant has only worked in labour intensive jobs, does not hold any certificates, no capacity to supervise, not able to organise people and council plans. The applicant contends that the role of a project builder is beyond him in terms of his capacity. The applicant also relied on the lay statement evidence of John and Ms McLaughlin in support. The applicant refers to the vocational assessment report and the list of duties of the role of a project builder, which he asserts he is not able to do.
52. The applicant further asserts that an inference cannot be drawn that he has capacity or knowledge of commercial issues because of his role as a director. Inferences must be based on evidence and there is no foundation to find that “because he was a director that he is expected to understand roles of vocational options”.
53. The applicant also asserts that he has “no current work capacity” under s 32A of the 1987 Act. The applicant refers to his clinical records, the history of surgery to the left and right shoulder and evidence that post surgery the applicant has a partial thickness tear in the supraspinatus tendon. The applicant adds that s 32A prevents him from undertaking the tasks in the vocational options identified.
54. The applicant contends, for the same reasons set out above, the other vocational options are not suitable.

Respondent’s submissions

55. The respondent submits that vocational options identified are suitable employment under s 32A of the 1987 Act.
56. The respondent contends that the applicant has functional physical capacity to undertake the core requirements of the vocational options. The medical evidence concludes that the applicant is fit for the inherent functional requirements of the role and there is no evidence to the contrary. In terms of the contemporaneous medical evidence, the applicant’s most recent medical certificate certifies that he is fit for suitable duties 40 hours per week with some physical restrictions. The respondent also refers to Dr Herald’s report of 24 September 2021, noting that the applicant was near full range in his right shoulder six-months post-surgery. The respondent further refers to Dr Toigo’s report of 23 September 2021 which records the applicant has full range of motion flexion/abduction and some limited restrictions. The respondent adds that Dr Davidson approved the vocational options on 12 November 2021. The vocational evidence supports the applicant’s certification is within the functional limits or requirements of the roles. The applicant has the physical capacity to undertake the roles.
57. The respondent also contends that the applicant has the requisite skills to undertake the role of project builder. The respondent notes that the applicant was one of two directors of the respondent for 20 years and essentially one of two owners of the respondent for 20 years. The applicant had responsibilities to the company as director which were fiduciary in nature – this includes being acquainted with the inner workings of the company and satisfied of the inner workings of the company. The respondent contends that the applicant’s knowledge of the inner workings of the company is in excess of what is in the lay statement evidence.
58. The respondent asserts that the applicant discloses certain skills and experience sufficient for the vocational options identified. The respondent refers to the applicant’s statement, highlighting the applicant’s involvement in business activities of the respondent, consistent with the duties of a project builder. The respondent notes that while the applicant may not have a computer but he does not assert that the applicant cannot use a computer. The respondent also refers to John’s statement and notes that he says he does not have the skillset of a project builder. However, the respondent refers to specific paragraphs of John’s statement that provides that the applicant has a degree of skill for the vocational options and transferrable skills.
59. The respondent submits that the role of safety inspector and production manager are also suitable roles. These roles are not looking at detailed knowledge in the building industry or a license builder but looking for a person who has experience in business and use to organising people. The applicant is an ideal candidate for these roles, noting his 20 years’ of work experience, communication skills and coordination skills.

Discussion

60. The present dispute concerns the applicant’s work capacity and ongoing payments of weekly compensation. The dispute is governed by the Commission’s expedited assessment procedure under Pt 5 of the 1998 Act. In particular, s 297(1) of the 1998 Act provides that an interim payment direction may be issued for the payment of weekly payments of compensation.
61. A dispute concerning a worker’s work capacity requires consideration of whether the worker has “current work capacity” or “no current work capacity” for “suitable employment” within the meaning of those phrases under the 1987 Act. The meaning of these phrases has been interpreted and applied in many decisions, and, in particular, Wollongong Nursing Home Pty Ltd v Dewar^[1].
62. “Current work capacity” and “no current work capacity” is defined under cl 9 of Sch 3 of the 1987 Act as follows:

“(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.

(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”

63. “Suitable employment” is defined under s 32A of the 1987 Act 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.”

Other matters

64. It is first necessary to address the applicant’s submissions regarding his ability to earn an hourly rate of 40 hours per week, which includes matters relating to meal breaks, overtime and the duties of a project builder.

