1. The respondent is to have credit for payments of weekly compensation already made with respect to the above periods.
2. The respondent is to pay the applicants medical and treatment expenses in accordance with s 60 of the Workers Compensation Act 1987.

A brief statement is attached setting out the Commission's reasons for the determination.

1. On 7 August 2023, in the course of his employment with the respondent, the applicant struck his head on a steel beam while steeping onto a scissor lift, sustaining an injury to his cervical spine.
2. Liability with respect to injury to the cervical spine was accepted by the respondent's insurer however the insurer disputes an ongoing entitlement to weekly compensation and medical expenses on the basis that the work related condition in the applicant's cervical spine has now resolved.
3. In the alternative, the respondent disputes the extent of the applicant's entitlement to ongoing weekly compensation on the basis that the applicant has capacity to earn in suitable employment (as a picture framer) such that his entitlement to weekly compensation would be reduced.
4. These are the two issues requiring determination by the Personal Injury Commission (Commission), the balance of the pleaded claim having been discontinued by the applicant.

1. The Application to Resolve Dispute filed by the applicant makes a claim for weekly compensation (identifying both a liability dispute and a work capacity decision) and lump sum compensation.
2. The injury details in the Application are minimal but plead an aggravation injury with a deemed date of injury of 8 December 2023. The date of injury was amended during the preliminary conference to 7 August 2023.
3. The injury description pleads 'the worker sustained an injury while stepping up onto a scissor lift at work, striking his head on a steel beam'. A claim for lump sum compensation is pleaded with respect to injury to the lumbar spine, cervical spine and right upper extremity (shoulder).
4. The respondent does not dispute injury to the cervical spine occurred although disputes that there is any ongoing entitlement to compensation with respect to that injury.
5. Following the conciliation conference the applicant made an application to discontinue the claim for lump sum compensation in its entirety as well as the claim with respect to injury to the right shoulder.
6. The applicant also sought to amend the application to make a claim for a general order for medical expenses in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act). This was opposed by the respondent.
7. I indicated that given the dispute had been raised in the dispute notice and was on the basis that there was no injury with respect to the lumbar spine or that the injury had resolved in the case of the cervical spine, that if I was to find injury or ongoing injury then it would be appropriate to make a general order for the respondent to pay the applicant's medical and treatment expenses in accordance with the Act. I allowed the amendment.
8. As such, at the commencement of the arbitration hearing, the parties agreed the following issues were in dispute and required determination:

(a) injury to the lumbar spine;

(b) whether injury to the cervical spine is ongoing;

(c) entitlement to weekly compensation (both generally and with respect to the respondent's insurer's work capacity decision), and

(d) entitlement to medical expenses.

1. Nearing the end of the applicant's submissions, the applicant also sought to discontinue the claim with respect to injury to the lumbar spine.
2. As such, the issues requiring determination are limited to:

(a) whether injury to the cervical spine is ongoing;

(b) entitlement to weekly compensation (both generally and with respect to the respondent's insurer's work capacity decision), and

(c) entitlement to medical expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was listed for conciliation conference and arbitration hearing on 9 October 2025 by MS Teams. The applicant was in attendance, represented by Mr Moffatt of counsel instructed by Ms Holdsworth. Mr Stiles of counsel appeared for the respondent instructed by Mr Lee. A representative of the respondent's insurer, EML, was also in attendance.
2. 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 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.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents;

(b) applicant's Application to Lodge Additional Documents dated 17 July 2025;

(c) Reply and attached documents;

(d) respondent's Application to Lodge Additional Documents dated 8 August 2025;

(e) respondent's wages schedule dated 1 October 2025;

(f) respondent's Application to Lodge Additional Documents dated 7 October 2025, and

(g) applicant's wages schedule dated 8 October 2025.

1. No further documents we lodged with the Commission.

1. The respondent's insurer issued a dispute notice in accordance with s 78 of the 1998 Act on 22 May 2025 asserting that the work-related injury to the cervical spine had resolved and therefore the applicant had no further entitlement to weekly compensation in accordance with s 33 of the 1987 Act.
2. Section 33 provides as follows:

"Weekly compensation during total or partial incapacity for work

If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity."

