1. Mark Samuel (the applicant) is currently 56 years-of-age. He commenced working for Allmen Industrial Services Pty Ltd (the respondent) as a labourer around 10 years ago.
2. He injured his left knee in the course of his employment with the respondent on

15 May 2023. The respondent has accepted liability for the injury and has made payments to the applicant pursuant to the Workers Compensation Act 1987 (the 1987 Act) since the date of the injury. The applicant has not worked since the date of the injury and continues to receive weekly benefits compensation from the respondent. 3. The respondent has however issued a notice to the applicant pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 8 April 2025, in which it made a work capacity decision pursuant to s 43(1)(c) of the 1987 Act that he was capable of earning $1,800 per week in suitable employment as a weighbridge operator, working eight hours per day, five days per week. The notice also identified the role of a process/assembly worker as a suitable vocational option for him. By virtue of the notice, the applicant's weekly benefits compensation were to cease on

17 July 2025. 4. The respondent had issued a previous notice pursuant to s 78 of the 1998 Act dated

22 April 2024, in which it also made a work capacity decision. However, it withdrew that notice pursuant to a notation made in a previous Personal Injury Commission (Commission) Certificate of Determination dated 14 August 2024. 5. Following a request by the applicant, the respondent reviewed the 8 April 2025 notice, and maintained the work capacity decision made by the notice, in a further decision dated

3 June 2025. It was confirmed that the applicant's weekly benefits compensation were to cease on 17 July 2025. 6. However, the applicant lodged the Application to Resolve a Dispute (ARD) in these proceedings with the Commission (challenging the work capacity decision made by the 8 April 2025 notice) on 16 July 2025, and therefore, pursuant to s 289B of the 1998 Act, the work capacity decision is stayed until the date of my determination in the proceedings. The applicant continues currently therefore to receive weekly benefits compensation from the respondent on the basis of him having no current work capacity.

1. The parties have agreed that the only issue for determination in the proceedings is:

(a) what is the extent (if any) of the applicant's current work capacity as a result of his left knee injury on 15 May 2023.

In determining this issue, it is relevant to note that the ARD claimed weekly benefits compensation from 16 July 2025 pursuant to s 38 of the 1987 Act. However, following a preliminary conference in the proceedings on 20 August 2025, I made a direction (dated 21 August 2025) which included the following notation:

"The applicant confirms that his claim for weekly benefits compensation is an ongoing claim from 16 July 2025 pursuant to s 37 of the Workers Compensation Act 1987 (the Act) - he alleges no current work capacity during this period."

I made this notation as the parties agreed that as at 20 August 2025, the applicant had not yet received 130 weeks of weekly benefits compensation, in order to bring his claim in that regard within s 38 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. I am satisfied that the parties to these proceedings 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 proceedings 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 in the proceedings.
2. The proceedings were listed for conciliation/arbitration before me on 24 October 2025. On that occasion, the applicant was represented by Mr Boris Necovski of counsel, instructed by Ms Annis-Brown and Mr Manning; and the respondent was represented by Mr David King of counsel, instructed by Ms Holmes. The applicant was present, as was a representative from the respondent's insurer, Ms Kumar.
3. Following a lengthy conciliation conference, the proceedings could not be resolved, and needed to proceed to an arbitration hearing. However, there were some preliminary issues.
4. First, the applicant sought to admit documents lodged with the Commission by way of an Application to Lodge Additional Documents dated 22 October 2025, being medico-legal reports from Drs Vijay and Workman, together with correspondence between his solicitors and Dr Vijay (from 20 August 2025) chasing the provision of a medico-legal report from that doctor. The respondent opposed the admission of the documents and I determined not to admit the documents. My reasons in this regard (together with the submissions made by both the applicant and the respondent) were recorded, and form part of the Commission's record. In summary:

(a) despite the applicant's submissions, it was clear to me that the medico-legal reports did substantially more than reply to evidence (a report from

Dr Machart) served upon the applicant by the respondent on 3 October 2025 - indeed, the information sought from Dr Vijay had been chased from the doctor by the applicant's solicitors for some time prior to 3 October 2025;

(b) I considered therefore that the documents should have been obtained prior to the lodgement of the ARD - especially in circumstances where there were no medico-legal reports from either Dr Vijay or Dr Workman attached to the ARD;

(c) although the respondent had previously conceded (at a preliminary conference in the proceedings on 20 August 2025) that it could meet a case in which the applicant alleged consequential injuries to his right knee and both hips, I considered that reliance by him upon the reports of Drs Vijay and Workman altered the evidence in such a case to a significant degree, so as to make it unfair to the respondent to have to meet the case as altered;

(d) despite the applicant's submissions, I accepted that the admission of the documents would highly prejudice the respondent in circumstances where it had only had access to Dr Workman's report since 9 October 2025 and to Dr Vijay's report since 22 October 2025, and in circumstances where it wished to seek Dr Machart's opinion regarding the opinions in those reports, and

(e) weighing up the interests of justice, I considered that it was appropriate to refuse to admit the documents into evidence.

1. Second, the respondent sought to admit documents lodged with the Commission by way of an Application to Lodge Additional Documents dated 16 October 2025, being a medico-legal report from Dr Machart dated 1 October 2025 (referred to at paragraph 11(a) above). The applicant opposed the admission of the documents and I determined not to admit the documents. My reasons in this regard (together with the submissions made by both the respondent and the applicant) were recorded, and form part of the Commission's record. In summary:

(a) these proceedings were lodged with the Commission on 16 July 2025;

(b) Dr Machart only examined the applicant on 18 September 2025 and then delayed providing his report until 1 October 2025 - no adequate reasons for these delays were provided by the respondent;

(c) therefore, after service of his report, the applicant only had three weeks to obtain evidence in reply to the report;

(d) although the applicant obtained that evidence in reply, it was prevented from relying upon it in these proceedings - following the respondent's objection in this regard and my determination at paragraph 11 above;

(e) I agreed that the applicant would therefore be significantly prejudiced if the report was admitted in the proceedings, and

(f) weighing up the interests of justice and the prejudice to both parties, I considered that it was appropriate to refuse to admit Dr Machart's report into evidence.

1. Third, the applicant amended the pleadings in the ARD in order to solely rely upon "a personal injury on 15 May 2023 to the applicant's left knee" - he withdrew any reliance upon any consequential conditions to his right knee and both hips.
2. Fourth, the applicant confirmed that he was alleging no current work capacity. The parties also confirmed that they had agreed his current indexed PIAWE to be $815.
3. The only issue in dispute in the proceedings (see paragraph 7 above) was then also agreed between the parties.
4. Time constraints then however prevented submissions being made by the parties in relation to this issue. Written submissions in this regard were ordered, and confirmed in a direction issued by me on 28 October 2025. The direction also confirmed that I would issue my determination in the proceedings 'on the papers' following the receipt of the written submissions.
5. I thank the parties for providing their written submissions in accordance with the direction.

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

(a) the ARD and attached documents, and

(b) the respondent's Reply (Reply) and attached documents.

1. In this regard, I note that both orally on 24 October 2025 and by way of my

28 October 2025 direction, I confirmed that these documents would be the only documents admitted in evidence before me. However, I also note that the applicant has lodged a further Application to Admit Late Documents (attaching a certificate of capacity from Dr Vijay dated 17 September 2025) dated 24 October 2025, but only accepted by the Commission on 27 October 2025. This application was not referenced by the applicant during the proceedings on 24 October 2025, and in accordance with my 28 October 2025 direction, the application will not be granted.