Ability to earn and meal breaks

65. I do not accept the applicant’s submission that the insurer’s decision that he “...can earn an hourly rate at 40 hours per week is a material error”. I accept that the applicant is entitled to a meal break, if he works an 8 hour day. However, I do not accept that the applicant’s entitlement to unpaid meal breaks should result in a reduction in the applicant’s ability to earn 40 hours per week (or as the applicant asserts, less 2.5 hours per week for the requirement of unpaid meal breaks), for the following reasons.
66. Firstly, it is accepted that the applicant’s treating general practitioner certified the applicant with capacity for some type of work 8 hours per day, 5 days per week. This is demonstrated by the most recent available medical certificate, dated 25 March 2021. Secondly, a capacity to work 8 hours per day, 5 days per week does not mean 8 hours or 40 hours of unbroken work. It means 8 hours of work over a working day or 40 hours of work over a working week. Lastly, there is no evidence to support the applicant’s submission. Indeed, there is no evidence to suggest that the medical certification of 8 hours of some type of work per day is inclusive of an unpaid meal break.

Required hours of work – project builder

67. I do not accept the applicant’s submission that the respondent has erred in finding that he can work “full-time” hours of work in the role of a project builder. That is, I do not accept the applicant’s submission that he cannot undertake the role of a project builder which the applicant purports to submit requires 48 hours of work per week, when he is only certified to work 40 hours per week in some type of employment.
68. Firstly, I accept that the vocational assessment report of i-Fit Group, dated 30 November 2021, provides that “Full-time [project builders] spend around 48 hours per week at work (compared to the average of 44 hours)”. However, this does not mean that there is a requirement that those hours must be undertaken. It does not suggest that the applicant is required to work overtime to make up the balance of hours. Further, it does not suggest that there is a requirement that the applicant be able or capable to undertake 48 hours of work, in order to be considered a suitable candidate for the role of project builder. Secondly, the evidence suggests to the contrary. The IPAR Labour Market Research Report, dated 3 February 2022, indicates that a full-time worker works up to 38 hours per week or that the ordinary working hours will be 38 hours per week, and that any time worked beyond an employee’s ordinary working hours is to be paid at an overtime rate. There is no evidence to the contrary. Thirdly, the medical evidence demonstrates that the applicant has a capacity to undertake the hours required of a project builder set out in the vocational assessment evidence.
69. The applicant does not clearly articulate how he would be unable to work overtime, and how that relates to the relevant award requirements for payment of overtime and unpaid meal breaks. It is further unclear, having regard to the above reasons, how the provision of unpaid meal breaks or the relevant award requirements for payment of overtime would result in the applicant being unable to earn the maximum statutory rate for weekly payments of compensation in suitable employment.

Duties of a project builder

70. The applicant asserts that the duties of a project builder set out in the vocational evidence is incorrect. The applicant contends that the duties are of a physical nature, to support his position that those duties are outside the scope of his physical capacity, and, therefore, the role of a project builder is not suitable employment. For the reasons that follow, I prefer the vocational evidence.
71. Firstly, the physical duties of a project builder are set out in the vocational assessment evidence prepared by two separate companies, namely i-Fit Group and IPAR. The only evidence that purports to contradict that evidence is John’s statement. John’s statement evidence suggests that the physical duties of a project builder extend beyond those set out above at [41]. In this regard, I note that John states that the role of a project builder would require the applicant to attend to several physical tasks, including climbing ladders, lift over chest height, perform activities with outstretched arms or use tools to do some work. However, the vocational assessment evidence does not indicate a requirement to lift above shoulder height or a lifting/carrying/pushing/pulling weight ability beyond the applicant’s current medical restrictions. There is no vocational evidence that contradicts the duties required of a project builder set out in the respondent’s vocational reports or supports the duties set out in John’s statement evidence.
72. Secondly, the role of project builder and the duties required would likely vary between employers. This is demonstrated by the labour market evidence, which does not indicate that the role requires the performance of labour intensive tasks as suggested by John.
73. Thirdly, John’s statement does not provide an explanation as to what would be involved in clearing a site, why physical tasks would be undertaken, what types of physical tasks would be undertaken with any detailed precision (e.g. what would he be required to lift over chest height or what activities would require use of outstretched arms), and what types of tools would need to be used in the role of a project builder. Even if I were to accept this evidence as to the duties undertaken in the role of a project builder, it would be difficult to determine whether those duties are incompatible with the applicant’s physical restrictions.
74. Having regard to the above, I prefer the vocational evidence over the lay evidence regarding the scope of the duties undertaken by a project builder.

