1. The applicant repeated his submission that the respondent had reviewed the evidence and decided that it was not sufficient to support a dispute in respect to incapacity.
2. In the respondent's submission the applicant's own medical practitioners have assessed him as having a capacity to work somewhere between 26 and 28 hours per week.
3. I do not accept the applicant's submission for the reasons previously given. Additionally, a preliminary review of the evidence does support that there is merit and substance to a dispute in respect to incapacity.
4. The vocational assessment report authored by Pinnacle Rehab dated 7 June 2024 identified three suitable employment options, not just Parking Inspector, being:

(a) sales assistant - department warehouse;

(b) deliver driver (van or car - light items), and

(c) parking inspector.

1. Dr Rahman approved the above occupations as being suitable.
2. It is the applicant's evidence that he has continued to apply for all types of work including shop assistant, light delivery driver, and storeman, but has been unsuccessful in all of his attempts.
3. On 1 May 2024 Mr Joe Gillespie, physiotherapist, assessed the applicant as able to work eight hour shifts on three non-consecutive days.[20] On 10 May 2024 Jordan Gauci, exercise physiologist, reported to Dr Nadira Jahan that the applicant was fit for eight hour shifts on three non-consecutive days with restrictions. Dr Rahman on 30 May 2024 completed a Certificate of Capacity[21] in which the applicant was certified with capacity for some type of work between 30 May 2024 and 28 June 2024 for eight hours per day, three alternate days per week with restrictions. On 30 June 2024 Jordan Gauci assessed that the applicant was able to complete "PTSD" days/hours. I assume that "PTSD" stands for part-time suitable duties with restrictions.[22] On 12 July 2024 Jordan Gauci again assessed that the applicant was able to complete "PTSD" days/hours with restrictions[23] and in the opinion of

Dr Wijenayake the applicant is not totally unfit for work recommending work days of a maximum of six hours with an hour break in the middle and a maximum of four days per week, totalling 24-28 hours per week with restrictions.

The degree of difficulty or complexity to which the unnotified issues give rise

1. Disputes in respect to incapacity commonly arise and whilst those disputes can at times be complex there is nothing to indicate that any particular complex or difficult issues in the current matter.

When the insurer notified that it wished to contest any unnotified issue(s); did the respondent act promptly to bring the matter to the attention of the Commission and all other parties; any unreasonable or unexplained delay in giving notice; in what circumstances the worker was first made aware of the unnotified issue; general conduct of the parties in the proceedings

1. Due to the overlap in the submissions made in respect to these factors it is convenient to deal with them together.
2. Ms Goodman submitted on behalf of the respondent that the parties have known since the s 78 notice of 15 July 2024 that liability was disputed. In Ms Goodman's submission the mere fact that the s 78 notice of 15 July 2024 is no longer in force does not take away from the fact that the applicant has known at all times that liability for ongoing payments was being contested.
3. Mr Grimes submitted on behalf of the applicant that the respondent has not acted promptly to notify the applicant and has not explained the delay. That the issue in respect to the status of the s 78 notice of 15 July 2024 was raised at the initial conciliation conference/arbitration hearing on 19 March 2025 and no further s 78 notice or work capacity decision has since been served by the respondent.
4. It is the applicant's submission that it does not know what evidence the applicant is to meet. That he does not know the reasons which are given for the dispute which the respondent now seeks leave to bring. That he does not know what evidence the respondent relies on submitting that the respondent has considered its own work capacity decision and vocational assessment and presumably considered Dr Miniter's opinions and decided to tell the applicant that they are going to pay him full weekly compensation from 1 October 2024.
5. I do no not accept the applicant's submissions. Whilst the review notice of 9 December 2024 may have caused some confusion, both parties, both prior to and following the issuing of the review notice, have proceeded on the basis that there was a dispute in respect to incapacity.
6. On 27 September 2024 the applicant completed a statement.[24] At [24] of his statement the applicant states that liability had been declined by letter dated 15 July 2024. The applicant had also prior to the issuing of the review notice obtained the forensic report dated

30 October 2024 from Dr Wijenayake having been examined by the doctor on

21 October 2024 as well as a report from the applicant's general practitioner (GP) Dr Masud-Ul-Haq dated 19 August 2024.[25] It is clear from the reports of Dr Wijenayake and Dr Masud-Ul-Haq that both doctors were asked to comment on and provide their opinions in respect to the applicant's work capacity, which both doctors did. 7. After the issuing of the review notice on 9 December 2024 payments of weekly compensation were not made in accordance with the review notice. The applicant filed an ARD with the Commission on 24 January 2025 commencing these proceedings. Among the documents attached to that application was the said statement by the applicant, the reports of Dr Wijenayake and Dr Masud-Ul-Haq as well as the work capacity decision and the s 78 notice dated 15 July 2024. The review notice was not among the documents lodged with the ARD. 8. The respondent lodge a Reply on 13 February 2025. The Reply filed on behalf of the respondent confirmed the matters in dispute as per the dispute notices attached to the application. Attached to the Reply was the work capacity decision as well as the review notice. Also attached to the Reply was the vocational assessment report of Pinnacle Rehab dated 7 June 2024, a Doctors Sign Off completed by Dr Rahman as well as the Certificate of Capacity completed by Dr Rahman dated 30 May 2024. These documents had formed the attachments to the work capacity decision. 9. The respondent lodged an ALAD with the Commission dated 20 March 2025 which had attached to it the reports of Dr Miniter dated 17 June 2024 and 27 June 2024 as well as a list of workers compensation payments. The reports of Dr Miniter had formed the attachments to the s 78 notice of 15 July 2024. 10. At the preliminary conference before me on 11 March 2025 the parties agreed the PIAWE amount and advised that the only issue in dispute between the parties was incapacity. At the time of the preliminary conference no objection was raised as to notice of the dispute and no issue raised as to the status of the dispute notices. A Direction was issued by the Commission dated 11 March 2025 which recorded as a notation that "[T]he only issue in dispute is s 33 - incapacity." At that time the respondent had not as yet lodged its ALAD dated 20 March 2025 and therefore the only evidence served by the respondent went to the issue of incapacity. 11. Whilst the respondent did not issue a further s 78 notice after the initial conciliation conference/arbitration hearing on 19 March 2025 the parties were clearly aware that incapacity was in issue and the evidence relied upon by the respondent.

The degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability

1. See the above discussion in respect to "When the insurer notified that it wished to contest any unnotified issue(s)".

Any prejudice that may be occasioned to the worker

1. Mr Grimes submitted on behalf of the applicant that the applicant would be prejudiced if the discretion is exercised in favour of the respondent. In the applicant's submission they don't know which documents are being relied upon and which issues will be relied upon.
2. In the respondent's submission there is no prejudice to the applicant if the respondent's application is granted as the applicant has at all times known of the dispute. That it was confirmed at the preliminary conference on 11 March 2025 and noted in the subsequent Direction that the only issue was in fact capacity for work.
3. In the respondent's submission the applicant has been able to deal with the s 78 notice. It filed the ARD with the s 78 notice attached and has responded by introducing into evidence, Dr Wijenayake's report, dealing with the applicant's capacity for work.
4. I do not accept the applicant's submission. As previously discussed, that the respondent was disputing incapacity was known to the applicant. The issue is relatively confined in nature and whilst disputes in respect to incapacity can raise complex issues there is no indication that there are any unusual elements to the dispute in the current matter.
5. The documents relied upon by the respondent in support of its case are contained within the documents served in these proceedings. The documents served by the respondent are relatively limited in number and apart from a short report from the treating orthopaedic surgeon, Dr Rizkallah, dated 14 March 2024 and a list of workers compensation payments, the documents were all previously served on the applicant as attachments to either the work capacity decision or the s 78 notice of 15 July 2024.
6. Mr Grimes submitted that there would be prejudice to the applicant in that the applicant has been told in the review notice that he will be paid weekly compensation from 1 October 2024 and has not been paid.
7. I do not accept the applicant's submission. Whilst the applicant has been told in the review notice that he would be paid weekly compensation, that compensation has not been paid. I have however determined that due to the effect of the review notice that there is no extant dispute in respect to the payment of weekly compensation. The effect of that determination and any entitlement to payment of weekly compensation is a separate issue to what prejudice would arise from the granting of the leave to dispute incapacity.
8. The fact that liability may be accepted for the payment of weekly compensation at a particular rate does not mean that those payments are to be made in perpetuity. Disputes in respect to the liability to pay weekly compensation or as to the amount to be paid can arise for a number of reasons after liability has been previously accepted and weekly compensation paid. The legislation provides for such disputes.
9. It was also submitted on behalf of the applicant that if the respondent is allowed to proceed in respect to the dispute the respondent has not complied with the notice provisions. That if the respondent is allowed to proceed and that if notice starts with the granting of the leave to raise the dispute, then the respondent has not provided the required 12 weeks notice to the applicant.
10. I do not accept the applicant's submission. I am of the view that the relevant notice period must still be given in accordance with s 80 of the 1998 Act if leave is granted to raise a dispute that has the effect of reducing or terminating weekly compensation. Section 80(1) of the 1998 Act states:

"(1) An insurer must not discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation, unless the required period of notice (commencing when the notice of discontinuation or reduction is given in accordance with this Division) has expired."

1. Section 80 places a prohibition on an insurer discontinuing or reducing payment to a worker without providing the required notice period through the use of the words "must not". Whilst the section does also provide that the period of notice is to commence when "the notice of discontinuation or reduction is given in accordance with this Division" (the same Division which contains ss 78 and 79) that mechanical aspect of the section does not in my view alter the clear prohibition.

Any other relevant matters arising from the particular circumstances of the case

1. There were no other relevant matters raised by the parties.

Commission must act according to equity, good conscience and the substantial merits of the case

1. In the applicant's submission the respondent has not acted with equity or good conscience in circumstances where after a request for review has been made in respect to both notices. The respondent having determined that they are not relying on their own evidence tell the applicant they are going to pay him and then don't.
2. The applicant repeated its submissions in respect to the merits of the case.
3. The respondent submits that it acted with equity and good conscience. That at the time of the review that led to the issuing of the review notice the s 78 notice of 15 July 2024 has been totally overlooked and it is against that background that the review notice says that weekly payments are going to be made from 1 October 2024. The respondent in support of its arguments attached to its submissions emails which are not in evidence. The applicant objects to those emails being admitted into evidence and reliance upon them. It has not been necessary for me to consider those emails, or the submissions made in respect to them or in reliance on them. I have not considered or relied on those emails, or the submissions made in respect to them and as such it is not necessary to consider their admission into evidence. The emails were not tendered for any other purpose.
4. I do not accept the applicant's submission. As previously discussed, the review process has gone wrong, and the respondent appears to have assumed and acted on the basis that the s 78 notice of 15 July 2024 was still extant and that there was a dispute as to incapacity. I have previously discussed the merits of the dispute in respect to incapacity which I will not repeat here for the sake of brevity.
5. Having considered the factors to be taken into consideration as outlined in Mateus in exercising the discretion under s 289A(4) I am of the view that it is in the interests of justice for a dispute in respect to incapacity to be heard and dealt with by the Commission. The respondent's application for leave to raise a dispute in respect to incapacity is therefore granted.
6. It is the respondent's application that their reliance on the dispute as to incapacity be back dated to from 15 July 2024, the date of the s 78 notice. I reject the respondent's application. The application by the respondent was to raise a new matter. I do not believe that I have the power to re-instate a dispute notice that has been revoked. The dispute as to incapacity is only raised for the purpose of these proceedings with the granting of the leave pursuant to s 289A(4).
7. As the review notice revoked the work capacity decision and the s 78 notice dated 15 July 2024 and told the applicant that he was to be paid weekly compensation at the rate of $1,360 from 1 October 2024 there was no dispute in respect to weekly compensation payments prior to the granting of leave under s 289A(4) to the respondent on 30 April 2025.
8. Liability had previously been accepted with notification of the acceptance of liability being provided under cover of correspondence dated 30 August 2023 and payments of weekly compensation made. As there was no dispute in respect to weekly compensation and the respondent had stated in the review notice that compensation would be paid at the rate of $1,360 being "PIAWE x 80%" pursuant to s 37 of the 1987 Act (the maximum amount which the applicant could receive on the basis of total incapacity) there will be an order that the respondent pay weekly compensation to the applicant pursuant to s 37(1) of the 1987 Act on the basis of total incapacity from 7 August 2024 to at least 30 April 2025 (the date on which leave was granted pursuant to s 289A(4) to raise a dispute in respect to incapacity). The payment of weekly compensation after 30 April 2025 is considered below.