1. The applicant relies upon his first statement signed by him on 12 July 2024 - found at page 1 of the ARD.
2. He says that he attended school until one week into Year 9, and then performed work including cotton chipping, fruit picking, farm work, and chopping wood. He says that "I found that I was always better with my hands rather than academics."
3. He says that he moved to the Newcastle area in the early 2000's and worked in construction and labouring since then, commencing his employment with the respondent about 10 years ago.
4. He worked at various construction sites with the respondent, and performed duties such as waterproofing, jackhammering, grinding, moving equipment, concreting, demolition work, as well as assembling and dismantling scaffolding. His work required heavy lifting (even up to 80 kg), bending, crawling, twisting, and climbing.
5. He says:

"My skills are limited to the manual labour work I have done all my life. I am proficient in working with tools, laying pipes, working on retaining walls, and assisting other trades with filling, gyprocking, plastering, and bricklaying...I have not developed any other skills and have never studied or undertaken any courses...I have a General Construction Induction Card ('White Card') and a current class C driver's licence...I do not have any other tickets, licences or qualifications...I don't know how to use a computer. I have never used computers in my life...I don't know how to use emails... I have never done any cash handling."

1. In relation to prior injuries or conditions, the applicant advises that he injured his right knee approximately 25 years ago and underwent surgery. He recovered well however and had "no problems" with his knees or hips prior to 15 May 2023.
2. The applicant then explains the circumstances of his left knee injury on 15 May 2023. He fell approximately 2.5 m from a wall, landing in a muddy hole, and he felt intense pain in his left knee with rapid swelling. He completed his shift on the day, and sought medical attention from his general practitioner (Dr Vijay) on the following day. He was certified unfit for work.
3. He was referred to a specialist, Dr Berton, who he initially consulted with on 22 May 2023. He was initially provided with a left knee brace, with physiotherapy and medication also recommended. This conservative treatment however did not improve his left knee symptoms, and he underwent arthroscopic surgery with Dr Berton on 18 August 2023.
4. Dr Berton later recommended further surgery for him, and he sought a second opinion from Dr Workman on 6 November 2023. Dr Workman however advised against further surgery, but recommended continuing physiotherapy and exercise physiology.
5. In relation to his current status and capacity to work (as at the date when he signed his first statement), he advises:

(a) he has not returned to work;

(b) his left leg still gives way and hurts - although the pain in it has "gradually improved";

(c) his friends help him with his domestic tasks;

(d) he struggles navigating the steps (three at the front door and three at the back door) leading to his house;

(e) he avoids driving manual vehicles;

(f) he is still hopeful of returning to his pre-injury employment role;

(g) Dr Vijay has certified him as fit for 24 hours per week work in suitable employment, with restrictions including not lifting greater than 10 kg, not standing for longer than 20 minutes, sitting as tolerated, avoiding working at heights, as well as avoiding ladders and walking on uneven surfaces, and

(h) Dr Berton has suggested that he re-train as a forklift driver - however, some years ago, he attempted a course to obtain a forklift driving licence but "was not able to get the licence, as I was not able to do the theoretical part of the course, and I ended up having an argument with the instructor".

1. In relation to the respondent's notice pursuant to s 78 of the 1998 Act dated 22 April 2024 (in which it made a work capacity decision suggesting his fitness to work as a delivery driver or a weighbridge operator), he advises:

(a) "I am unsure what experience from working on construction sites is relevant to delivery driving or being a weighbridge operator.";

(b) he does not possess the money handling, computer or phone skills necessary for those roles;

(c) Dr Vijay believes that his left knee would not be able to cope with the getting into and out of a vehicle necessary in the role of a delivery driver;

(d) he would struggle with the interpersonal skills and time management skills required for the roles, and

(e) "I have been a labourer all my working life. That is all I know how to do. I do not think I would be able to do any other type of work".

1. The applicant then relies upon his second updated statement signed by him on

16 July 2025 - found at page 9 of the ARD. 2. In relation to his current left knee condition, he advises:

(a) he experiences ongoing pain in both his knees, with the left knee having worse pain - he also still gets swelling in his left knee;

(b) his left leg becomes "fully numb" if he stands for too long - Dr Vijay recommends that he stand for no more than 15 minutes;

(c) his left knee is unstable, and sporadically gives way, causing him to fall;

(d) Dr Vijay and Dr Workman have advised him not to return to manual labour type work as they are concerned that the instability in his left knee could cause him to have a serious accident;

(e) both his knees "also pop and crackle with movement";

(f) he struggles with stairs, ladders, and walking long distances, and

(g) he struggles with his housework, particularly vacuuming.

1. In relation to the respondent's current notice pursuant to s 78 of the 1998 Act dated

8 April 2025, he advises of his inability to perform the role of a weighbridge operator full-time as:

(a) he continues to struggle with persistent pain;

(b) as a weighbridge operator, he would need to stand for long periods, direct drivers to where they need to go, move equipment, and ensure the cleanliness of the weighbridge - he is worried that his left knee would give way causing him further injury, if he was required to perform this work;

(c) he struggles with reading and writing and his skills in an office environment are very limited - he cannot use a computer independently and does not use email for correspondence, and

(d) he has no experience in any customer service role.

1. Further, in relation to the suggestion in the notice dated 8 April 2025 that the applicant would be able to perform the role of a process/assembly worker, he advises of his inability to perform this role, as:

(a) he would not be able to stand for prolonged periods of time, or perform fast-paced work;

(b) his lifting tolerance because of the instability of his left knee is now 5 kg, as certified by Dr Vijay;

(c) he is still in a lot of pain physically, and

(d) his left knee is prone to giving way without any notice, causing him to fall.

1. Finally, the applicant confirms that he has never consulted with Dr Perla on behalf of the respondent.
2. Aside from the applicant's statement evidence, I do not find the other factual evidence attached to the ARD (including a claim form, a list of payments made by the respondent, and various claim correspondence) to be particularly relevant to the sole issue requiring determination by me. In accordance with cl 67D(2) of the Personal Injury Commission Rules 2021 (the Rules), I will therefore not detail that evidence further unless specifically directed to aspects of it during the parties' submissions.

1. In these proceedings, I am required to determine the extent of the applicant's current work capacity, which the respondent disputed by way of its notice pursuant to s 78 of the 1998 Act dated 8 April 2025.
2. The ARD contains a considerable amount of historical medical evidence regarding the applicant's treatment for his left knee injury since 15 May 2023. I have considered all of this evidence, but find most of it to be of little relevance to the current determination required by me. Pursuant to cl 67D(2) of the Rules therefore, I will only be detailing the medical and vocational evidence that I have found to be relevant in this regard, as well as any other evidence that I am specifically directed to during the parties' submissions.
3. The applicant's solicitors arranged for him to be medically examined by Professor Ghabrial on 14 May 2025. The doctor has produced two reports bearing that date (found at pages 125 and 128 respectively of the ARD), the second of which assesses the applicant's whole person impairment (WPI) as a result of his injury at 24%. This assessment includes assessments in relation to consequential conditions (not relied upon by the applicant in these proceedings) but it also includes a 13% WPI assessment in relation to the applicant's left knee.
4. In the doctor's first report:

(a) the doctor records:

(i) the applicant injured both his knees and both his hips on 15 May 2023;

(ii) Dr Berton performed reconstructive surgery on 8 August 2023 in relation to a full tear of the applicant's left knee anterior cruciate ligament;

(iii) Dr Workman has suggested that the applicant will require a left total knee replacement within the next five years;

(iv) on examination of the applicant's left knee, the doctor found varus deformity, mild swelling, mild effusion, mild quadricep muscle wasting, moderate tenderness over the medial aspect of the knee, 10°-110° range of motion, moderate crepitations, unstable ligaments, and moderate pain in the patellofemoral joint;

(v) on examination of the applicant's right knee, the doctor only clinically found mild crepitations and mild pain in the patellofemoral joint, with 0°-145° range of movement, and

(vi) on examination of the applicant's hips, the doctor only clinically found "irritability", with moderately reduced movement on the left side;

(b) the doctor opined that the applicant had "sustained injuries to his hips and knees, mainly the left knee" during the course of his employment with the respondent - as a result of the left knee injury, he had developed post traumatic osteoarthritis in that knee, and

(c) in relation to capacity, the doctor opined:

"He is not fit for activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven surfaces, standing for lengthy periods or walking for long distances...Due to the involvement of both knees and both hips, and the severity of his left knee which is still showing some instability, I believe he is not fit to return to the workforce in any capacity."