Section 32A of the 1987 Act – project builder

Nature of the worker’s incapacity

75. The “nature of the worker’s incapacity and the details provided in medical information” is a factor that must be considered in determining suitable employment under s 32A of the 1987 Act. For the following reasons, the medical evidence supports that the applicant has the capacity to undertake the role of a project builder.
76. Firstly, for the reasons discussed above, the applicant has been certified by Dr Davidson to be fit for suitable employment 8 hours per day, 5 days per week. Those hours equate to 40 hours of work in suitable employment over the course of the working week, which is within the required hours of work for a full-time project builder.
77. Secondly, I accept the respondent’s submissions that, the medical evidence supports that the applicant is fit for the inherent physical requirements of the role of a project builder. There is no contrary medical evidence. The available medical evidence provides:
    1. the applicant’s most recent certificate of capacity, dated 25 March 2021, indicates that the applicant is fit for suitable employment, with restrictions, 8 hours per day, 5 days per week. Those restrictions which are recorded above at [34] are not incompatible with the physical requirements of the role of a project builder set out in the vocational assessment evidence;
    2. Dr Davidson, approved the role of a project builder on 12 November 2021;
    3. Dr Herald, in his report of 24 September 2021, provides that the applicant is near full range in his shoulder after surgery, and
    4. Dr Toigo, in his report of 23 September 2021, reports that the applicant has a full range of arm motion flexion/abduction and some limited restrictions. These restrictions are not incompatible with the physical requirements of the role of a project builder set out in the vocational assessment evidence.
78. Thirdly, the applicant’s submissions are largely founded on the basis that the duties of a project builder are of a physical nature outside the scope of his physical capacity. However, for the reasons set out above, I do not accept that submission. The duties of a project builder as set out in the vocational evidence are not incompatible with the applicant’s physical restrictions set out in the medical evidence.
79. Fourthly, I have had regard to the lay statement evidence of the applicant and John that suggest that the applicant would not be capable of undertaking the role of a project builder on the basis of his physical restrictions. However, I must treat that evidence with caution as it is not evidence which is qualified by a medical opinion and is not “medical evidence” within the meaning of that phrase under s 32A of the 1987 Act.
80. For the above reasons, I am not satisfied based on the current evidence, that the inherent physical requirements of the role of a project builder fall outside the scope of the applicant’s capacity.

Age, education, skills and work experience

81. Section 32A of the 1987 Act provides that the applicant’s age, education, skills and work experience must be considered in determining suitable employment. I am also mindful that in determining suitable employment I am not to have regard to the nature of the applicant’s pre-injury employment.
82. The evidence supports that the applicant’s age is not a barrier to his return to suitable employment. The parties did not raise age as a barrier to suitable employment.
83. The applicant submits that he is not able to undertake the functional demands of a project builder, because he has only worked in labour intensive jobs, does not hold any certificates, has no capacity to supervise, organise people and council plans. However, for the reasons that follow, there is evidence that supports that the applicant has some skills and work experience which is directly relevant or transferrable to the duties of a project builder. The following factors are relevant:

(a) It is accepted that the applicant has worked in the building industry for over 20 years, and has many skills arising from his pre-injury employment.

(b) The evidence identifies that the applicant has had some experience in the business operation of building projects for the respondent. The applicant’s statement evidence provides that he:

• - was present when John spoke to and engaged with stakeholders;
• - discussed and consulted with John on financial matters;
• - was “in charge” with John of making sure any project was completed on time and within budget;
• - supervised workers/subcontractors onsite to make sure “everything was done right”;
• - is “virtually able to guess what things are worth due to my experience”;
• - consulted with John on drafting of work programs for all sites, and
• - occasionally interpreted architectural drawings.

John’s statement provides that the applicant was:

• - “partially responsible for co-ordinating labour resources and procurement and delivery of materials, plant and equipment” – dealing with this onsite;
• - oversaw the standard and progress of subcontractors’ work to a limited extent;
• - interpreted architectural drawings and specifications to a limited extent;
• - consulted with trades workers, and
• - negotiated with subcontractors in relation to specific tasks to be done on site.

(c) That the applicant does not have a computer does not mean that he is unable to use a computer, as the respondent submits. There is no evidence to indicate that the applicant cannot use a computer.

84. I accept that the applicant’s skills and work experience has been largely focused on manual labour. However, I do not accept that his skills and experience are limited to manual labour. It is difficult to reconcile the applicant’s lay evidence of the duties he undertook for the respondent against the record of duties he undertook set out in the vocational evidence, and I prefer the evidence of the applicant in that regard. However, the applicant’s own statement evidence clearly indicates that there are some tasks and activities that he undertook with the respondent which are consistent with the duties of a project builder. This is supported by John’s statement evidence. These tasks and activities are set out above at [83(b)]. This evidence demonstrates that the applicant has some level of skills and experience relevant and transferrable to the role of project builder.