1. The applicant submits that due to estoppel by conduct the respondent is prohibited from:

(a) denying liability;

(b) disputing payment of weekly compensation from 7 August 2024 to date, and

(c) relying on the vocational assessment report by Pinnacle Rehab dated

7 June 2024 and the assertion that a Parking Inspector is suitable employment.

1. Estoppel by conduct according to the authors of Halsbury's Laws of Australia at [190]-[191]:

"prevents a party from unjustly resiling from an assumed state of affairs which he or she has induced another party to adopt as the basis of some act or omission which, if the assumption were not adhered to, would operate to that other party's detriment. The object of that estoppel is to prevent the detriment which the other party would suffer if the assumption were deserted."

1. Deane J in Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 (Verwayen) observed at [444]:

"Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as a basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted; the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party."

1. Roche DP in Begnell v SuperStart Batteries Pty Ltd [2009] NSWWCCPD 19 (Begnell) at [102] stated:

"The central principle of the doctrine of estoppel by conduct is that the law will not permit an unconscionable departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some course of conduct which would operate to that other party's detriment if the assumption were not adhered to for the purpose of the litigation (Deane J in Verwayen at 444)."

1. The applicant in its submission provides the following summary of the elements of the estoppel at [2.1]:

"1. Did the representor cause the representee to adopt the assumption on which the estoppel is based?

1. Detrimental reliance also involves a factual question: did the representee act on the assumption in such a way that he or she will suffer detriment if the assumption is not adhered to?
2. The requirement of reasonableness is more complex. It raises for consideration issues of the blameworthiness of the conduct of the representor and the representee, and whether the representee's reliance should be protected in the circumstances.
3. The requirement that it must be unconscionable or unjust for the representor to depart from the assumption adds very little to the other three elements. It can be argued that all it adds is a requirement that, in cases where the assumption is induced by silence, the representor must reasonably expect reliance."
4. It is submitted on behalf of the applicant that the respondent caused the applicant to adopt the assumption that he would be paid weekly compensation up to 1 October 2024 and thereafter and that the applicant relied on that assumption in such a way that the applicant will suffer/has suffered a determinant if the assumption is not adhered to by the respondent.
5. In the applicant's submission the following detriments have been suffered:

(a) the applicant has been without weekly compensation from 7 August 2024;

(b) the applicant has been forced to instruct lawyers;

(c) the applicant has been forced to commence proceedings in the Commission to enforce the representations made by the respondent, and

(d) section 80(3) of the 1998 Act provides for a "required period of notice" of three months for a decision made on the basis of any reassessment by the insurer of the entitlement to weekly payments of compensation resulting from a work capacity decision of the insurer to be given prior to a reduction or discontinuance of weekly payments of compensation. In the applicant's submission as the ARD was filed with the Commission on 24 January 2025, within the 12 week notice period of the review notice dated 9 December 2024 the applicant suffers the detriment of inability to obtain a stay on the work capacity decision pursuant to s 289B the 1998 Act.

1. I do not accept that the applicant has adopted the assumption that he is going to be paid and then acted to his detriment in reliance on that assumption.
2. Whilst the applicant on initially receiving the review notice may well have expected to receive payments of weekly compensation those payments were not made. The actions taken by the applicant were because he was not paid.
3. As previously discussed in respect to the application by the respondent to raise a dispute in respect to incapacity under s 289A(4) the applicant prior to the issuing of the review notice had commenced gathering evidence to challenge the work capacity decision and the s 78 notice dated 15 July 2024. Those preparations included the making of his statement dated 27 September 2024 and the procuring of reports from Dr Wijenayake and Dr Masud-Ul-Haq.
4. After the issuing of the review notice on 9 December 2024 and the failure to make the promised payments of weekly compensation. The applicant filed an ARD with the Commission on 24 January 2025 commencing these proceedings. The review notice of

9 December 2024 was not annexed to the ARD. 5. At the preliminary conference before me on 11 March 2025 the parties agreed the amount of the applicant's PIAWE and advised that the only issue in dispute between the parties was incapacity. At the time of the preliminary conference no objection was raised as to notice of the dispute in respect to incapacity and no issue raised as to the status of the dispute notices. A Direction was issued by the Commission dated 11 March 2025 which recorded as a notation that "[T]he only issue in dispute is s 33 - incapacity." At that time the respondent had not as yet lodged its ALAD dated 20 March 2025 and therefore the only evidence served by the respondent went to the issue of incapacity. 6. It would appear that the only detriment that possibly occurred as a result of any reliance on the review notice was possibly some short delay in the lodging of the ARD which was still lodged fairly expeditiously. 7. In the respondent's submission there is no detriment. That as I have determined that there is no valid dispute notice and that the applicant is entitled to weekly payments of compensation from 7 August 2024 onwards and that despite the fact that he commenced proceedings in the Commission the applicant does not have any legal costs to pay. 8. I accept that the applicant has suffered a detriment as a result of not being paid the weekly compensation in accordance with the statement made in the review notice dated