1. The ARD also contains a large number of certificates of capacity (found from page 344), mostly issued by the applicant's treating general practitioner, Dr Vijay. The certificates do not cover the whole period from 15 May 2023 to date, but they do certify that the applicant has had capacity for some type of work (often on a reduced hours basis) since

9 October 2023. 2. The first certificate suggesting that the applicant had capacity to work eight hours per day five days per week was dated 8 October 2024, but it noted the following additional restrictions:

(a) lifting/carrying - up to 15 kg;

(b) standing - up to 20 minutes;

(c) bending/twisting/squatting - as tolerated;

(d) sitting - as tolerated;

(e) pushing/pulling - up to 15 kg;

(f) driving - as tolerated;

(g) avoid - ladders, walking on uneven surfaces, and

(h) 5 minutes break required after 60 minutes of work.

1. While the certificates have continued since 8 October 2024 to certify the applicant to have capacity to work eight hours per day five days per week, the restrictions mentioned in the certificates (in relation to lifting/carrying, standing, and pushing/pulling) have increased since 18 March 2025. The last certificate in the ARD (relevant to the period between

26 June 2025 and 7 August 2025) includes the following restrictions in this regard:

(a) lifting/carrying - up to 5 kg infrequently;

(b) standing - up to 15 minutes, and

(c) pushing/pulling - up to 10 kg infrequently.

1. It is relevant to note that all the certificates solely refer to the applicant's left knee injuries, and not any consequential conditions.
2. In relation to the other evidence relied upon by the applicant in the ARD from his treating medical practitioners, all of the reports pre-date (often to a considerable degree) the respondent's work capacity decision dated 8 April 2025. As previously noted, the relevance of these reports in a consideration of the degree of the applicant's current work capacity as at that date, is therefore limited. I do note however:

(a) in relation to Dr Berton:

(i) the most recent report from the doctor in the ARD is dated 26 June 2024 (found at page 216) - the doctor then refers to a "weight limit of 10 kg" in place for the applicant - the doctor also refers to a recent fall suffered by the applicant when he slipped and hyperflexed his left knee before the fall;

(ii) the doctor was pessimistic about the applicant's goal to return to his pre-injury work - see the doctor's reports dated 3 June 2024 (found at page 212) and 26 May 2024 (found at page 208), and

(iii) in the doctor's 6 May 2024 report (found at page 204), the doctor notes that the applicant's left knee "still occasionally drops out", that he could cycle on an exercise bike without difficulty, that he had "trialled" kneeling, and that he had difficulty squatting;

(b) the most recent report in the ARD (found at page 235) from the applicant's physiotherapist (Joel Irvine) is dated 18 June 2024 - the physiotherapist opines that the applicant has capacity for some type of work 18 hours per week with a lifting/carrying capacity of 20 kg as tolerated, with a pushing/pulling capacity of 20 kg, with a standing/walking tolerance of 60 minutes with short rests, and with a bending/twisting/squatting ability as tolerated - the physiotherapist however warns:

"The following capacities and tolerances have been measured and or reported in a controlled 'clinical' environment. With regard to their use in certification, further consideration may need to occur as to the appropriateness and repeatability of these measures in the working environment.";

(c) in relation to Dr Workman:

(i) the most recent report from the doctor in the ARD is dated 1 July 2024 (found at page 242) - the doctor notes that the applicant feels capable to return to work as a labourer and opines that a trial in this regard would be reasonable "for him to return to work as he feels able", and

(ii) in the doctor's initial 6 November 2023 report however (found at page 239), the doctor opines that the applicant "is unlikely to ever return to labouring", and "his only real remaining option would be rehabilitation and strengthening" with a view to allowing him to seek sedentary work;

(d) there is a report from a treating rheumatologist (Dr Toh) dated 21 May 2024, and found at page 243 of the ARD - of relevance, the doctor notes that the applicant was then at "60% recovery" following his left knee arthroscopy, and

(e) in relation to Dr Vijay's clinical notes (found from page 272 of the ARD), there are no entries after 30 July 2024 - various entries however during July 2024 refer to a care plan required regarding the applicant's left knee; limited left knee mobility; ongoing left knee pain; numbness and swelling; an ability to walk for 10-15 minutes, and an unstable left knee after a recent fall.

1. Finally, the applicant relies upon two vocational reports from a rehabilitation counsellor,

Mr Dominic Manca, dated 22 July 2024 (found at page 69 of the ARD) and 8 May 2025 (found at page 107 of the ARD). The first report addressed the respondent's work capacity decision dated 22 April 2024, and the second report relevantly addressed the respondent's work capacity decision dated 8 April 2025. 2. Mr Manca's executive summary to his second report is as follows:

"1. Mr Samuel is a 55-year-old male ex-construction labourer, with a left knee injury. I assessed him for the second time, on 7 May 2025. He has not worked for around 2 years.

2. To reiterate my prior conclusions, he physical [sic] and verbal [sic] presents as one might expect of an individual who exited school in year 9. He performed poorly at school, has worked continuously in unskilled labouring roles, and demonstrates difficulties with literacy, digital technology, and non-physical indoor or interpersonal work. He is digitally averse in personal, social and occupational domains.

3. Formal reasoning testing (section 1) indicates that Mr Samuel lacks the aptitude and experience in digital, organisational, and customer service domains required for Weighbridge Operator duties, with low capacity for acquiring new skills in entry-level roles.

4. As for Process/Assembly Work, he is unable to meet the static standing demands and has no recent experience applying core skills such as reliability, attention, and effective teamwork.

5. I have read the updated evidence (Dr Perla's report) which does not appear to be relevant to the vocational issues under consideration. Dr Perla's has not considered my prior report, and does not comment on age, education, training, or experience. Moreover, Dr Perla appears to have disregarded the realistic physical demands of Process /Assembly Work.

6. In respect to Recovery Partners' report, I opine it is methodologically flawed and misleading in the context of labour market research, and Mr Samuel's vocational capacity.

7. The report did not portray the facts, that Mr Samuel has a narrow vocational profile with low skills and abilities, minimal adaptability (injury disclosure, job seeking capabilities, presentation to employers), and poor alignment with jobs outside labouring.

8. In my opinion, the suitable employment criteria is not met.

9. While Mr Samuel has outstanding job seeking and vocational rehabilitation needs, realistically, his prospects for successful reintegration into unfamiliar employment, is poor."