85. I have had regard to the fact that the applicant thinks he would not be capable to undertake the role of project builder, which is supported by John’s statement evidence. However, having regard to the lay statement evidence, I am not persuaded that the applicant’s asserted lack of experience and skills or the concern that he would not be capable of the role is determinative of whether the role of project builder is suitable employment within s 32A of the 1987 Act. Indeed, the applicant did not assert what skills, experience, training, education and/or qualifications he required or needed to undertake in order to be considered suitable for the role of project builder.
86. The standard duties of a project builder set out in the vocational assessment report does not necessarily mean those duties are an inherent requirement in every project builder role. As discussed above, the required duties of a project builder will vary from each employer and this is demonstrated in the market analysis report. Having regard to that evidence and the duties set out for each prospective employer, the inherent requirements of a project builder do not appear to be inconsistent with the applicant’s vocational skills.
87. Further, the evidence indicates that the applicant has the relevant skills and experience to undertake the duties/tasks required of the first prospective employer in the vocational evidence (see above [45]). The applicant’s own statement evidence indicates that he was responsible for making sure everything was “done right” onsite and that “any project was completed on time and within budget”. This is supported by John’s statement evidence, which also indicates that the applicant oversaw the “standard” and progress of subcontractors’ work and that he was responsible onsite for co-ordinating labour resources, procurement and delivery of materials. This demonstrates that the applicant undertook tasks and duties to ensure projects were completed on time, that costs were controlled, a high standard of quality and safety on jobs was maintained onsite. It is reasonable to infer that such duties would require a level of interpersonal and communication skills, organisation skills, attention to detail, ability to liaise with stakeholders, problem solve and work as a team. To this end, the applicant has a level of skills and experience which would be relevant to the role of a project builder.
88. In view of the above, there are compelling factors which support that the applicant has the requisite education, skills and experience for the role of project builder and that that role is suitable employment within the meaning of s 32A of the 1987 Act.

Any plan or document prepared as part of the return to work planning process

89. Section 32A of the 1987 Act provides that any plan or document prepared as part of the return to work planning process must be considered in determining suitable employment.
    
    I accept that the insurer has not relied on any return to work planning documents, in the work capacity decision, as the applicant submits. However, the absence of these documents or lack of reliance on these documents is not necessarily a barrier to the role of a project builder or other vocational options being considered suitable employment within the meaning of that phrase in s 32A of the 1987 Act.
90. The applicant relies heavily on the Initial Workplace Assessment Report of i-Fit, dated 30 June 2020, in support of this factor under s 32A of the 1987 Act. However, for the reasons that follow, that report is of little probative value. Firstly, I accept that this report lists a series of tasks which the applicant was unable to complete at the time of the assessment. However, those tasks are not functional requirements of the role of a project builder as set out in the vocational assessment evidence. Secondly, that this report records that the only suitable duty the applicant could undertake was a supervisor role, does not mean that a further vocational assessment could be made that revises that opinion (which occurred). Thirdly, that that report records that there was no light duties available for the applicant at the respondent because he typically competed the more physical tasks and that John completed the paperwork and invoicing does not demonstrate that the applicant is unable to complete those non-physical tasks or that the role of project builder is not suitable. Lastly, the most contemporaneous return to work evidence supports the applicant’s return to work in suitable employment such as a project builder.
91. Similarly, that case conference records note the applicant has no qualifications does not mean that the role of project builder is not suitable employment. The vocational evidence indicates that the applicant has the relevant skills and experience for the role of project builder. The applicant has not explained what qualifications he would require in order to be able to undertake the role of project builder or identified any reference in the vocational evidence that provides that the role of project builder requires a qualification that he does not possess.
92. For the above reasons, the return to work planning process documentation does not demonstrate that the role of project builder is not suitable employment.

Any occupational rehabilitation services

93. Section 32A of the 1987 Act also provides that any occupational rehabilitation services must be considered in determining suitable employment. The applicant submits that the lack of support by the insurer (presumably in return to work arrangements) is an additional consideration. However, the applicant has not demonstrated that he requires any occupational rehabilitation service to undertake suitable employment or the role of project builder. It follows that the provision of any occupational rehabilitation services is not a barrier to the role of project builder being considered suitable employment.

CONCLUSION

94. For the reasons set out above, I am satisfied, having regard to the totality of factors under s 32A of the 1987 Act and the available evidence, that the role of project builder is suitable employment. As a result, it is not necessary that I determine the balance of the issues in dispute. That is, it is not necessary that I determine whether the roles of production manager and/or safety inspector are suitable employment or the applicant’s actual earnings for the purposes of entering an award under s 37 of the 1987 Act.
95. It follows that I decline to set aside the work capacity decision.
96. Accordingly, I decline to make an interim payment direction.

^[1] [2014] NSWCCPD 55.