9 December 2024. However, this detriment does not arise as a result of the applicant's reliance on an assumption but simply because the promised compensation was not paid. Furthermore I have previously determined that that there is no valid extant dispute notice given the effect of the review notice and that the applicant has an entitlement to weekly compensation pursuant to s 37(1) of the 1987 Act on the basis of total incapacity from

7 August 2024 to at least 30 April 2025 (the date on which leave was granted pursuant to s 289A(4) to raise a dispute in respect to incapacity). The respondent has therefore not been permitted to resile from its statement that it would make payments of weekly compensation to the applicant at least until the granting of leave under s 289A on 30 April 2025. 9. As previously discussed the fact that liability may be accepted for the payment of weekly compensation at a particular rate does not mean that those payments are to be made in perpetuity. Disputes in respect to liability to pay weekly compensation or as to the amount to be paid can arise for a number of reasons after liability has been previously accepted and weekly compensation paid. The legislation provides for such disputes. 10. Relevantly s 44A of the 1987 Act requires an insurer to conduct assessments of an injured worker's current work capacity, work capacity assessment. Section 78 of the 1998 provides that notice of any decision to dispute liability in respect of a claim or any aspect of a claim or decision to discontinue or reduce the amount of weekly payments of compensation be given. Section 78 of the 1998 Act provides the requirements for the giving of that notice whilst s 80 of the 1998 Act provides the required notice periods. 11. In the current matter the procedure which is required by the legislation to be followed when discontinuing or reducing weekly compensation has gone amiss. 12. Given the applicable legislation, the nature of the statutory scheme as well as potential changes in the applicant's physical capacity for paid employment it was always open to the respondent to review its decision to pay weekly compensation and raise a dispute as to incapacity and this is what the respondent has been granted leave to do under s 289A(4). The granting of leave to raise a new matter has its own requirements and factors that need to be consider in respect to the discretion under s 289A(4). It is therefore in my view not unjust or unreasonable for the respondent to raise the new dispute. It was never open to the applicant to assume that the payments of weekly benefits compensation would continue indefinitely as a result of the review notice. 13. I do not accept the applicant's submission that he suffered a detriment as a result of the inability to obtain a stay on the work capacity decision pursuant to s 289B of the 1998 Act. The applicant submits that this detriment arises as a result of the filing of the ARD within three months of the s 287A review notice. Section 289B provides that

"289B Stay of disputed work capacity decision

(1) The referral of a dispute for determination by the Commission in relation to a work capacity decision to discontinue, or reduce the amount of, weekly payments of compensation operates to stay the decision and prevents the taking of action by an insurer based on the decision while the decision is stayed.

(2) However, the decision is stayed only if the dispute is referred for determination by the Commission before the expiry of the required period of notice under section 80.

(3) A stay operates from the time the President accepts the dispute for referral until the proceedings are determined, dismissed or discontinued.

(4) The Commission may, if it considers that a party to the dispute is unreasonably delaying the proceedings on the dispute, order that the stay ceases to have effect."

1. It is undisputed that the s 287A review notice of 9 December 2024 withdrew the work capacity decision of 20 June 2024. Proceedings were not commenced in the Commission prior to the issuing of the review notice on 9 December 2024. By the time the review notice had issued the period in which proceedings needed to be commenced to obtain a stay had elapsed. The s 287A review notice did not reduce the payments of weekly compensation to the applicant but rather increased them and therefore s 289B does not apply as the stay only arises in relation to a work capacity decision to discontinue or reduce the amount of weekly compensation.
2. If the applicant is submitting that he suffered a detriment because no stay is available in respect to the decision under s 289A(4) made on 30 April 2025 to grant the applicant leave. That detriment does not arise due to the belief of the applicant that the respondent was going to pay him weekly compensation and the reliance on that belief to his detriment. The detriment, if it arises, results from the failure of the respondent to pay weekly compensation and the action taken in respect to that failure to pay.
3. In respect to the vocational assessment report by Pinnacle Rehab dated 7 June 2024 and the assertion that a Parking Inspector is suitable employment. I have previously determined that the work capacity decision of 20 June 2024 and the s 78 notice of 15 July 2024 are not extant having been revoked by the review notice of 9 December 2024. A new dispute was raised with the granting of leave under s 289A(4) on 30 April 2025. The said vocational assessment report was attached to the work capacity decision of 20 June 2024. The s 287A review notice notionally attached the work capacity decision. The work capacity decision was not physically attached to the s 287A review notice as it had previously been supplied to the worker.[26] The report has been lodged and served with the Reply. The vocational assessment report has been disclosed to the applicant.
4. In my view the respondent is not estopped from relying on the vocational assessment report generally or specifically in respect to the role of Parking Inspector. There is no evidence that the applicant has adopted the assumption that the respondent would not allege, based on its previous pronouncements in the review notice that the applicant had the capacity to work as a Parking Inspector. There is also no evidence that, if the applicant did hold such a belief, he has acted as a result of that belief to his detriment.
5. For the above reasons the vocational assessment report of Pinnacle Rehab is admitted into evidence.
6. For the above reasons I also find that the respondent is not estopped from disputing incapacity, disputing payments of weekly compensation after 30 April 2025, from relying on the vocational assessment report by Pinnacle Rehab dated 7 June 2024 or from asserting that a Parking Inspector is suitable employment.

"33 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.

Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues."

1. Clause 9 of Schedule 3 of the 1987 Act defines "current work capacity" and "no current work capacity" and states:

"9 Meaning of 'current work capacity' and 'no current work capacity'

(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."

1. Suitable employment is defined in 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 -

(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

(iv) the worker's place of residence."