(a) the applicant has now accepted that he will not be able to return to work as a construction worker;

(b) the applicant has not participated in any work trials, vocational retraining, or job seeking education - he has limitations in his job seeking ability, as he has no email account and is unaware of how to seek employment online;

(c) (following testing - the test of abstract reasoning), the applicant faces significant challenges with core administrative tasks and learning new tasks - he has slow cognitive processing speed, reduced mental flexibility to problem solve, low attention to detail, and low ability to adapt to processes of a clerical nature - this test of abstract reasoning measures a person's ability to reason and solve problems and is helpful when considering work roles that require a capacity for logical reasoning, pattern recognition, and adaptability to unfamiliar tasks - in his cohort (unskilled workers), the applicant was found to have below average reasoning ability, lower than 98% of others in the cohort, and in a cohort of administration workers, the applicant was found to have reasoning ability lower than 99% of others;

(d) in relation to the applicant's potential employment as a process/assembly worker identified in Mr Elmasri's report (discussed at paragraphs 64-67 below) - this would be unsuitable as:

(i) the work is fast paced - Mr Manca confirms this by speaking to two of the employers identified by Mr Elmasri;

(ii) there is constant standing involved in the work - Mr Manca confirms this by speaking to two of the employers identified by Mr Elmasri - the first employer identified by Mr Elmasri told Mr Manca (contrary to what is recorded in Mr Elmasri's report) that "the opportunity to have breaks from standing may not always be possible", and the second employer identified by Mr Elmasri told Mr Manca (again contrary to what is recorded in Mr Elmasri's report) that "standing/loading restrictions were reported to be likely difficult to accommodate";

(iii) there is a risk of re-injury from constant standing;

(iv) the applicant retains low skill levels in reliability, attention to detail, and time management, which are necessary skills for work as a process/assembly worker;

(v) the applicant will have difficulties learning unfamiliar tasks and acquiring new information to support skill development - the work environment of a process/assembly worker has limited similarity to the work environment of a labourer;

(vi) one of the employers identified by Mr Elmasri informed Mr Manca that the work can also involve climbing ladders and steps;

(vii) the skills and abilities required by the work are outside the applicant's experience, recently practiced skills, and self-confidence, and

(viii) the applicant would be a "poor candidate" for training in areas involving machine operating with digital interfaces - as would be necessary in relation to one of the employers identified by Mr Elmasri;

(e) in relation to the applicant's potential employment as a weighbridge operator identified in Mr Elmasri's report - this would be unsuitable as:

(i) two of the three employers identified by Mr Elmasri in fact advised Mr Manca that the applicant did not have the necessary transferable skills to be considered suitable for this work;

(ii) the other employer identified by Mr Elmasri advised Mr Manca that the work required operating the weighbridge, recording and maintaining accurate data, providing excellent customer service, attention to detail, communication skills, and multi-tasking skills - Mr Manca opines that such requirements are unachievable for the applicant and that "I disagree that despite having 'no experience' as a Weighbridge Operator, Mr Samuel can possibly be theoretically and realistically skilled or hold an acceptable level of presentation to obtain such work" - Mr Manca refers to his testing of the applicant (see paragraph 49(c) above) to justify these opinions, and

(iii) Mr Manca quotes from his first report:

"Mr Samuel has not worked in an office environment, applied written communication skills in a workplace, provided customer service, or operated digital tools (socially or occupationally) at the requisite level. He has no computer skills and will struggle to learn new skills in this area. In the absence of a properly facilitated work trial, he falls short in the required skills and experience.";

(f) in relation to Dr Perla's opinion:

(i) the doctor says that Dr Vijay approved the roles of a process/assembly worker and a weighbridge operator for the applicant - but there is no documentation from Dr Vijay expressly confirming such an approval in relation to all the inherent requirements associated with those roles, and

(ii) the doctor does not adequately consider the static standing requirements associated with the role of a process/assembly worker;

(g) while the applicant's age is not necessarily a barrier to employment if he had experience in the roles proposed, he does not in fact have that experience and would at least require a work trial or further education to increase his employability - there has been no effort by the respondent to explore retraining in this regard, and Mr Manca advises:

"While his abstract reasoning test results suggest formal vocational training may be outside of his capabilities, a suitably identified form of training or rudimentary coursework should at least be explored to consider if it would be helpful to increase the chances of obtaining employment.";

(h) the applicant is assessed as incapable of job seeking independently, considering his total lack of computer literacy, and

(i) in relation to the applicant's education and experience, Mr Manca quotes again from his first report:

"Mr Samuel left school in year 9, has not been required to utilize written communication or any type of digital tool in a workplace, and has achieved a basic safety induction certificate in respect to training. He is assessed to be unskilled in any type of digital technology tasks, does not own a computer, and is unable to use a smart phone or similar device for job seeking or employment duties. His skills are limited to labouring, and these do not transfer to driving, office, or customer service roles."

1. The Reply also contains a considerable amount of historical medical evidence regarding the applicant's treatment for his left knee injury since 15 May 2023. I have considered all of this evidence, but again find most of it to be of little relevance to the current determination required by me. Pursuant to cl 67D(2) of the Rules therefore, I will only be detailing the medical and vocational evidence that I have found to be relevant in this regard, as well as any other evidence that I am specifically directed to during the parties' submissions.
2. The respondent initially obtained a report from an injury management consultant,

Dr Bennett, dated 26 February 2024. The report is found at page 169 of the Reply. 3. The doctor reviews medical information provided to him regarding the applicant's treatment for his left knee injury since 15 May 2023. The doctor then obtains the following information from the applicant:

(a) his left knee pain is rated as 3/10 - the knee gives way daily if his knee brace is removed or when climbing stairs - he therefore wears a knee brace to prevent these collapses and he also uses a walking stick to mobilise - his posterior knee numbness is improving - he is unable to ascend or descend any stairs;

(b) he has no pain in his right knee, but has occasional numbness as well as "the sensation of fatigue in his thigh" after exercise - the knee has also become unstable since his left knee injury;

(c) he has constant left hip pain (rated between 4/10 and 6-7/10) with numbness, but no radiation, stiffness, or giving way, and

(d) he has occasional right hip pain (rated at 2/10) with numbness, but no radiation, stiffness, or giving way.

1. The doctor conducts a physical examination of the applicant, and then discusses his work capacity with his physiotherapist (Joel Irvine) and Dr Vijay. The physiotherapist advises the doctor of the applicant's current restrictions:

(a) lifting/carrying - 4 kg;

(b) standing - 45 minutes;

(c) bending/twisting/squatting - as tolerated;

(d) sitting - 45 minutes;

(e) driving - 30-45 minutes in an automatic car;

(f) avoid - steps, ladders, stairs, and uneven surfaces, and

(g) the roles of a delivery driver and a weighbridge operator would be suitable - the role of a process/assembly worker would not be suitable.

Dr Vijay then advises the doctor of the applicant's current restrictions:

(a) lifting/carrying - 2 kg;

(b) standing - up to 5 minutes;

(c) bending/twisting/squatting - as tolerated;

(d) sitting - as tolerated;

(e) driving - as tolerated in an automatic car;

(f) avoid - steps, ladders, stairs, and uneven surfaces, and

(g) the roles of a delivery driver and a weighbridge operator would be suitable - any seated roles are appropriate.

1. The doctor concludes by accepting the restrictions certified by the physiotherapist (rather than Dr Vijay) and agreeing that the roles of a delivery driver and a weighbridge operator for the applicant would be suitable, but not the role of a process/assembly worker.
2. There is also in the Reply (at page 71) a response from Dr Bennett to Procare signed by the doctor on 3 March 2024, in which the doctor says that the applicant is not suitable for the role of a process/assembly worker but is suitable for the role of a weighbridge operator 20 hours per week in accordance with the restrictions certified by the physiotherapist.
3. The respondent has since obtained a further report from a different injury management consultant, Dr Perla, dated 28 February 2025. The report is found at page 166 of the Reply.
4. Dr Perla does not consult with the applicant, but instead reviews documentation and talks to Dr Vijay. He only takes a history of a left knee injury to the applicant on 15 May 2023. He says that he understands the applicant's current restrictions to be - "to work 8 hours a day 5 days a week with a 15 kg lift, pull, push restriction standing as tolerated, avoiding step, stairs, ladders and walking on uneven surfaces". He says Dr Vijay advises him:

"Dr Vijay was concerned about the possibility of having to climb stairs and hence he stated that he did not agree with the option of delivery driver, only because there may be, from time to time, an issue with having to negotiate stairs...However, he did state he was in agreement for the options of Process/Assembly Worker and Weighbridge Operator, again as long as there was no necessity to climb stairs, ladders etc."