1. The position put forward in the s 78 notice and advanced by the respondent in submissions, was that the work-related injury had ceased and therefore there could be no incapacity for work that results from the work-related injury. Where there is no ongoing work injury, any need for treatment cannot be as a result of a work injury and therefore there cannot be any entitlement to treatment expenses in accordance with s 60 of the 1987 Act.
2. I do not accept that the injury to the applicant's cervical spine has resolved for the following reasons.
3. The respondent relies upon the qualified report of Dr Wallace, orthopaedic surgeon, dated

10 February 2025. Dr Wallace accepted that the applicant suffered injury to his cervical spine on 7 August 2023. He noted that he did not immediately undergo medical treatment but eventually saw his general practitioner and was referred for conservative treatment and a corticosteroid injection to the cervical spine. At the time of the assessment in February 2025 he was continuing with exercise physiology and using Panadeine Forte. 4. Dr Wallace considered the applicant suffered a minor cervical spine injury however the mechanism of injury was not consistent with causing significant cervical spine pathology. He considered the minor injury would have settled within a week of the incident and that the residual symptoms were due to pre-existing degenerative change. 5. The respondent also submitted that the symptoms in the cervical spine following the injury were minor demonstrated by the fact that the applicant continued to work not only for the respondent but also as an Uber driver. 6. The respondent does not dispute that the injury on 7 August 2023 occurred as alleged by the applicant nor was any submission made that I would not accept the evidence of the applicant. 7. The applicant relies on a statement dated 10 March 2025. With respect to his cervical spine, he states that on 8 August 2023 while stepping onto a scissor lift, he struck his head on a beam above him which caused immediate significant pain to his neck. He states that he reported the injury to the respondent 'but later discovered that it was not reported as required'. He continued working but due to the physically demanding role and being in severe discomfort he could not continue and resigned on 8 December 2023. 8. This is consistent with a person who sustained an injury and thought he could continue working until such a point that the symptoms became too much. He also states that he ceased the Uber driving as it was not financially viable. 9. The evidence of the applicant with respect to why he continued working following the injury through to 8 December 2023 is coherent, logical and consistent. I do not accept the respondent's submission that it supports the opinion of Dr Wallace that the injury sustained by the applicant was minor and resolved within one week. 10. He notes that he has been diagnosed with C3/4 cervical radiculopathy and C5/6 facet joint injury with ongoing pain, stiffness and reduced range of motion in his neck. He states that his sleep is disturbed due to pain (although it is not clear whether the pain emanates from his neck or his back and shoulder which are now not subject to the claim). 11. The applicant was assessed at the request of his solicitors by Dr Porteous on 9 December 2024 with a report being provided dated 23 December 2024. 12. At that time Dr Porteous recorded that the applicant reported "neck/right shoulder pain rated 5-9/10". Examination revealed reduced range of motion in the cervical spine. Dr Porteous diagnosed the applicant with an aggravation or exacerbation of early underlying degenerative change in the cervical spine although noted that probably C4 radiculopathy had settled. 13. Dr Porteous noted the history provided by the applicant that he had been well before the accident and that the conditions started at work and have been present since. It is on this basis that Dr Porteous expressed the opinion that employment was the main contributing factor to an aggravation injury to the cervical spine. He noted that his prognosis was guarded and the applicant had chronic cervical pain. 14. The applicant has been under the care of his occupational physician, Dr Crowie since April 2024. In a report of 19 April 2024, Dr Crowie noting there were ongoing complaints of cervical pain. On 14 June 2024 it was noted the applicant continued to wake multiple times per night with cervical spine pain. 15. The records of the applicant's general practitioner, Dr Herrman, are also before the Commission. The records are extensive dating back to September 2010 with the applicant attending on Dr Herrman and others at the practice regularly. During submissions I was not taken to any complaints recorded by the general practitioner with respect to the cervical spine prior to the work injury, which is consistent with the history provided to Dr Porteous that he was well prior to the injury. 16. Dr Herrman's records indicate ongoing complaints of pain and restriction in the cervical spine from his first attendance on 12 December 2023 through until the records cease in February 2025. 17. Dr Herrman noted on 3 February 2025 that his condition was "stable, injuries chronic, unable to fine work" although the final note did not distinguish between the injury to the cervical spine and the injuries to the lumbar spine and shoulder which have not been pressed by the applicant in the proceedings. 18. Dr Herrman continued to issue certificates of capacity up to 3 February 2025 with respect to the cervical spine certifying the applicant fit for suitable duties on reduced hours. Dr Herrman issued a further certificate certifying the applicant totally unfit for work from 3 March 2025. There are no clinical notes before the Commission with respect to the basis for the decrease in capacity from 3 March 2025 onwards nor does the applicant provide any details other than to state "On 3 March 2025, I attended upon Dr Herrman for consultation. He completed my certificate of capacity, certifying me as having no capacity for work". 19. Having regard to the statement evidence of the applicant, the records of the applicant's general practitioner Dr Herrman and the treating records of Dr Crowie it is evident that the condition in the applicant's cervical spine, including ongoing symptoms and reduced function is ongoing. The records of Dr Herrman and Dr Crowie are consistent with the statement evidence of the applicant and are supported by the opinion of Dr Porteous that the applicant suffered from chronic cervical pain with a guarded prognosis. 20. For these reasons I am satisfied the applicant did not have cervical spine symptoms prior to his injury and that the symptoms in his cervical spine continue as a result of the work injury. 21. The applicant is therefore entitled to ongoing weekly compensation (subject to the operation of the 1987 Act) and medical expenses in accordance with s 60 of the 1987 Act.