1. In the respondent's submission there is no evidence that the applicant has no capacity for work and all the evidence supports a finding that the applicant has a current work capacity. In the respondent's submission the evidence supports that the applicant has a current work capacity of at least eight hours per day, three days per week (with restrictions) from at least 30 May 2024. In the respondent's submission the vocational assessment report by Pinnacle Rehab identified Sales Assistant, Delivery Driver - van or car - light items and Parking Inspector as suitable occupations for the applicant and the applicant's GP, Dr Rahman, agreed that all three occupations were suitable and furthermore it is the applicant's evidence that he has been applying for work as a shop assistant, light delivery driver or storeman.
2. The applicant submits that the respondent in its work capacity decision only relied on the assertion that the applicant was fit to work as a Parking Inspector and did not rely on the occupations of Delivery Driver and Sales Assistant. The respondent then, in the review notice of 9 December 2024, withdrew the assertion that the applicant could work as a Parking Inspector.
3. The applicant submits that the Pinnacle Rehab vocational assessment report should be given little or no weight.
4. The vocational assessment report authored by Pinnacle Rehab dated 7 June 2024 identified the following as suitable employment options for the applicant:

(a) sales assistant - department warehouse;

(b) deliver driver (van or car - light items), and

(c) parking inspector.

1. The respondent submits that all three roles are suitable for the applicant.
2. Before considering the suitability of the identified roles it is necessary to first identify and consider what restrictions the applicant has as a result of the accepted work injury. Pinnacle Rehab in producing its vocational assessment report did not undertake a physical assessment of the applicant but rather relied on a Certificate of Capacity of Dr Rahman dated 30 May 2024.
3. Whilst no physical assessment was conducted by Pinnacle Rehab they did question the applicant in respect to his capacity in respect to certain activities with the applicant relevantly reporting that:

(a) while sitting for around 40 minutes, he has a pain level of 4/10 in his right shoulder because posing his arms whilst sitting puts pressure on his injury;

(b) while driving for around one hour, he has a pain level of 4/10 in his right shoulder during turning the car because of moving a gear stick with his arms whilst driving puts pressure on his injury,

(c) while lifting around 5kg above shoulder height for around five minutes, he has a pain level of 6/10 in his right shoulder because of lifting his arms whilst lifting items puts pressure on his injury;

(d) while pushing and pulling around 10kg for around five minutes, he has a pain level of 6/10 in his right shoulder because of pulling and pushing with his arms puts pressure on his arms, and

(e) while lifting around 5kg below shoulder height for around five minutes, he has a pain level of 6/10 in his right shoulder because lifting with his arms puts pressure on his arms.

1. It is the applicant's evidence that he continues to have pain in his shoulder every day, that he is still very restricted in the use he has of his right arm as he struggles to lift anything other than very light weights and struggles to lift things above his shoulder. That he struggles with simple cleaning chores around the house and has had to buy a clothes dryer as he can't hang out the washing. That he has difficulty driving for extended periods and doesn't think he could handle driving any form of manual transmission vehicle. That he has continued to apply for all types of work including shop assistant, light delivery driver, and storeman, but has been unsuccessful in all of his attempts.
2. On 25 January 2024 Dr Sherif Rizkallah, the treating orthopaedic surgeon, reported to the insurer that he had examined the applicant on 24 January at which time the applicant described progressive improvement in his right shoulder pain and function although he was not at yet at the stage where he could return to his normal pre-injury employment as a truck driver. The doctor was however of the opinion that the applicant was fit to perform suitable duties in an office environment. The doctor did not elaborate further on the types of suitable duties that the applicant would be able to perform or what restrictions should be applied.[27]
3. On 14 March 2024 Dr Rizkallah reported that the applicant reported excellent improvement in pain and function with clinical examination on 13 March 2024 demonstrating a normal shoulder profile with full active range of motion, normal stability and excellent strength in external rotation and abduction. In the doctor's opinion the applicant was ready to return to his normal pre-injury employment without restrictions.[28]
4. Joe Gillespie, physiotherapist, reported to the respondent on 28 March 2024 that the applicant had returned to work on Monday 25 March 2024 with capacity to work three non-consecutive days on normal hours and normal duties. Mr Gillespie reported that he had seen the applicant on the Tuesday at which time the applicant had reported an increase in pain following the shift on the Monday. The applicant had again attended upon Mr Gillespie on the Wednesday at which time he had reported that his pain had increased, and he had taken the day off due to the pain. The applicant felt that the repetitiveness of his work duties along with the long hours of each shift had aggravated his shoulder. The applicant reported that he felt that he would be able to continue with his pre-injury duties on three non-consecutive days. It was also thought that the length of his shifts should be reduced to six hours.[29]
5. On 12 April 2024 Mr Gillespie reported to the respondent that since the reduction in his capacity to six-hour shifts on three non-consecutive days the applicant had not been allocated any shifts at work.[30] On 1 May 2024 Mr Gillespie reported that the applicant was no longer employed by the respondent. On 1 May 2024 Mr Gillespie assessed the applicant able to work eight hour shifts on three non-consecutive days.[31]
6. On 10 May 2024 Mr Gauci, exercise physiologist, reported to Dr Nadira Jahan that the applicant was fit for eight hour shifts on three non-consecutive days. With a lifting/carrying capacity of floor to waist of 20kg, waist to shoulder of 10kg and overhead of 5kg and pushing/pulling ability of 25kg.[32]
7. Dr Rahman on 30 May 2024 completed the Certificate of Capacity[33] relied upon by Pinnacle Rehab in its vocational assessment. Dr Rahman certified the applicant with capacity for some type of work between 30 May 2024 and 28 June 2024 for eight hours per day, three alternate days per week with the following restrictions lift/carry floor to waist 25kg, waist to shoulder 10kg and overhead 5kg; push/pull to 25kg.
8. On 30 June 2024 Mr Gauci reported to Dr Jahan that the applicant was experiencing occasional flare ups due to incidental overexertion whilst performing some tasks at home,