1. The doctor then concludes with the following opinion:

"In summary therefore, it appears that Mr Samuel has had a significant amount of treatment in relation to his left knee including surgery etc but still has ongoing symptoms noting from what I can see from the file, he did not have an ACL repair...As far as his vocational options are concerned, treating doctor has agreed that the options of Process/Assembly Worker and Weighbridge Operator are appropriate working 8 hours a day, 5 days a week, however the option of Delivery Driver (light), Dr Vijay stated it is not appropriate as he was concerned that there may be from time to time the necessity to negotiate stairs etc...I would agree that it would be reasonable for Mr Samuel to be certified fit for normal pre-injury hours with appropriate restrictions as detailed above, likewise avoiding stairs, ladders etc and I agree that the options of Weighbridge Operator and Process/Assembly Worker would be appropriate."

1. Finally, the respondent relies upon three vocational reports, dated 29 November 2023 (found at page 15 of the Reply), 4 March 2024 (found at page 30 of the Reply), and

26 March 2025 (found at page 45 of the Reply). 2. The first report was prepared by Procare. It was prepared at a time when the applicant had only been certified as having capacity for 20 hours per week work with significant restrictions (including no lifting/carrying/pushing/pulling, and only standing for five minutes with crutches). Nevertheless, the report identifies suitable employment options as a process/assembly worker, a delivery driver and a weighbridge operator "based on

Mr Samuel's transferrable vocational skillset". It recommends a labour market analysis report in relation to these three options, once the applicant's capacity for employment increases. It also recommends that Procare deliver a job seeking education program for the applicant (which however does not appear to have been offered to the applicant, according to Mr Manca - see paragraph 49(b) above). 3. Relevantly, the report also:

(a) advises that the applicant possesses appropriate English language communication and literacy skills "that could be suitably transferred to alternative employment";

(b) notes that the applicant does not possess any computer skills, knowledge or experience - "he has never turned on a computer";

(c) notes that the applicant can use a mobile phone for text messaging, phone calls, and accessing maps;

(d) notes that the applicant does not have an email address;

(e) obtains an employment history that the applicant "pursued a career out of playing rugby league until he was in his early 30's" - and that he then performed construction labouring jobs;

(f) advises that the applicant requires assistance with his job seeking competency - including education regarding vocational programs, preparing a resume, preparing employment applications, education regarding job seeking methods, and education regarding interview techniques;

(g) notes the applicant's desire to return to construction labouring if he was able to - "He noted that this is his only experience and that he thoroughly enjoyed his line of work and believed this to be the best option for him.", and

(h) considers the applicant to have skills such as the ability to follow instruction; the ability to work in a methodical manner; the ability to work collaboratively in a team environment; the ability to complete hand written paperwork; good communication and interpersonal skills; listening skills; rapport skills; the ability to work unsupervised, and time management skills.

1. The second vocational report relied upon by the respondent was also prepared by Procare. It is a labour market analysis report (obtained from direct employer contact) in relation to employment options for the applicant of a delivery driver and a weighbridge operator. As the role of a delivery driver was not an employment option for the applicant referred to in the respondent's 8 April 2025 work capacity decision, I consider Procare's analysis in this regard to have limited relevance to my determination in these proceedings, especially considering the opinions of Drs Perla and Vijay (see paragraphs 57-58 above) that it is not a suitable employment option for the applicant.
2. In relation to the employment option of a weighbridge operator however, Procare obtained the following relevant information regarding the tasks and duties involved, the skills and qualifications required, the functional demands, age-related considerations, and the work hours, from three employers:

(a) employer 1 - weighing vehicles; communication with drivers; data entry and record keeping functions; cash handling; ability to work independently; attention to detail; basic computer skills preferred; prior experience advantageous; no formal qualifications required; role requires a combination of sitting, standing and walking; role involves working in an office; role does not involve lifting over 4 kg; no age-related considerations, and requirement to work eight day fortnights with 9.5 hour shifts;

(b) employer 2 - weighing vehicles through a computer program; basic data entry; checking loads; an understanding of truck sizes preferred; excellent customer service skills and telephone manner; good communication skills; ability to operate a computer or capacity to learn; ability to work in a team environment; ability to multi-task; ability to work on a Saturday pursuant to a roster system; previous experience advantageous; role involves working in an office setting with the ability to alternate between sitting and standing; role does not involve lifting over 4 kg; requirement to climb stairs on a rare occasion; no age-related considerations, and "a candidate with demonstrated capacity to show attention to detail and handle responsibility would be considered for this role", and

(c) employer 3 - operate a computerised weighbridge; record vehicle information; check loads and dockets; answer telephone calls; use of two-way radio; good communication skills required; time management, organisation, precision, and great attention to detail required; intelligence and logical thinking required; ability to work independently as well as in a team; basic computer skills or capacity to learn required; no formal qualifications required; role involves working in a sedentary office setting with a 1-2 kg occasional lifting requirement; no requirement to climb stairs or ladders; no age-related considerations, and requirement to work nine day fortnights with 8.5 hour shifts.

1. The final vocational report relied upon by the respondent (and specifically referred to in its 8 April 2025 work capacity decision) was prepared by Mr Marrwa Elmasri. It is also a labour market analysis report (obtained from direct employer contact) in relation to employment options for the applicant. It assumes the capacity of the applicant to be in accordance with Dr Vijay's certification since 18 March 2025 (see paragraph 44 above).
2. The report does little more than analyse Mr Elmasri's conversations with potential employers - with regard to the roles of a delivery driver, a process/assembly worker, and a weighbridge operator. I again do not consider the analysis provided regarding the role of a delivery driver to be relevant to my determination in these proceedings - see paragraph 62 above.
3. In relation to the employment option of a process/assembly worker, Mr Elmasri obtained the following relevant information regarding the typical work tasks involved, the functional requirements, the educational requirements, the experience and skills required, the work hours, and age considerations, from three employers:

(a) employer 1 - stock counting; picking and packing of orders; machine operation; lifting/carrying/pushing/pulling up to 5 kg; frequent standing for long durations; ability to alternate between sitting and standing; no requirement to use stairs or ladders; five minute breaks every hour able to be accommodated; no formal education requirements; no previous experience required; attention to detail, problem-solving, and time management required; ability to work eight hours per day five days per week, and no age-related considerations;

(b) employer 2 - working on a production line at a fast pace; lifting/carrying/pushing/pulling up to 5 kg; frequent standing for long durations; ability to alternate between sitting and standing; no requirement to use stairs or ladders; five minute breaks every hour able to be accommodated; no formal education requirements; previous process work experience preferred but not essential; attention to detail, flexibility, and ability to work both independently and as part of a team required; ability to work eight hours per day five days per week, and no age-related considerations, and

(c) employer 3 - equipment cleaning; ingredient processing; monitoring production activity; resolving issues which impact production targets; managing packaging and product changeovers; using systems to accurately report on production data and quality checks; lifting/carrying/pushing/pulling up to 5 kg; frequent standing for long durations; ability to alternate between sitting and standing; no requirement to use stairs or ladders; five minute breaks every hour able to be accommodated; no formal education requirements; no previous experience required; communication skills, problem-solving skills, and a proactive mindset required; ability to work eight hours per day five days per week, and no age-related considerations.

1. In relation to the employment option of a weighbridge operator, Mr Elmasri obtained the following relevant information regarding the typical work tasks involved, the functional requirements, the educational requirements, the experience and skills required, the work hours, and age considerations, from three employers:

(a) employer 1 - data entry; answering telephone calls; other office tasks; dealing with mail and emails; scanning documents; sending dockets and reports; dealing with sales enquiries; cleaning of weighbridge; cleaning office; checking of loads; lifting/carrying/pushing/pulling up to 5 kg; ability to alternate between sitting and standing; no requirement to use stairs or ladders; five minute breaks every hour able to be accommodated; no formal education requirements; requirement for experience with cash handling and customer service (confirmed by the employer to be lacking in relation to the applicant); communication skills, resilience, and ability to work both independently and as part of a team required; ability to work eight hours per day five days per week, and no age-related considerations;

(b) employer 2 - operation of weighbridge to weigh vehicles; record and maintain accurate data of all transactions; ensure compliance with safety procedures; provide excellent customer service; assist with general yard duties; lifting/carrying/pushing/pulling up to 5 kg; ability to alternate between sitting and standing; no requirement to use stairs or ladders; five minute breaks every hour able to be accommodated; no formal education requirements; previous experience as a weighbridge operator preferred; communication skills, teamwork skills, attention to detail, and multi-tasking skills required; ability to work eight hours per day five days per week, and no age-related considerations, and

(c) employer 3 - liaising with personnel to schedule deliveries to meet customer needs; weighing and ticketing trucks; ordering, tracking, and picking up parts; assisting with other administrative duties; lifting/carrying/pushing/pulling up to 5 kg; ability to alternate between sitting and standing; no requirement to use stairs or ladders; five minute breaks every hour able to be accommodated; no formal education requirements; no previous experience required; attention to detail, time management skills, communication skills, and "strong administrative skills and computer literacy" required; ability to work eight hours per day five days per week, and no age-related considerations.

1. As directed, the applicant has provided written submissions dated 6 November 2025. They form part of the Commission's record, and I will therefore not summarise them in great detail.
2. The applicant specifically refers me to his statement evidence, as well as Professor Ghabrial's report and the restrictions imposed by Dr Vijay's last certificate of capacity. He submits:

"The unchallenged evidence proves that his leg presents a major barrier to him returning to any kind of work. It is appropriate, in the applicant's submission, to conclude that the limp in combination with the fragile state of his left knee, make it likely that he could suffer further injury if required to even travel to and from work, let alone were he required to stand, with standing being an integral requirement of both proposed jobs...When viewed objectively and against the inherent roles of a weighbridge operator and process worker, the irresistible conclusion is that the applicant cannot tolerate standing for 15 minutes let alone any manual labour. In circumstances where he must avoid steps, stairs, ladders and walking on uneven surfaces, the only conclusion available on the evidence is that he has no current work capacity to work in any suitable duties."

1. The applicant specifically criticises the respondent's evidence in the following respects:

(a) the respondent does not rely upon any evidence from an orthopaedic specialist;

(b) the respondent relies upon Dr Perla's report in circumstances where the applicant never consulted with the doctor, and

(c) the respondent's two labour market analysis reports are not underpinned by either expert orthopaedic evidence or any recent vocational assessment - they rely upon the "stale" vocational assessment in the report from Procare dated 29 November 2023.

1. The applicant submits that the role of a process worker "requires manual handling and long-standing, which the applicant is incapable of from a medical standpoint". He also submits that he is unable to perform the duties required of a weighbridge operator, specifically cash handling, customer service, dealing with emails, scanning and filing documents, cleaning weighbridges, sales enquiries, maintaining data of transactions, general yard duties, and computer literacy skills. He specifically refers to Mr Manca's reports in this regard, especially the testing performed by Mr Manca (see paragraph 49(c) above) and the enquiries made by Mr Manca (as summarised at paragraph 49(e) above). He also refers to Mr Manca's view (see paragraph 49(g) above) regarding the relevance of his age to his work capacity.
2. He is digitally illiterate and incapable of using a computer. His communication is poor and he has no administrative skills. He has difficulties applying attention to detail in unfamiliar roles.
3. The applicant refers to Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), and submits that there is no suitable employment available to him.
4. Finally, the applicant requests awards in these proceedings pursuant to both ss 37 and 38 of the 1987 Act (despite the notation made in my 21 August 2025 direction - see paragraph 7 above) as it seems that he has now received over 130 weeks of weekly benefits compensation, in order to bring his claim in that regard within s 38.

1. As directed, the respondent has also provided written submissions dated 13 November 2025. They form part of the Commission's record, and I will therefore not summarise them in great detail.
2. The respondent commences by submitting that, in accordance with my 21 August 2025 direction, there should be no consideration in these proceedings of any entitlements of the applicant's pursuant to s 38 of the 1987 Act.
3. The respondent draws my attention to the following evidence:

(a) the vocational assessment report of Procare dated 29 November 2023 - which, despite the applicant's restricted medical certification at the time, identified future employment options for him as a process/assembly worker, a delivery driver, and a weighbridge operator;

(b) Mr Elmasri's report dated 26 March 2025 - the report identifies positions for the applicant as a process/assembly worker, as a delivery driver, and as a weighbridge operator - the report "was conducted by reviewing medical certificates [from Dr Vijay], vocational assessment reports, injury management consultant reports [from Dr Perla], and direct employer feedback regarding the availability and requirements of the identified positions" - the report details the physical requirements of the positions, confirms that they are available in the open labour market, and confirms that they are suitable for the applicant based on his current capacity, skills and experience;

(c) Dr Perla's report date 28 February 2025 - which refers to both himself and

Dr Vijay agreeing that the roles of a process/assembly worker and a weighbridge operator would be suitable for the applicant, and

(d) the most recent certificate of capacity issued by Dr Vijay - referring to the applicant's restrictions as detailed at paragraph 44 above.

1. The respondent as a result submits that the physical demands of a process/assembly worker, a delivery driver, and a weighbridge operator align with the certified restrictions of the applicant's. It also submits that his "employment history as a labourer has equipped him with transferable skills relevant to these roles, including teamwork, independent work, communication skills, and experience with manual handling and basic technology". This has been confirmed by the conversations that Mr Elmasri had with prospective employers (see paragraphs 66-67 above).
2. The respondent then also refers to Dewar and submits in conclusion:

"The respondent maintains that the applicant is considered suitable for the role of Weighbridge Operator, as outlined in the labour market analysis. Feedback from Employers, confirmed the applicant could be accommodated with his restrictions and that he possessed the necessary skills such as, teamwork, communication, resilience, and professionalism, but lacked some specific administrative and computer literacy skills for certain employers...As such, the employment asserted by the insurer to be suitable employment meets the requirement of being 'real work' which could be performed for reward within the Australian industrial regime as discussed in the legal authorities including Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55."

1. These submissions dated 17 November 2025 also form part of the Commission's record, and I will therefore not summarise them in great detail. They in reality do little more than confirm that the applicant seeks awards pursuant to both s 37 of the 1987 Act and s 38 of the 1987 Act, in the proceedings.

What is the extent (if any) of the applicant's current work capacity as a result of his left knee injury on 15 May 2023

1. Section 37 of the 1987 Act provides as follows:

"(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. In order to determine the applicant's entitlements pursuant to s 37 of the 1987 Act therefore, it is necessary to determine whether the applicant has current work capacity, and if so, what his "current weekly earnings" would be regarding such capacity.
2. Clause 9(1) of schedule 3 to the 1987 Act provides:

"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."

1. Section 32A of the 1987 Act provides the definition of suitable employment 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."

1. There is no current evidence that the applicant is fit for his pre-injury employment, nor is that submitted by the respondent. It is clear that the applicant wanted to recover in order to be fit to resume his labouring employment (see his statement evidence at paragraph 30(f) above, as well as his discussions with Drs Berton and Workman referred to at paragraphs 46(a) and 46(c) above). However, considering the nature of his pre-injury employment (see the description of that employment referred to in his statement evidence at paragraphs 24-25 above), and his current employment restrictions certified by Dr Vijay (see paragraph 44 above) and largely confirmed by Dr Ghabrial (see paragraph 41(c) above) and Dr Perla (see paragraphs 57-58 above), I do not consider that there is any possibility that the applicant would be fit for his pre-injury employment as a labourer. He has a lifting restriction of 5 kg, is only able to stand for 15 minutes, and is to avoid ladders, stairs, and uneven surfaces.
2. It needs to still be determined however whether the applicant is capable of suitable employment within the meaning of s 32A of the 1987 Act, especially having regard to

Dr Vijay's certificates of capacity (up to 7 August 2025) suggesting the applicant to have a capacity to work eight hours per day five days per week, but with significant restrictions, particularly in relation to lifting/carrying/pushing/pulling, and standing. 3. To determine this, I will consider Dewar in order to ascertain if there is evidence before me of a "real job" that the applicant "is currently suited" for in the labour market. 4. In Dewar, Roche DP discussed s 32A (at [58-60]):

"However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that 'suitable employment' must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker's 'inability arising from an injury'. Suitable employment means 'employment in work for which the worker is currently suited' (emphasis added [in original]).

The word 'employment' is not defined in the legislation. Its common meaning is 'the state of being employed'. However, 'worker' is defined. It means, subject to specified exclusions, 'a person who has entered into or works under a contract of service or a training contract with an employer' (s 4 of the 1998 Act). In context, the phrase 'employment in work', in the definition of suitable employment, 'in relation to a worker', must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.

Therefore, the determination of whether a worker is 'able to return to work in suitable employment' is not a totally theoretical or academic exercise and Mason P's reference to the 'eye of the needle' test may still be relevant in many cases. To use his Honour's example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer's obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment."

"The determination of what is suitable employment is a practical exercise that is conducted 'having regard to':

• (a) the nature of the incapacity and the details provided in medical information;
• (b) the worker's age, education, skills and work experience;
• (c) any return to work plan, and
• (d) any occupational rehabilitation services that have been provided to the worker.

(a) whether the work or employment is available, that is, obtainable;

(b) whether the work or the employment is of a type or nature that is generally available in the employment market;

(c) the nature of the worker's pre-injury employment, and

Thus, the task requires the identification of whether there are any 'real jobs' (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are 'available' (to the worker) or are 'of a type or nature that is generally available in the employment market'."

1. I have come to the conclusion that there are currently no "real jobs" that the applicant is suited for.
2. In relation to the position of a delivery driver, I refer to my comments at paragraphs 62 and 65 above. I do not find this position to be suitable for the applicant, and I rely upon the following evidence:

(a) the applicant's statement evidence (see paragraph 31 above) - specifically regarding his difficulties in getting into and out of a vehicle regularly, his interpersonal and time management skills, his money handling skills, his computer skills, and his phone skills;

(b) the applicant's lifting/carrying/pushing/pulling restrictions certified by Dr Vijay (see paragraph 44 above) - which would be incongruous with even a light delivery driver role;

(c) Dr Perla's opinion - see paragraph 58 above;

(d) Professor Ghabrial's opinion - see paragraph 41(c) above, and

(e) Dr Perla's recording (see paragraph 57 above) that Dr Vijay "did not agree with the option of delivery driver" - although I do note that there is not a report from Dr Vijay stating this, which is in evidence before me.

1. In relation to the position of a process/assembly worker, I also find the position to be unsuitable for the applicant having regard to the restrictions placed upon him as a result of his left knee injury. Dr Vijay certifies him as currently able to stand for up to 15 minutes, having previously certified him as able to stand for up to 20 minutes (see paragraphs 43-44 above). Dr Perla (even though he did not consult with the applicant) consulted with

Dr Vijay and seemed to accept the employment restrictions imposed by that doctor (see paragraphs 57-58 above). However, it is important to note that the applicant's standing restriction in this regard was recorded by Dr Perla as "as tolerated" rather than as for up to 15 or 20 minutes. 2. It is speculative to accept that Dr Perla would have approved the position of a process/assembly worker for the applicant, having regard to his incorrect recording of the restrictions imposed upon the applicant by Dr Vijay. Dr Perla says that Dr Vijay told him that the doctor considered the position of a process/assembly worker to be suitable for the applicant, but there is no independent verification from Dr Vijay in this regard. I find it difficult to place much weight upon a statement apparently provided by Dr Vijay to

Dr Perla in circumstances where we know very little about the discussions between them regarding the physical aspects of a process/assembly worker position. 3. Dr Bennett (who admittedly consulted with the applicant on 26 February 2024, when his certified restrictions by Dr Vijay were greater, including a standing restriction of 5 minutes) did not accept that the role of a process/assembly worker was suitable for him (see paragraphs 54-55 above). Importantly though, the doctor made this assessment even after also being informed (and accepting - see paragraphs 54-55 above) by the applicant's then physiotherapist, of a significantly lesser standing restriction for him of 45 minutes. 4. Professor Ghabriel (see paragraph 41(c) above) says the applicant is not fit for "standing for lengthy periods". The applicant himself (see paragraph 35(a) above) says that he is unable to stand for prolonged periods of time. 5. The respondent relies upon Mr Elmasri's report, and especially his conversations with three potential employers of the applicant in a position of a process/assembly worker (see paragraph 66 above). I note however that each employer's advice to Mr Elmasri seems to be inconsistent in that they all suggest that the position involves both "frequent standing for long durations" and "ability to alternate between sitting and standing". I also note the criticisms made by Mr Manca (see particularly paragraph 49(d) above) regarding

Mr Elmasri's report, after Mr Manca himself consulted with two of the three employers identified by Mr Elmasri. Specifically, Mr Manca resolved the inconsistency in Mr Elmasri's report as the two employers he consulted both advised him that there was constant standing involved in the position. Mr Manca also ascertained from one or both of the employers that the work in the position was fast paced, that breaks were not always possible, and that there could be some climbing of ladders or steps involved in the position. 6. I accept the applicant's current standing restriction of 15 minutes, as certified by Dr Vijay. It is consistent with the most recent orthopaedic medical evidence provided by Professor Ghabrial, and (while not specifically recording such a restriction) Dr Perla otherwise in his report agrees with Dr Vijay. It is also consistent with the applicant's statement evidence and Mr Manca's recording of the applicant's inability to meet static standing demands (see paragraph 48 above). 7. Having regard to the inconsistent evidence presented by Mr Elmasri as well as

Mr Manca's enquiries, I find that the applicant would be required in the position of a process/assembly worker to stand for long periods, certainly in excess of the standing restriction imposed by Dr Vijay. 8. In relation to the position of a weighbridge operator, it would seem that such a position would comply with the certified restrictions placed upon the applicant's employability by

Dr Vijay - which were agreed to by Dr Perla. The applicant submits however that the position would not be suitable for him having regard to his age, education, skills and work experience. It would therefore not be suitable employment for him in accordance with s 32A of the 1987 Act and Dewar. 9. To determine this issue, it is therefore necessary to consider the tasks involved in the position and the requirements for it, in order to ascertain if the position would be a real job for which the applicant was suited, having regard to his age, education, skills and work experience. This is largely a matter for vocational rather than medical evidence. 10. In all, there is evidence before me of six employers of weighbridge operators which have been contacted, three referred to in Procare's 4 March 2024 report (see paragraph 63 above), and three referred to in Mr Elmasri's report (see paragraph 67 above). While each employer refers to slightly different tasks and requirements, my analysis reveals that the following features are common:

(a) all employers emphasised data entry and other computer operation is involved - one saying computer literacy was preferred, and another saying computer literacy was required;

(b) all employers emphasised the need for strong communication and customer service skills;

(c) cash handling is generally involved;

(d) a strong emphasis on attention to detail is common - as well as time management and organisation;

(e) a strong emphasis on multi-skilling is common;

(f) a strong emphasis on teamwork as well as the ability to work independently is common, and

(g) all employers emphasised that there were no age-related restrictions.

1. Both Procare and Mr Elmasri consider the applicant to be capable of fulfilling these requirements. However, neither of their reports was prepared following a consultation with the applicant, and in my opinion, insufficient reasoning is provided in the reports as to how the applicant's age, education, skills, and work experience render him capable of fulfilling the requirements. In terms of the applicant's vocational capacity, the reports in this regard seem to rely upon the findings in Procare's initial vocational assessment report dated

29 November 2023 (see paragraphs 60-61 above). This report was however prepared at a time when the applicant's physical capacity for work was only for 20 hours per week with no lifting/carrying/pushing/pulling. Relevantly, the report also:

(a) recommended job seeking education for the applicant - which has not occurred according to Mr Manca;

(b) noted the applicant's computer illiteracy, inability to use email, and limited ability to use a mobile phone;

(c) considered the applicant to have good communication skills, the ability to work independently or in a team environment, and time management skills, and

(d) did not specifically assess the applicant regarding customer service skills, cash handling, attention to detail, and multi-skilling.

In my opinion, the above summarised aspects of the report do not provide support in general in relation to the applicant's ability to fulfil the requirements of a weighbridge operator position, as detailed at paragraph 100 above.

1. In those circumstances, the foundation for the opinions in Procare's 4 March 2024 report and in Mr Elmasri's report, is lacking. Both reports in my opinion do not properly consider the applicant's education, skills and work experience, particularly his highly limited computer skills and his job seeking issues.
2. In contrast, Mr Manca has consulted with the applicant twice and performed testing upon him. He is in a much stronger position to assess the applicant's vocational capacity, and he specifically concentrates upon (see paragraphs 49(b)-49(c) above) the applicant's job seeking ability limitations, his challenges in learning new tasks, his reduced ability to problem solve, his low attention to detail, and his very low capacity for logical reasoning (98%-99% lower than others). Using this information, Mr Manca provides logical reasoning (see particularly paragraphs 49(e) and 49(i) above) as to why the position of a weighbridge operator would not be suitable for the applicant having regard to his education, skills and work experience. The requirements to record and obtain accurate data, provide excellent customer service, have attention to detail, multi-task, operate a computer, and learn new skills are "unachievable" for the applicant. His labouring skills are not transferable in this regard.
3. Mr Manca's evidence and opinions are entirely consistent with the uncontested statement evidence of the applicant, in that he refers to:

(a) his skills being limited to manual labour work - see paragraphs 25 and 31(e) above;

(b) his computer illiteracy - he does not even have an email account - see paragraphs 25, 31(b) 34(c) above;

(c) his lack of cash handling skills - see paragraphs 25 and 31(b) above;

(d) his past inability to obtain a forklift driving licence - see paragraph 30(h) above;

(e) his lack of interpersonal and time management skills - see paragraph 31(d) above, and

(f) his struggles with reading and writing skills - see paragraph 34(c) above.

(a) the three employers referred to in Procare's 4 March 2024 report all required their weighbridge operators to work other than eight hours per day five days per week (one requiring eight day fortnights with 9.5 hour shifts, one requiring nine day fortnights with 8.5 hour shifts, and one requiring working on Saturdays) - in this regard, the applicant's current certificates of capacity have not considered his ability to work such shifts;

(b) the first employer referred to in Mr Elmasri's report specifically advised that the applicant did not possess sufficient cash handling and customer service skills, and

(c) the third employer referred to in Mr Elmasri's report specifically advised that strong administrative skills and computer literacy were required - again skills not possessed by the applicant.

1. Having considered the vocational and medical evidence available to me, I find that the position of a weighbridge operator is not suitable employment for the applicant pursuant to s 32A of the 1987 Act.
2. Having found the positions of a delivery driver, a process/assembly worker, and a weighbridge operator to be unsuitable positions for the applicant, I agree with Professor Ghabriel (see paragraph 41(c) above) that the applicant is not fit to return to the workforce in any capacity. This is also in effect the opinion of Mr Manca (see specifically paragraph 48 above), especially considering the applicant's outstanding job seeking and vocational rehabilitation needs.
3. The restrictions imposed upon his employment by Dr Vijay (which I have accepted) are significant. A job has to be available that can accommodate his major restrictions with lifting/carrying/pushing/pulling as well as his 15 minute standing restriction. The job also has to be suitable having regard to his highly limited education, skills, and work experience, as assessed by Mr Manca following his consultations with and testing of the applicant. I cannot see how such a job would be "real" in the open labour market.
4. I am able in this regard to use common knowledge or experience. As Deputy President Snell observed in ACW v ACX [2020] NSWPICPD 19, applying Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720 (at [109]):

"A fact finder is entitled to make commonsense findings, provided these are 'within the realm of common knowledge or experience'".

1. Certainly the respondent has not provided any weighty evidence to suggest suitable employment options for the applicant, and:

(a) it does not rely upon any specialist orthopaedic or other specialist medical evidence;

(b) it concentrates only on the positions of a delivery driver, a process/assembly worker, and a weighbridge operator - which I have not found to be suitable employment options for the applicant;

(c) it relies upon a report from an Injury Management Consultant (Dr Perla) who did not consult with the applicant, and whose report does little more than refer to a conversation between him and the applicant's treating general practitioner, and

(d) it relies upon vocational evidence - limited to a vocational assessment of the applicant during a historical consultation on 29 November 2023, supplemented by subsequent labour market analyses, which were conducted without a consultation with the applicant and without, in my opinion, a proper basis for their vocational findings.

1. In all the circumstances, I find that the applicant is currently not capable of suitable employment within the meaning of s 32A of the 1987 Act. He has no current work capacity as a result. There is no evidence before me of a "real job" that the applicant is currently suited for in the labour market.
2. This finding allows me to make an award in favour of the applicant pursuant to s 37 of the 1987 Act. It seems however that the applicant has now received over 130 weeks of weekly benefits compensation, so that his continuing claim in this regard needs to be assessed pursuant to s 38 of the 1987 Act. I have not been advised as to the precise date when he had received 130 weeks of weekly benefits compensation.
3. The award that I make in his favour pursuant to s 37 of the 1987 Act will therefore necessarily be imprecise.
4. Further, considering the notation which I made in my 21 August 2025 direction (see paragraph 7 above), as well as the respondent's submission at paragraph 76 above, I do not feel that I currently should make any award in favour of the applicant pursuant to s 38 of the 1987 Act without affording the opportunity to both parties to further submit in this regard, now that I have made my finding as to the applicant's current lack of work capacity.
5. A further preliminary conference will be ordered to discuss these issues.

1. I find that the applicant has no current work capacity as a result of his left knee injury on 15 May 2023.
2. The respondent is ordered to pay the applicant $652 per week pursuant to s 37 of the 1987 Act from 16 July 2025 to a date to be confirmed in relation to when his entitlements pursuant to s 37 of the 1987 Act finished.
3. No order is yet made in favour of the applicant pursuant to s 38 of the 1987 Act.
4. Credit is given to the respondent for all payments of weekly benefits compensation made to the applicant pursuant to s 37 of the 1987 Act after 16 July 2025.
5. These proceedings are listed for a further preliminary conference, by MS Teams audiovisual link, on 19 February 2026 at 10.30am.