1. Having determined the applicant's injury is ongoing it is necessary to consider the applicant's entitlement to weekly compensation.
2. On 1 November 2024, the respondent's insurer issued a work capacity decision which found the applicant could work in suitable employment five hours per day, four days per week (that is the applicant had a current work capacity). The decision identified 'picture framer' as a suitable role and the applicant could earn $660 per week. The effect of the decision was that it would reduce the applicant's weekly payments to $1,863 from 12 February 2025.
3. The applicant sought a review of the decision and the decision was confirmed in a further notice dated 21 March 2025.
4. The available list of payments indicates the applicant has been paid 82 weeks of weekly compensation in accordance with ss 36 and 37 of the 1987 Act up to 4 July 2025.
5. As such, any entitlement to weekly compensation is calculated in accordance with s 37 of the 1987 Act which provides as follows:

"37 Weekly payments during second entitlement period (weeks 14-130)

(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.

(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates--

(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,

(b) the maximum weekly compensation amount, less the worker's current weekly earnings.

(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates--

(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,

(b) the maximum weekly compensation amount, less the worker's current weekly earnings."

1. It was agreed between the parties that 80% of the applicant's pre-injury average weekly earnings (pleaded at $3,228.13) exceeded the maximum weekly compensation amount and therefore the applicant's weekly compensation would be calculated in accordance with s 37(1) (but capped in accordance with s 34 of the 1987 Act) or s 37(3)(b) of the 1987 Act (subject to a finding with respect to current work capacity).

1. The applicant submitted that he was totally unfit for work. The respondent submitted that even where injury was ongoing the applicant had a current work capacity.
2. Clause 9 of Sch 3 to the 1987 Act defines "current work capacity" and "no current work capacity":

'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.

'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."

1. The respondent submitted that regard can only be had to those injuries which have been found to result from employment and I accept that this is consistent with "no current work capacity" definition in that the "present inability" must arise from "an injury".
2. The applicant, in his statement, states that he is "committed to working within my limitations but require support in finding work that is realistic given my health challenges. I respectfully request that the insurer reconsider their decision and assist me in finding a suitable role."
3. I have taken from this that the applicant himself does not consider he is totally unfit and has capacity for work within his restrictions (although I note the applicant's statement also raises issues with the suitable duties identified by the respondent).
4. Dr Porteous in his report of 23 December 2024, noted that the applicant was "restricted from heavy lifting, pushing, pulling or carrying, or frequent or constant bending and constant or sustained neck rotation...He is restricted from constant or sustained sitting, standing and walking without the ability to take brakes from each other." He noted the applicant did not have capacity for his pre-injury employment. Not having capacity for pre-injury employment is not inconsistent with the applicant having a current work capacity.
5. The applicant's general practitioner, Dr Herrman provided certificates certifying the applicant fit for suitable duties for 20 hours per week through until March 2025 when the certification was suddenly downgraded without explanation to no capacity. This coincided with the work capacity decision of 1 November 2024 coming into effect. Dr Herrman had previously been actively involved in the return to work process
6. There are no records from Dr Herrman to explain the downgrade, no evidence of any other change in the applicant's condition and no explanation from the applicant as to what occurred during the consultation with Dr Herrman that required the change in certification. Without this context I am unable to place weight on Dr Herrman's March 2025 certification downgrading the applicant's capacity, particularly where in February 2025 Dr Herrman had recorded that the applicant's condition was stable with chronic cervical spine and a certificate was provided for suitable duties on reduced hours.
7. Capacity to work 20 hours per week with restrictions is also supported by the treating occupational physician, Dr Crowie who on 19 April 2024 recommended a graded return to work starting at 20 hours per week with restrictions including with respect to repetitive rotation of the neck.
8. Having regard to the statement evidence of the applicant, the ongoing certifications up to March 2025 by Dr Herrman and the opinion of Dr Porteous, I am satisfied that the applicant has a current work capacity for 20 hours per week in suitable employment.

1. In order to establish a current work capacity it is necessary to identify suitable employment.
2. The respondent's dispute notice dated 1 November 2024 identified picture framer as suitable employment relying on the vocational assessment of Actual Rehab dated 11 April 2024 and the questionnaire completed by Dr Hermann on 17 September 2024 confirming it was a functionally suitable option.
3. Section 39A defines suitable employment as follows:

"'suitable employment', in relation to a worker, means employment in work for which the worker is currently suited--

(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

(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

1. The Actual Rehab Vocational Assessment Report dated 26 April 2024 identified picture framer as a suitable vocational option having regard to the various material provided and the restrictions set out in the certificate of capacity by the general practitioner.
2. In relation to the role identified by the respondent as a picture framer, it was noted in the report that physical demands are "light to medium" requires standing frequently to constantly and frequent pulling and pushing. I accept that this is a generalised outline of the functional requirements of a picture framer. The report author contacted three potential employers, who advised the role could be undertaken within the constraints set out in the certificate as put to them by the report author.
3. Actual Rehab also prepared a Labour Market Analysis report dated 25 August 2024. The report identified product assembler, packer and picture framer. The labour market analysis was undertaken on the basis of the certificate of capacity dated 20 August 2024 from the general practitioner which noted a lifting/carrying limit of 7.5kg to waist height, minimal right arm pushing and pulling up to 5kg, minimal bending/twisting and a need for rest breaks every 30-60 minutes.
4. On 17 September 2024 the applicant's general practitioner completed a questionnaire confirming that the roles of picture framer, light packer, light assembler and delivery driver were suitable for the applicant.
5. The respondent's insurer having made the decision on 1 November 2024, Actual Rehab prepared a functional capacity report dated 12 November 2024. The report identified, after testing, the applicant's maximum capacity for various tasks. His capacity was limited to lifting, carrying, pulling and pushing no more than 5kg and each task resulted in increased pain. The findings on testing were reduced from what had been advised by the general practitioner. This was on limited repetitions and did not emulate the ongoing nature of the tasks over a five hour shift, four times per week. I accept that many of these limitations were due to increased pain in the thoracic and lumbar spine which are not the subject of the claim however cervical spine movement was limited in on all directions, including flexion (looking down) from an ideal range of 50 degrees to an assessed range of 30 degrees.
6. Dr Porteous, in a supplementary report dated 17 July 2025 was asked to consider the suitability of the roles of picture framer, product assembler, packer and delivery driver. He noted that due to his work related injuries (which Dr Porteous considered included the lumbar and cervical spine) the applicant was restricted from heavy lifting, pushing, pulling or carrying and frequent or constant bending and constant or sustained neck rotation. He noted he was restricted from using his right arm above mid-chest height and from constant or sustained sitting, standing and walking without being able to take regular breaks and the applicant cannot undertaken frequent, sustained or constant looking up or down.
7. There is no evidence before the Commission as to the reasoning process undertaken by

Dr Herrman when he placed restrictions on the applicant's medical certificates. There is no suggestion that he undertook the extensive functional testing undertaken by Actual Rehab in November 2024. Given the specificity of the assessment and report, I prefer the functional assessment by Actual Rehab over the opinion expressed in the certificates by Dr Herrman. 8. A review of the 1 November 2024 work capacity decision was undertaken on 21 March 2025. Despite holding the functional assessment, it does not appear the respondent's insurer considered it when re-considering the 1 November 2024 decision. 9. I accept the applicant's submission that working as a picture framer generally requires standing at a work bench and looking down at the bench while undertaking framing work. I accept that the applicant's ability to look down while working and his ability to stand for extended periods is impaired as demonstrated by the Actual Rehab vocational assessment and the opinion of Dr Porteous. 10. While I appreciated that the role had been identified as suitable by Dr Herrman, I am not satisfied that Dr Herrman's opinion was supported by functional testing nor had he been asked to comment on the Actual Rehab functional assessment. Further, the findings in the functional assessment are inconsistent with the basis for the opinions expressed in the earlier vocational assessment and labour market analysis by Actual Rehab. 11. For these reasons I do not accept that work as a picture framer is suitable employment for the applicant having regard to the available medical and rehabilitation material. 12. As far as the additional roles identified by Actual Rehab were advanced as being suitable employment by the respondent, having regard to the issue identified with the inconsistency between the applicant's functional capacity as set out in the functional report and the functional capacity which formed the basis for the opinions expressed in the vocational report and labour market analysis I am not satisfied that these roles amount to suitable employment for the applicant. 13. There is no evidence before the Commission with respect to any other roles which may be suitable for the applicant and as such I am not satisfied the applicant is capable of working in suitable employment and therefore has 'no current work capacity'. 14. As such, the applicant is entitled to weekly compensation on the basis he has no current work capacity.

1. For the reasons set out above, I make the findings and orders set out in the attached certificate of determination.