Mr Gauci noted that they had to reduce exercise volume due to increased pain with these flare ups. The results of a lifting assessment were floor to waist 25kg, waist to shoulder 10kg, overhead 5kg, single arm carry 10kg and push/pull 25kg. The applicant was aware of some level of discomfort with all lifts however they were manageable. 9. Mr Gauci assessed that the applicant was able to complete "PTSD" days/hours. I assume that "PTSD" stands for part time suitable duties however Mr Gauci did not provide the hours per day or the number of days per week which the applicant could work nor state whether the days could be consecutive or needed to be alternate. The restrictions which were applied were lifting/carrying capacity floor to waist of 25kg, waist to shoulder of 10kg and overhead of 5kg and pushing/pulling ability of 25kg. Mr Gauci provided the following additional comment "lifting should be kept non-repetitive, prolonged tasks will likely need to be broken up with rests as tolerated."[34] 10. On 12 July 2024 Mr Gauci reported to EML that the applicant was continuing to experience shoulder pain noting that it had been difficult managing flare ups and aggravations since the last assessment. However, Mr Gauci noted that the applicant had been overexerting himself at times. Mr Gauci discussed with the applicant the importance of managing his physical output when at home to keep the inflammation down. 11. The results of a lifting assessment were floor to waist 25kg, waist to shoulder 10kg, overhead 5kg, single arm carry 10kg and push/pull 25kg. The applicant was aware of some level of discomfort with all lifts. 12. Mr Gauci again assessed that the applicant was able to complete "PTSD" days/hours. However again Mr Gauci did not provide the hours per day or the number of days per week which the applicant could work nor whether the days could be consecutive or needed to be alternate. The restrictions which were applied were lifting/carrying capacity floor to waist of 25kg, waist to shoulder of 10kg and overhead of 5kg and pushing/pulling ability of 25kg.

Mr Gauci again provided the following additional comment "lifting should be kept non-repetitive, prolonged tasks will likely need to be broken up with rests as tolerated." 13. Mr Gauci believed that the applicant was able to complete some level of employment in his current condition. Mr Gauci was of the opinion that the applicant would be best suited to something that involves breaks between repetitive movement and limited or no overhead lifting. He was also of the opinion that having a break between workdays would be beneficial.[35] 14. Dr Wijenayake, orthopaedic surgeon, who examined the applicant on 21 October 2024 providing a forensic report to the applicant dated 30 October 2024[36] noted that the applicant had shoulder surgery performed on 16 November 2023 in the form of a right acromioplasty and rotator cuff repair with the operation notes indicating findings of a large full-thickness supraspinatus tear, severe bursitis, and subacromial impingement. [37] 15. Dr Wijenayake records that the applicant reported baseline pain in the anterior aspect of his shoulder. This pain he rated as a 3 to 4 out of 10 on a visual analogue scale (VAS). The pain was aggravated by moving, lifting, or driving for extended periods of time. When aggravated, this pain becomes sharp and reaches a 6 out of 10 (VAS). The pain is improved by rest.

Mr Lean also experienced a reduced range of motion as well as some reduced function due to the symptoms in his shoulder.[38] 16. In the opinion of Dr Wijenayake the applicant is not totally unfit for work. If the applicant were to return to his previous employment, Dr Wijenayake recommend this return under the following restrictions. No heavy lifting of more than 10kg. No lifting above shoulder level and no repetitive lifting. The doctor recommends work days having a maximum of six hours a day with an hour break in the middle and a maximum of four days per week, totalling 24-28 hours per week. These recommendations are to ensure no aggravation of symptoms.[39] 17. In an open labour market, Mr Lean should have a restriction of no overhead lifting, no repetitive lifting, and lifting restrictions of 10kg. He will also require regular breaks for any manual work.[40] 18. A/Prof Miniter, orthopaedic surgeon, provided a forensic report to the respondent dated

17 June 2024 regarded the applicant as fit to return to his normal duties. 19. I do not accept the opinion of A/Prof Miniter as to the applicant's capacity. The doctor does not take history or explore in any way the nature of the applicant's pre-injury work duties and does not take a history in respect to the applicant's failed attempt to return to work. The opinion is also inconsistent with the applicant's attempt to return to his pre-injury duties where he suffered an aggravation of his condition within the first day. 20. I prefer the assessments of the applicant's functional capacity provided by the exercise physiologist, Mr Gauci. Whilst Mr Gauci is not a doctor he has assessed the applicant on multiple occasions, performed tests of his physical capacity and has been working with the applicant to improve his strength and functional capacity. Importantly Mr Gauci has also been advised as to when the applicant has suffered flare ups of his shoulder symptoms as a result of exceeding his physical capabilities. It would also seem that Dr Rahman adopted in his Certificate of Capacity dated 30 May 2024 (which was relied upon for Pinnacle Rehab for the vocational assessment) the capacities assessed by Mr Gauci. 21. The applicant's physical capacity as assessed by Mr Gauci is not necessarily inconsistent with the opinion of Dr Wijenayake as to the applicant's work capacity. Whilst Dr Wijenayake recommended no heavy lifting of more than 10kg. No lifting above shoulder level and no repetitive lifting and recommend maximum workdays of six hours a day with an hour break in the middle and a maximum of four days per week, totalling 24-28 hours per week. These recommendations were to ensure no aggravation of symptoms. Mr Gauci records that the applicant was suffering flareups of pain with activities and the restrictions which Mr Gauci placed on the applicant's lifting/carrying and pulling /pushing ability match the testing which Mr Gauci performed. In the most recent available reports from Mr Gauci dated 30 June 2024 and 12 July 2024 he commented that "lifting should be kept non-repetitive, prolonged tasks will likely need to be broken up with rests as tolerated." 22. I am therefore of the view that the applicant does have an incapacity for work. 23. The respondent bears the onus of proving the residual earning capacity. 24. I now turn to a consideration of suitable employment. 25. The respondent submits that I should accept the vocational options identified by Pinnacle Rehab as being occupations which are suitable for the applicant given the restrictions which arise as a result of the injury. 26. I accept that the occupations identified by Pinnacle Rehab are real and potentially available on the open labour market.[41] There was no submission made to the effect that they are not. 27. I now turn to a consideration of the three occupations identified by Pinnacle Rehab. However before doing so I note that whilst Dr Wijenayake does appear to indicate that the applicant could return to his pre-injury duties as a Truck Driver with restrictions the work capacity assessment of Pinnacle Rehab specifically rejected truck driving as a suitable employment option. Pinnacle Rehab excluded Truck Driver as a suitable employment option on the basis that the "[f]unctional requirement of the role would necessitate an upgrade to Mr Lean's capacity to ensure his suitability." I also note that the applicant attempted a trial of truck driving duties in early July 2024 suffering right shoulder pain after 4 hours.[42]

1. The vocational assessment report identifies among the usual tasks of a shop assistant the stacking and displaying of goods for sale, the wrapping and packing of sold goods as well as assisting with ongoing stock management and participating in stocktakes.
2. In respect to the physical demands of the role the vocational assessment report indicates that the duties are typically light to medium work in demand levels with the duties usually requiring frequent standing at sales counters or walking around assisting customers, locating merchandise, shelving products or setting up shop displays, the lifting and passing of items purchased across scanners, wrapping or pack goods, stretching and/or twisting movements are likely to be required occasionally when reaching up or down to shelves for merchandise. Bending, squatting or crouching movements may be required when demonstrating a product's use, picking items up or stocking shelves. Lifting, pulling or carrying requirements will be occasional and generally of a light to medium demand level for most sales of these types of products.
3. As part of the vocational assessment Bunnings Warehouse, Reece Group and Blacktown Building Supplies were contacted in respect to Retail Sales Assistant roles which were advertised on Seek. All three businesses reportedly advised that they could accommodate eight hours per day on alternate days, three days per week and considered the applicant to be a suitable candidate and that the applicant's age was not a barrier to his employment.
4. All three businesses also advised that the role would require lifting a variety of different building supplies, gardening supplies and trade materials as well as a cash handling facilities, however this would not exceed floor to waist 20kg, waist to shoulder 10kg, overhead 5kg. All three roles also required pushing and pulling to open doors however this would not exceed 25kg.
5. Mr Grimes submitted on behalf of the applicant that the role of Sales Assistant is not suitable. That duties such as assisting with the ongoing management of stock, stacking and displaying goods for sale, picking items and wrapping and packing goods sold would likely aggravate the applicant's condition.
6. I accept the applicant's submission. Whilst there is a lack of direct evidence as to the repetitive nature of the physical handling of the stock it appears that the duties do involve repetitive lifting and carrying as the role description includes the setting up of shop displays and the stocking of shelves.
7. Whilst the three contacted businesses expressed the opinion that the applicant is a suitable candidate, they do not appear to have been advised that the applicant is unable to repetitively lift/carry, push/pull to the weight restrictions identified in the Certificate of Capacity by Dr Rahman. Furthermore, whilst Dr Rahman has approved the occupation of Sales Assistant as a suitable vocational option the Vocational Options - Medical Review / Approval form which provided the description of the proposed roles to Dr Rahman to approve or reject significantly does not contain any detail or reference to the actual weights which the applicant would be required to lift/carry/push/pull.
8. The applicant reported to Pinnacle Rehab a fairly rapid increase in pain symptoms with repetitive lifting of comparatively low weights reporting that while lifting around 5kg above shoulder height for around five minutes he has a pain level of 6/10 in his right shoulder; that while pushing and pulling around 10kg for around five minutes he has a pain level of 6/10 and that while lifting around 5kg below shoulder height for around five minutes he has a pain level of 6/10.
9. This is consistent with Mr Gauci observing that "lifting should be kept non-repetitive, prolonged tasks will likely need to be broken up with rests as tolerated."
10. The vocational assessment report of Pinnacle Rehab does not take into account the aggravation of the injury which occurs as a result of repetitive lifting and carrying.
11. In the applicant's submission there is no indication from the "employer contacts" that non-consecutive days are available. I do not accept this submission all three of the contacted employers indicated that they could accommodate "8 hours per day on alternate days, 3 days per week."

1. The vocational assessment report identifies among the typical tasks performed by a Delivery Driver (van or car- light items), manoeuvring vehicles into position for loading and unloading, assisting with loading to ensure goods are arranged for ease of delivery and safely secured to avoid damage and arranging and performing unloading operations.
2. The vocational assessment categorised the demands of the role as light physical whilst observing that the duties included loading and unloading activities as well as frequent lifting and carrying.
3. Pinnacle Rehab contacted three businesses who had advertised for Delivery Drivers on Seek being Pizza Pasta Please, Dominoe's and Quality Food World. All three businesses reportedly indicated that they could accommodate eight hours per day on alternate days, three days per week. All three businesses reported that the applicant's age would not be a barrier to employment.
4. All three businesses advised that the role required the lifting and carrying of food items, beverages, and a mobile phone, however this would not exceed floor to waist 20kg, waist to shoulder 10kg, overhead 5kg as well as pushing and pulling open doors which would not exceed 25kg.
5. Mr Grimes submitted on behalf of the applicant that the vocational option of delivery driver is not suitable as the role entails duties sch as loading and unloading vehicles, frequent lifting and carrying as well as twisting of the body or neck when reversing.
6. I accept the applicant's submission. The description of the role indicates that repetitive lifting and carrying is required both in respect to the loading of the vehicle and then in respect to the delivery of the items.
7. The applicant reported to Pinnacle Rehab a fairly rapid increase in pain symptoms with repetitive lifting of comparatively low weights reporting that while lifting around 5kg above shoulder height for around five minutes he has a pain level of 6/10 in his right shoulder; that while pushing and pulling around 10kg for around five minutes he has a pain level of 6/10 and that while lifting around 5kg below shoulder height for around five minutes he has a pain level of 6/10.
8. This is consistent with Mr Gauci observing that "lifting should be kept non-repetitive, prolonged tasks will likely need to be broken up with rests as tolerated."
9. The vocational assessment report of Pinnacle Rehab does not take into account the aggravation of the injury which occurs as a result of repetitive lifting and carrying.
10. As with the role of Sales Assistant, whilst Dr Rahman has approved the occupation of Delivery Driver (van or car- light items) as a suitable vocational option the Vocational Options - Medical Review / Approval form which provided the description of the proposed roles to

Dr Rahman to approve or reject significantly does not contain any detail or reference to the actual weights which the applicant would be required to lift/carry/push/pull.

1. The vocational assessment report identifies the typical tasks performed by a Parking Inspector as checking parked cars within an allotted area to establish if a car has been parked illegally or for too long, issuing infringement notices and recording details of time and location, calling tow trucks to move illegally parked vehicles, reporting faulty meters, collecting money from parking meters/machines, reporting and organising the removal of abandoned vehicles and giving evidence in court if someone appeals the infringement notice.
2. The vocational assessment categorised the demands of the role as light physical demand levels; occasionally siting at a computer workstation; standing or walking is required constantly to inspect parked vehicles and meters; stretching and twisting may be required occasionally but is not a significant component of the job; bending, squatting or crouching will be frequent when marking tyres; checking meters, cars warrants and other details to issue tickets and repetitive hand and finger movements are frequently to constantly required when recording details into a handheld computer or writing out tickets.
3. Pinnacle Rehab contacted Mosman Council, Hays Facility Management and Byron Shire Council who had all advertised for Parking Officers on Seek. Whilst all three employers reported that the applicant was a suitable candidate, none of the three contacted employers indicated that they could accommodate eight hours per day on alternate days, three days per week.
4. Mr Grimes submitted on behalf of the applicant that the role of Parking Inspector involves duties that will likely aggravate the applicant's condition such as collecting money from parking meters/machines and constant standing or walking.
5. I do not accept the applicant's submission. There is no evidence that standing and walking have any impact on the applicant's right shoulder injury or symptoms. The applicant did report to Pinnacle Rehab that sitting for around 40 minutes increased his pain level to 4/10 in his right shoulder because posing his arms whilst sitting puts pressure on his injury. However, the applicant could alternate between sitting and standing whilst performing office duties with sit stand desks now being common and relatively inexpensive. The collecting of monies from parking machines/machines would appear to be the heaviest part of the job however it seems reasonable to assume given the quantity of cashless transactions and the electronic nature of modern parking meters/machines that this is unlikely to form a significant amount of the duties performed.
6. In my view simply because the three employers contacted by Pinnacle Rehab were seeking candidates for a 38 hour per week role but could accommodate 32 hours for the right candidate does not indicate that the role is not available with lesser hours. Job share, part-time employment and casual employment are all common employment options across most vocations. There is in my view nothing about the occupation of Parking Inspector which would indicate that the role would not be commonly available on a part-time basis and at lesser hours than 32 hours per week and on alternate days.
7. I am not bound by the review notice of 9 December 2024.
8. For the above reasons I find that the occupation of Parking Inspector is suitable employment for the applicant and is employment that "is real and is (potentially) available in the labour market at large".[43]
9. On 10 May 2024 Mr Gauci reported that the applicant was fit for eight hour shifts on three non-consecutive days. Dr Rahman on 30 May 2024 completed the Certificate of Capacity which certified the applicant with capacity for some type of work between 30 May 2024 and 28 June 2024 for eight hours per day, three alternate days per week. On 30 June 2024 and 12 July 2024 Mr Gauci assessed that the applicant was able to complete "PTSD" days/hours without detailing the hours per day or the number of days per week which the applicant could work nor state whether the days could be consecutive or needed to be alternate. Dr Wijenayake in October 2024 indicated that the applicant could work a maximum of four days per week, totalling 24-28 hours per week.
10. As I have previously stated I prefer the opinion of Mr Gauci in respect to the applicant's physical capacity and restrictions. Unfortunately, Mr Gauci does not detail in his reports of

30 June 2024 and 12 July 2024 what the part time hours are which the applicant can work. However there only appears to be a marginal change on testing between the applicant's capacity as reported on 10 May 2024 to that of 30 June 2024 and 12 July 2024 which may indicate that the hours previously assessed remain unchanged. 11. Doing the best I can with the evidence before me I am of the view and find that the applicant has the capacity and has had the capacity to work as a Parking Inspector since 30 April 2025 24 hours per week (eight hours per day, three days per week). The vocational assessment report of Pinnacle Rehab reported, based on labour market analysis, remuneration of $816 per week for a 24 hour work week as a Parking Inspector. The evidence of Pinnacle Rehab as to the earnings of a Parking Inspector are unchallenged and I accept that evidence. 12. For the above reasons I find that the applicant has had from 30 April 2025 and continues to have the capacity to earn $816 per week working 24 hours per week as a Parking Inspector. 13. The respondent submits that the applicant is entitled to receive a period of notice pursuant to s 80 of the 1998 Act from 30 April 2025 when leave was granted pursuant to s 289A to dispute incapacity. No submissions were made by the respondent on this issue. I accept this submission and have previously given reasons for this view. I am not of the view that the granting of leave to dispute incapacity is a work capacity decision as defined by s 43 of the 1998 Act. No decision has been given by the insurer and the necessary information has not been provided. In my view and I find given the weekly compensation payments which the applicant should have received and will receive to 30 April 2025 s 80(4)(b) applies and the applicant is entitled to six weeks notice from 1 May 2025 to 11 June 2025.

[1] Application to Resolve a Dispute (ARD) p. 1.

[26] Clause 41(3) Workers Compensation Regulation 2016.

[41] See Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar).