State of New South Wales (South Western Sydney Local Health District)

WORKERS COMPENSATION - Workers Compensation Act 1987; section 38; whether no current work capacity or some current work capacity; whether current work capacity likely to continue indefinitely; whether applicant is eligible to receive weekly compensation pursuant to section 38; Holmes v Central Coast Council cited and applied; Held - the name of the respondent is amended to "State of New South Wales (South Western Sydney Local Health District)"; that the applicant had no current work capacity prior to and as at 8 May 2023 and that she has continued to have no current work capacity to date and is likely to continue indefinitely to have no current work capacity; the respondent is to pay the applicant pursuant to section 38; the respondent is to pay the applicant's medical and treatment expenses pursuant to section 60 in respect to injury to the left knee, left ankle, right knee, consequential psychological condition, and chronic pain syndrome.

1. The name of the respondent is amended to "State of New South Wales (South Western Sydney Local Health District)".
2. That the applicant had no current work capacity prior to and as at 8 May 2023 and that she has continued to have no current work capacity to date and is likely to continue indefinitely to have no current work capacity.
3. The respondent is to pay the applicant pursuant to s 38 of the Workers Compensation Act 1987:

(a) $1,096 per week from 27 September 2023 to 30 September 2023;

(b) $1,120 per week from 1 October 2023 to 31 March 2024;

(c) $1,144 per week from 1 April 2024 to 30 September 2024, and

(d) $1,168 per week from 1 October 2024 to date and continuing subject to indexation.

1. The respondent is to pay the applicant's medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 in respect to injury to the left knee, left ankle, right knee, consequential psychological condition and chronic pain syndrome.

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

1. Roshni Lata Sen, the applicant, has brought proceedings in the Personal Injury Commission (Commission) against "Campbelltown Hospital", the respondent. The respondent has submitted that it is correctly identified as "State of New South Wales (South Western Sydney Local Health District)". The name of the respondent is amended to "State of New South Wales (South Western Sydney Local Health District)".
2. The applicant alleges that whilst in the course of her employment with the respondent on

4 September 2020 she was assisting a 92-year-old patient to use the bathroom. The applicant alleges that as they were walking to the bathroom the patient, who was using a walking frame, began to walk backwards with the walking frame. The applicant alleges that she turned towards the patient and as she walked towards the patient her left leg got caught in the walking frame causing her to trip and fall forwards landing on both her knees and then on the left side of her body. The applicant alleges that the patient subsequently lost her balance and fell on top of her. 3. The applicant alleges that as a result of the incident she sustained injury to her left knee, left ankle, right knee, chronic pain syndrome and scarring as well as a consequential psychological condition. 4. The applicant seeks ongoing weekly compensation commencing from 27 September 2023 pursuant to s 38 of the Workers Compensation Act 1987 (1987 Act). The applicant also claims future treatment expenses in respect to the alleged injuries to the left knee, left ankle, right knee, chronic pain syndrome, scarring and consequential psychological condition pursuant to s 60 of the 1987 Act for ongoing consultations with a general practitioner (GP), specialist consultations as well as psychologist/psychiatrist consultations. 5. The parties agreed the applicant's pre-injury average weekly earnings (PIAWE) indexed as at 27 September at $1,370. 6. The respondent concedes a present entitlement to s 60 medical expenses in respect to the secondary psychological condition excluding any chronic pain syndrome. 7. It is not disputed that the applicant sustained injury to her right knee, left knee, left ankle as well as a consequential psychological condition. 8. Under cover of a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) dated 15 June 2023 the respondent made a work capacity decision under which payments of weekly compensation ceased on

26 September 2023. The decision to cease payments of weekly compensation was based on the applicant having a capacity to work 12 hours per week (four hours per day three days per week) as certified by the applicant's nominated treating doctor (NTD) Dr Lim in a certificate of capacity dated 24 May 2023. The respondent disputed a subsequent downgrade in the applicant's capacity for the period 6 June 2023 to 4 July 2023 in a certificate of capacity dated 15 June 2023. The respondent determined that the vocational option of call centre officer was suitable employment for the applicant. 9. In making the decision the respondent also relied on a vocational assessment report completed by Balance Rehab dated 11 April 2023 which identified call centre officer as a suitable occupation for the applicant. The applicant's NTD approved the occupation as suitable. The applicant was assessed to have a capacity to $32.16 per hour as a call centre officer earning $385.92 for a 12 hour week. 10. The respondent terminated the applicant's payments of weekly compensation on the grounds that the applicant did not satisfy the requirements of s 38 of the 1987 Act to be eligible to receive weekly compensation pursuant to that section. In particular that the applicant had not returned to working 15 hours or more per week and the worker had not been assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings. 11. Under cover of a second notice issued pursuant to s 78 of the 1998 Act dated 15 June 2023 the respondent disputed a downgrade in the applicant's capacity from 6 June 2023 to

4 July 2023. Dr Sibanda in a certificate of capacity certified the applicant with no current work capacity from 6 June 2023 to 4 July 2023. A downgraded from the previous certificate of capacity in which Dr Sibanda had certified the applicant fit for 12 hours of work per week, (four hours x three days per week) from 24 May 2023 to 05 June 2023. The reason given for the dispute was a purported lack of information to clarify the reasons for the downgrade in capacity for work. 12. Under cover of correspondence dated 21 August 2023 the applicant was advised that a decision had been made that she did not satisfy the requirements to continue to receive payments of weekly compensation after 130 weeks and that payments of weekly compensation would cease on 26 September 2023. The basis for the decision to cease payments of weekly compensation was that it had been decided that the applicant did not meet the requirements under s 38 of the 1987 Act. 13. Under cover of correspondence dated 17 April 2024 the respondent confirmed its decision to cease payments of weekly compensation as well as maintaining its dispute in respect to the downgrading of the applicant's work capacity for the period 6 June 2023 to 4 July 2023. 14. Under cover a notice pursuant to s 78 dated 23 September 2024 the respondent maintained its dispute of 15 June 2023 in respect to weekly compensation as well as disputing that the applicant was entitled to medical and treatment expenses pursuant to s 60 of the 1987 Act for accepted injuries to the left knee, left ankle and right knee. 15. Under cover of correspondence dated 17 October 2024 the respondent again maintained that the applicant was not entitled to weekly compensation from 26 September 2023 pursuant to s 38 of the 1987 Act.

1. At the commencement of the arbitration hearing an application was made by the applicant to amend the Application to Resolve a Dispute (ARD) to include injury in the form of a "chronic pain syndrome".
2. In the applicant's submission there appears to be no disagreement among the treating doctors as to the condition. That Dr Powell, orthopaedic surgeon, who was retained by the respondent to provide expert forensic report's, accepts that the applicant has a chronic pain syndrome. That the rehabilitation report refers to chronic pain (without reference to a syndrome), and it is from that rehabilitation report which the dispute pursuant to s 38 of the 1987 Act initially springs.
3. The respondent opposed the application. The respondent submitted that it would be prejudiced by the proposed amendment. In the respondent's submission whilst Dr Powell does refer to a chronic pain syndrome the respondent had not prepared a case on that basis as that condition had not been claimed and Dr Powell does not set out the causation of that condition. In the respondent's submission Dr Powell does not attribute the condition to any of the body parts or systems that have been pleaded and the evidence does not engage with the test in s 38 as to the prognosis.
4. In the respondent's submission it is true at a superficial level that one can say it is in the material, but it is only in the material in that very bare way and not in a way that is legally relevant to the dispute and the respondent has not been on notice that the claim would be prosecuted in that way and has therefore not prepared a defence to it. In the respondent's submission if the chronic pain is relied on as an injury as opposed to a mere symptom, then the Commissions jurisdiction is affected.
5. In the applicant's submission I have a discretionary power to admit the amendment. In the applicant's submission Dr Young considers the applicant's chronic pain on the back of

Dr Powell's opinion both of which are reports which the respondent qualified. 6. In the applicant's submission the way in which s 38 of the 1987 Act functions puts the respondent in the position of the moving party, that this is the case which the respondent presents, there is capacity, we deny total incapacity on these grounds and here is our evidence in support of that denial. 7. In the applicant's submission it is germane and fundamental to the question. To say that it is relevant to jurisdiction or not part of the case that they were meeting is to say in effect, that the respondent has not read all of its own evidence and that they hadn't considered that evidence. 8. In the applicant's submission there is no prejudice to the respondent however the prejudice to the applicant is clear. The applicant should be able to say how the chronic pain has impacted on capacity. The respondent was aware of, and on notice of the applicant's chronic pain at the time of the rehabilitation report which is effectively the initiating document for these proceedings. Whilst the applicant concedes that Dr Powell doesn't consider causation in a strict sense, he does say in an earlier report that there are features of developing pain and then in his next report in time says that she now has a chronic pain syndrome. In the applicant's submission it is therefore reasonable to infer that Dr Powell accepts that the pain has developed into a chronic pain syndrome. In the applicant's submission Dr Young seems to accept that a chronic pain syndrome has developed out of the original orthopaedic injuries. Dr Herald the treating orthopaedic surgeon has also identified a chronic pain syndrome. There is in the applicant's submission comity across several different specialties that there is a chronic pain syndrome. 9. The respondent clarified that it was not by any means suggesting late notice of a contention or possibility of chronic pain or a chronic pain syndrome. The respondent submits that what it is not on notice of is the way in which that is to be deployed and that has real consequences potentially downstream if it is found that, a chronic pain syndrome is an injury as opposed to just a symptom, that might have an effect on whole person impairment and things of that nature. It is not in the respondent's submission a trivial add on and it may have major consequences, and the respondent is not here to meet that. 10. In the respondent's submissions the use of the word syndrome is important because by going from just pain to a pain syndrome it is taken into the arena of injury and that is the jurisdictional issue. The respondent referred to the sections commencing at s 288 of the 1998 Act that refer to what can be determined by the Commission. In the respondent's submission there is no discretion in respect to jurisdiction. 11. In the applicant's submission a chronic pain syndrome need not be treated as an injury. 12. In the applicant's submission the "chronic pain syndrome" has no implications for permanent impairment. It is not diagnosable or assessable under the guides, as the case in respect to chronic regional pain syndrome. In the applicant's submission a chronic pain syndrome is a psychiatric problem. It is a consequence of chronic pain. Dr Young is asked by the respondent to comment on it and does. It would in the applicant's submission be unfair if the applicant could not address on the chronic pain syndrome. 13. The amendment was allowed at the time of the arbitration conference at which time I indicated that I would give my reasons for granting the applicant's application as part of this decision which I now do. 14. I do not accept that I lack the jurisdiction to make the amendment. 15. Section 288 of the 1998 Act provides that a party to a dispute about a claim may refer the dispute to the Commission for determination. Section 289 of the 1998 Act provides that a dispute cannot be referred for determination by the Commission unless the person on whom the claim is made disputes liability for the claim or fails to determine the claim as and when required by the 1998 Act. Section 289A of the 1998 Act provides that a dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed. 16. The dispute in this matter was initially raised by the respondent in its work capacity decision of 15 June 2023 and its notice pursuant to s 78 of the 1998 Act of the same date. Under cover of correspondence dated 21 August 2023 the applicant was advised that a decision had been made that she did not satisfy the requirements to continue to receive payments of weekly compensation after 130 weeks and that payments of weekly compensation would cease on 26 September 2023. The basis for the decision to cease payments of weekly compensation was that it had been decided that the applicant did not meet the requirements under s 38 of the 1987 Act. On 17 April 2024 the respondent confirmed its decision to cease payments of weekly compensation as well as maintaining its dispute in respect to the downgrading of the applicant's work capacity for the period 6 June 2023 to 4 July 2023. In a further notice pursuant to s 78 dated 23 September 2024 the respondent maintained its dispute of 15 June 2023 in respect to weekly compensation as well as disputing that the applicant was entitled to medical and treatment expenses pursuant to s 60 of the 1987 Act for accepted injuries to the left knee, left ankle and right knee. The respondent on

17 October 2024 once again maintained that the applicant was not entitled to weekly compensation from 26 September 2023 pursuant to s 38 of the 1987 Act. 17. The respondent's notices pursuant to s 78 of the 1998 Act dated 23 September 2024 and its notice under s 287A of the 1998 Act dated 17 October 2024 both referred to and quoted from the reports of Dr Powell dated 24 May 2024 and 24 August 2024 and of particular relevance both notices recorded that the diagnosis of Dr Powell included chronic pain syndrome and recorded the following quote from Dr Powell:

"She also has some mental health issues and features of a chronic pain syndrome which are impacting negatively on her overall presentation."

1. Dr Powell in a further report provided to the respondent dated 23 January 2025 stated:

"Based on my assessment of Ms Sen it is clearly apparent she is suffering from a chronic pain syndrome and on that basis referral to a Pain Specialist would be considered reasonably necessary."

1. In addition to Dr Powell referring to a diagnosis of chronic pain syndrome in his reports of

24 May 2024, 24 August 2024 and 23 January 2025 the respondent also obtained forensic reports from Dr Young, psychiatrist, who in his report dated 20 January 2025 stated:

"The documents provided are consistent with those previously reviewed and with the clinical history and examination. They support the diagnosis of ongoing pain due to exacerbation of underlying arthritic processes as a result of the work injury with this having further secondary psychiatric effects and the development of a chronic pain syndrome."

1. The respondent was therefore not only aware of the existence of a chronic pain syndrome which it directly refers to in its notices confirming the denial of liability but it also obtained a report from the Dr Young which directly deals with the causal connection between the syndrome and the work injury. Dr Powell in his report of 23 January 2025 also appears to accept the causal connection to the work injury when providing an opinion that on the basis of the chronic pain syndrome a referral to a pain specialist would be considered "reasonably necessary" which appears to be a reference to s 60 of the 1987 Act.
2. The facts in this matter are not one where the applicant has made a claim which the respondent has then disputed and where the body systems to which injury has allegedly been sustained have not been clearly identified. In this matter the respondent has issued notices terminating weekly benefits compensation and medical expenses after liability had been accepted for a number of years. The respondent has been aware of the diagnosis of a chronic pain syndrome as its medical experts have referred to such a diagnosis and is not taken by surprise. It is also not the case that the respondent has not prepared its case to meet such a diagnosis with the respondent having obtained an opinion from Dr Young as to the causal connection. I am further not of the view that this represents a new injury as the condition arises out of the body parts/systems to which accepted injury was sustained either in the form of the physical knee and ankle injuries and/or the consequential psychological condition. It rather forms part of those accepted injuries rather than being a separate injury.
3. I therefore do not accept the respondent's submission that it would be prejudiced by the amendment. I do accept that the applicant would however be prejudiced if it could not rely on the chronic pain syndrome as the applicant's complaints of pain and the impact of that pain on her function is relevant to her work capacity.
4. The parties agree that the following issues remain in dispute:

(a) incapacity;

(b) whether the applicant satisfies the preconditions to be eligible to receive weekly compensation pursuant to s 38 of the 1987 Act, and

(c) whether treatment is reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act (except for the consequential psychological injury).

1. The respondent concedes a present entitlement to s 60 medical expenses in respect to the secondary psychological condition excluding any chronic pain syndrome.
2. The parties agreed the applicant's pre-injury average weekly earnings (PIAWE) indexed as at 27 September 2023 at $1,370.
3. It is not disputed by the respondent that the applicant sustained injury to her left knee, left ankle, right knee and scarring and that she has sustained a consequential psychological condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was listed for conciliation conference/arbitration hearing before me on

31 January 2025. Mr James McEnaney, counsel, instructed by One Law Group appeared for the applicant, who was present. Mr Lachlan Robison, counsel, instructed by HWL Ebsworth Lawyers appeared for the respondent. The proceedings were conducted in-person. 2. The parties were unable to reach an agreed settlement of the matter. Due to the time available being insufficient, after the conclusion of the conciliation phase and the attending to of interlocutory and procedural, for oral submissions the parties have provided written submissions. 3. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. The respondent objected to the Application to Lodge Additional Documents lodged on behalf of the applicant dated 28 January 2025. The report of Dr Young dated 23 January 2025 is already in evidence and therefore its admission was not pressed. The documents which the applicant sought to be admitted into evidence were a further statement from the applicant as well as forensic medical report obtained by the applicant from Dr Kelvin Chong dated

27 September 2024. 2. The applicant submitted that a short supplementary statement of the applicant dated

23 January 2025 which addresses the difficulties which she has had with respect to some of her symptoms and her personal views as to why she might not be suitable for various roles which have been identified. In the applicant's submission the statement does not cause any prejudice to the respondent and raises nothing that the respondent cannot deal with noting that it is the respondent's case that the applicant has capacity. 3. In the applicant's submission the report of Dr Kelvin Chong dated 27 September 2024 is from the period of Dr Powell's assessment and at the very least provides a different view of the way in which the applicant presented to an assessing doctor. There are certain body parts referred to within it that were withdrawn at the preliminary conference and the respondent would not submit on that evidence in respect to any of those body parts and the report is only relevant in so far as it pertains to the body parts that are in evidence. 4. The applicant submitted in respect to regulation 44 of the Personal Injury Commission Regulations 2020 that if the report of Dr Chong was admitted into evidence the applicant would rely on that report instead of the report of Dr Diaz. 5. The respondent submitted in respect to the applicant's statement that nearly everything in the statement could have been dealt with in the original statement which would have given the respondent more of an opportunity to brief that to its experts such as her tolerances in respect to standing, sitting and walking. In the respondent's submission the balance of the document is in the nature of a submission and therefore won't be of assistance. 6. In respect to the report of Dr Chong the respondent submits that there was a preliminary conference and there is nothing to suggest that the applicant gave notice of any intention to rely on further medical evidence. Dr Chong takes into account body parts that are not part of the claim pleaded as amended and therefore it is difficult to see how the Commission could be assisted by an opinion about capacity pertaining to non litigated body parts or systems. The report is dated 27 September 2024 and was only served on the respondent on

20 January 2025. It would appear that it was in existence when the preliminary conference occurred. There was no way for the respondent to see the report coming and the respondent has not had the opportunity to obtain reply evidence and therefore is prejudicial. 7. In the respondent's submission there would be very little prejudice to the applicant in disallowing the application as the applicant can rely on the report of Dr Diaz, a doctor of the same speciality. 8. In the respondent's submission one of the aspects that is emphasized in the history taken by Dr Chang is the nature of the work which the applicant has done. In the respondent's submission the respondent would be well served by having an occupation physician comment on whether those skills and work history are transferable to the job roles which the respondent has identified as being viable for s 38 purposes because one of the submissions which the respondent will make will be that although the applicant complains of a lack of experience in respect to the kinds of jobs identified being an assistant in nursing would require a fairly high level of communication skills which would be transferrable to working in a call centre for example. The respondent can't develop that in response to this evidence due to its lateness. 9. The applicant advised that the report was received on the day of the preliminary conference at 11.13am. The applicant concedes that it ought to have been raised at the preliminary conference however Dr Powell's report was also noted raised at that conference. 10. At the time of the arbitration hearing, I admitted both the report of Dr Chong dated

27 September 2024 as well as the further statement of the applicant into evidence. 11. In considering whether to admit late documents into evidence consideration needs to be given to:

(a) whether it is in the interests of justice for the document(s) to be admitted into evidence;

(b) whether the document(s) facilitates the just, quick and cost effective resolution of the real issues in the proceedings;

(c) the requirements of the workers compensation legislation and the Personal Injury Commission Rule 2021;

(d) the submissions of the parties;

(e) any prejudice that would result from the granting or refusing to admit the document(s);

(f) the effect, if any on the timely resolution of the dispute;

(g) whether there is an acceptable reason for the delay;

(h) the nature of the proceedings; as well as

(i) general consideration of justice and fairness.

1. The further statement of the applicant is dated 23 January 2025 and therefore post dates the filing of the Application to Resolve a Dispute and was lodged as a late document in timely fashion after it was created. Whilst I accept the respondent's submission that some of the evidence given in the statement could have been included in the applicant's original statement made on 6 November 2024 none of the evidence in my view will take the respondent by surprise or cause the respondent any prejudice.
2. The applicant did in her initial statement list her injuries and disabilities and the medical reports and vocational assessments which are in evidence contain repeated reports from the applicant as to her functional restrictions. The applicant's statement does however appear to provide an update in respect to the applicant's functional condition as it stood at the time of making the statement.
3. Whilst the applicant also provides her opinion as to her suitability for particular occupations those occupation have also been considered in vocational assessment reports as well as the subject of expert medical evidence. It is in my opinion in the interests of justice that the applicant be heard as to her opinion as to her suitability for the identified employment options. There is a question however as to the weight to be given to such evidence the applicant not being an expert in vocational assessments or a medical expert. In my view the applicant's evidence is relevant going to the issue of work capacity and the admission of the statement will not delay the proceedings.
4. In respect to the medical report of Dr Chong. The report postdates the filing of the Application to Resolve a Dispute and whilst dated 27 September 2024 it did not come into the possession of the respondent until 10 December 2024. I understand that the report was served prior to the application being lodged with the Commission to have it admitted as a late document. Whilst the report does discuss conditions and symptoms affecting body parts other than the knees and ankles those body parts are not relied upon by the applicant. Whilst the additional body parts may complicate the evidence in respect to the incapacity that arises from the pleaded work injuries that is the factual reality of the matter.
5. Whilst the applicant had obtained an earlier report from another occupational physician,

Dr Uthum Diaz, which is dated 28 November 2022 that report predates the respondent's decision to decline liability and the identification of the occupations which the respondent submits the applicant has the capacity to perform. The report is therefore relevant to the proceedings. The respondent has had the applicant medically examined for the purposes of obtaining forensic medical reports as well as having undertaken a vocational assessment of the applicant. 6. In the respondent's submission it would be prejudiced by the admission of the report as due to its lateness they have not had the opportunity to meet the history taken by Dr Chang as to the nature of the work that the applicant has performed and have an occupational physician comment on whether those work skills are transferrable to the occupations which had been identified by the respondent as being suitable for the applicant. I do not accept this submission. The applicant has worked as an assistant in nursing since 2002 and has no other occupations whilst living in Australia. The respondent, as the applicant's employer, is aware of the duties which the applicant performed and the skills which she required to perform those duties. The applicant has also been the subject of a vocational assessment which inquired into her previous occupational history and the nature of the applicant's skill set. I am unable to identify any prejudice to the applicant by the admission of the report. The admission of the report would not delay the proceedings. I am of the opinion that the report is relevant and that it is in the interests of justice for the report to be admitted into evidence. 7. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute and attached documents (report of Dr Diaz admitted into evidence for history only);

(b) Reply and attached documents;

(c) documents attached to Application to Lodge Additional Documents (ALAD) lodged on behalf of the respondent dated 24 January 2025, and

(d) statement of the applicant dated 23 January 2025 and the report of Dr Peter Chong attached to the ALAD dated 28 January 2025 lodged on behalf of the applicant.

1. It is not disputed that the applicant sustained injury to her left knee, right knee, left ankle, scarring and consequential psychological condition as a result of the pleaded incident on

4 September 2020. 2. Payments of weekly compensation to the applicant were ceased on 26 September 2023 on the grounds that the applicant did not satisfy the pre-conditions to be eligible to receive weekly compensation pursuant to s 38 of the 1987 Act as she had been assessed with a current work capacity but was not working more than 15 hours per week. The decision to cease weekly compensation was based on the applicant having a capacity to work 12 hours per week (four hours per day three days per week) as certified by the applicant's nominated treating doctor (NTD) Dr Lim in a certificate of capacity dated 24 May 2023. In making the decision the respondent also relied on a vocational assessment report completed by Balance Rehab dated 11 April 2023 which identified call centre officer as a suitable occupation for the applicant. The applicant's NTD approved the occupation as suitable. The applicant was assessed to have a capacity to $32.16 per hour as a call centre officer earning $385.92 for a 12 hour week. 3. Section 38 of the 1987 Act states:

"38 Weekly payments after second entitlement period (after week 130)

(1) A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.

(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.

(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if -

(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and

(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and

(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.

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

(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after 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.

(8) A worker's entitlement to compensation under this section may be reassessed at any time."

1. In Roberts v University of Sydney [2021] NSWWCC 25 (Roberts) Arbitrator Harris (as he then was) considered the meaning of s 38(2) stating:

"[99] I agree with the applicant's submission that the meaning of 'indefinitely' is akin to an unknown or non-specific period.

[100] I also agree with part of the respondent's submission that the meaning relates to the 'foreseeable future', although the meaning is probably more restrictive than that because the satisfaction of the concept requires incapacity of an indefinite nature rather than just in the foreseeable period.

[103] The meaning of 'indefinitely' is not the same as 'definitely'. 'Indefinitely' does not mean 'permanent', although this was only indirectly suggested by the respondent when it submitted that it meant the same as 'maximum medical improvement'."

1. Member Wynyard adopted the interpretation of Arbitrator Harris in Holmes v Central Coast Council [2022] NSWPIC 70 (Holmes) as did President's delegate McAdam (as he then was) in Houghton v Jack & Jill Pre-School Association (Lithgow) Incorporated [2023] NSWPIC 36 (Houghton). I also agree with and adopt the interpretation in Roberts. I therefore reject the respondent's submission that "likely to continue indefinitely" means "likely to continue forever".
2. The applicant disputes the respondent's decision and contends that she had no current work capacity as at 27 September 2023 and has continued to have no current work capacity. In the respondent's submission the applicant is not totally incapacitated.
3. Section 38 needs to be read in conjunction with s 32A of the 1987 Act defines "suitable employment" as follows:

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

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

(ii) the worker's age, education, skills and work experience, and

(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v) such other matters as the Workers Compensation Guidelines may specify, and

(i) whether the work or the employment is available, and

(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

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

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

1. The respondent in coming to its decision that the applicant was fit to work 12 hours per week as a call centre officer relied on a certificate of capacity by Dr Benjamin Lim dated

24 May 2023 which certified the applicant with a capacity to work, subject to restrictions, four hours per day three days per week as well as a vocational assessment report by Balance Rehab dated 11 April 2023. 2. Prior to 8 May 2023 the applicant had been consistently and repeatedly certified with no current work capacity from 5 October 2021 in a series of certificates of capacity. 3. In a certificate of capacity dated 27 April 2023 Dr Sibanda on behalf of Dr Khan certified the applicant with no work capacity from 27 April 2023 to 25 May 2023. The management plan notes in the certificate for 27 April 2023 record that the applicant's mental health condition was deteriorating and that she had been referred to a psychologist.[1] 4. In a certificate of capacity dated 8 May 2023 Dr Lim certified the applicant with capacity for some type of work from 8 May 2023 to 5 June 2023 for four hours per day, three days per week in primarily seated duties only with an up to 1kg restriction on lifting/carrying/pushing/pulling. The certificate records a diagnosis in respect to the injuries to both knees however in the notes in respect to treatment Dr Lim records in the certificate that the applicant's mental health condition was deteriorating and that a referral had been provided to a psychologist.[2] 5. A clinical record by Dr Lim for 8 May 2023[3] records that a case conference was held with Luigi from the rehabilitation provider. Luigi was a member of Balance Rehab which provided the vocational assessment report relied upon by the respondent. That Luigi was a member of Balance Rehab is apparent from the Balance Rehab vocational assessment report dated

11 April 2023 which records among the documents reviewed an initial rehabilitation assessment report prepared by Luigi Guidone of Balance Rehab dated 19 December 2022 as well as a Balance Rehab vocational option approvals sent by Luigi Guidone to Dr Ijaz Khan dated 27 March 2023. 6. The clinical record records that the applicant had ongoing bilateral knee pain. The applicant's pain was recorded as being 8/10. It appears from the clinical record that whilst the applicant was attempting to avoid pain relief, she was taking Voltaren EC as well as using Panadeine Forte daily. On clinical examination it was noted that the applicant was walking with an antalgic gait and had global tenderness of both knees. Return to work was discussed as were suitable duties. Sedentary duties appear to have been identified as suitable however the applicant is recorded as having been teary in light of a previous history of returning to work and being bullied performing light duties. The plan was for the applicant to be upgraded to four hours per day, three days per week for suitable duties, for work placement with the assistance of a rehabilitation consultant. The applicant was to be reviewed in one month. 7. A certificate of capacity dated 24 May 2023[4] completed by Dr Mandlenkosi Sibanda for

Dr Lim certified the applicant with capacity for some type of work from 24 May 2023 to

5 June 2023 for four hours per day, three days per week with same restrictions as those detailed in the certificate dated 8 May 2023. The management plan notes in the certificate record in respect to 24 May 2023 that the applicant had complained of increasing pain in both her knees and right hip pain over the past four days, that the applicant was mobilising with crutches, that she was taking Voltaren, Panadol, Panadol Forte and had tried Endone. Any right hip condition from which the applicant may suffer has not been relied upon by the applicant in these proceedings. 8. The clinical record by Dr Sibanda for 24 May 2023[5] records that the applicant attended in respect to her knee injury. The clinical record contains very little information however does record "Prescription added: APO-TRAMADOL". The details of the consultation appear to have been recorded in the certificate of capacity. 9. In a certificate of capacity dated 6 June 2023[6] Dr Sibanda certified the applicant with no current work capacity from 6 June 2023 to 4 July 2023. The management plan notes in the certificate record in respect to 6 June 2023 that the applicant had complained of pain in her right hip, thigh and leg, she was having difficulty mobilising, using crutches around the house, was unable to go shopping, was suffering from a lack of sleep, was having difficulty sleeping on her right side due to pain. The notes record that the applicant was due for a follow up with a pain specialist. Significantly the notes also record that a case conference had been held with "Luigi (Rehab)" in which work capacity was discussed and according to the notes "[a]ll agree for downgrade-she has no current work capacity." The respondent under cover of the notice pursuant to s 78 dated 15 June 2023 disputes the downgrade in capacity. 10. Whilst the respondent disputes the downgrade in the applicant's capacity to no current work capacity it is apparent from the notes contained in the certificate of capacity itself that Luigi, a member of the respondent's own rehabilitation provider who provided the vocational assessment on which the respondent relies, had agreed to the downgrade. 11. On 6 June 2023 the applicant attended on Dr Sibanda. The clinical record of the attendance is devoid of information other than that there had been a consultation.[7] The information from this consultation again appears to have been recorded in the certificate of capacity. 12. As will be referred to below Dr Sibanda in a report dated 18 January 2024 explains that he downgraded the applicant's capacity to no work capacity because of the applicant's deteriorating mental health, uncontrolled pain, lack of sleep and due to pain and her inability to mobilise safely to the point that she required crutches to mobilise in her own home. 13. On 7 June 2023 the applicant attended a surgery consultation with Dr Nikunj Parikh. The clinical record[8] of the consultation does not record the reason for the consultation or any details of the consultation. The clinical record does record that Panadeine Forte was ceased as was APO-Tramadol, however a prescription for Norspan patches was added and a lower limb bone scan requested as well as blood tests. 14. The applicant has remained certified with no current work capacity since 6 June 2023. The last certificate of capacity in evidence certifies the applicant with no current work capacity until 26 August 2024. 15. On 10 March 2023 an assessment was conducted of the applicant by Brenda Groeneveld of Balance Rehab with a vocational assessment report dated 11 April 2023 being provided to the respondent. The report records that the documents reviewed were a vocational option approval completed by Dr Khan dated 27 March 2023 (prior to the upgrade in the applicant's capacity on 8 May 2023), a certificate of capacity prepared by Dr Khan dated

13 February 2023 and an initial rehabilitation assessment report prepared by Luigi Guidone of Balance Rehab dated 19 December 2022. 16. Ms Groeneveld identified the following suitable employment options, information officer/customer service officer, call centre officer and general clerk/administration officer. The option of general clerk/administration officer required training. 17. No face to face assessment of the applicant was undertaken for the purposes of the assessment. A vocational assessment was performed via a telephone discussion on

10 March 2023. The applicant reported to Ms Groeneveld that whilst she would like to return to work, she did not believe that she was able to manage any type of work at that time. 18. Ms Groeneveld noted that following surgery on 31 August 2021 the applicant's treatment had included psychology sessions, and that the applicant reported symptoms of depression/ anxiety and panic attacks. Ms Groenveld also noted that at the time the applicant was certified as having no current work capacity from 13 February 2023 to 13 March 2023. 19. The applicant's language skills and technology literacy was recorded by way of the applicant's self-reporting. Significantly no vocational testing, no physical assessment and no psychological assessment was conducted. Given that no testing was performed, and that the applicant was certified as having no current work capacity it is not apparent on the face of the report how Ms Groeneveld identified the suitable job options and the applicant's capacity to perform those job options. 20. One of the documents that Ms Groeneveld reviewed for the assessment was a Balance Rehab vocational option approval sent by Luigi Guidone to Dr Ijaz Khan dated

27 March 2023 which listed the physical requirements of the identified occupations of information officer/customer service officer, call centre officer and general clerk/administration officer all of which were approved by Dr Khan. Dr Lim completed a further Balance Rehab vocational option approval on 8 May 2023 which again listed the physical requirements of the three occupations with all three occupations once again being approved. The vocational option approvals did not consider the intellectual requirements of the identified occupations. 21. A copy of the initial rehabilitation assessment report prepared by Luigi Guidone of Balance Rehab dated 19 December 2022 is not in evidence before me. 22. On 2 December 2022, prior to the applicant being assessed by Ms Groeneveld, Geraldine Nelson, forensic vocational assessor/senior rehabilitation consultant, conducted an assessment interview of the applicant at the request of the applicant's solicitors. Ms Nelson subsequently provided an employability assessment report to the applicant's solicitors dated 23 December 2022.[9] The report records the applicant's condition/injury as bilateral knee arthritis, post-traumatic stress disorder and chronic pain. 23. Ms Nelson had reviewed a number of documents including reports from the applicant's NTD, Dr Khan, the treating orthopaedic surgeons, Dr Jonathan Herald and Dr Viswanathan, a report from Dr Naresh Verma, psychiatrist and occupational physician, a forensic report obtained on behalf of the applicant from Dr Uthum Diaz, occupational physician, as well as the clinical notes from Ingleburn Medical Centre. 24. Ms Nelson records a history that following sustaining injury on 4 September 2020 the applicant returned and performed suitable duties performing basic administrative tasks on reduced hours from 14 September 2020 to 26 August 2021 ceasing work as she was unable to manage the physical demands of the role. 25. In the opinion of Ms Nelson her review of the medical evidence provided to her and her assessment of the applicant indicated that the applicant had ongoing pain in both knees, with associated swelling, locking and unsteadiness of gait. In the opinion of Ms Nelson, the applicant had no current capacity for work and there was no evidence of future capacity, taking into consideration the applicant's physical and psychological difficulties. Ms Nelson concluded that the applicant had no capacity to return to her pre-injury employment or similar employment. Ms Nelson identified no suitable employment options which the applicant would be able to maintain on the open labour market due to the nature, severity and extent of her injuries. 26. Ms Nelson observed the applicant to walk slowly and deliberately with the applicant reporting that she normally walks with crutches. During the assessment the applicant was observed to change her posture from sitting to standing every 10 minutes leaning on the back of a chair, which the applicant attributed to pain, swelling and stiffness in both knees. The applicant reported that her physical symptoms had been largely unresponsive to treatment including surgical intervention. 27. The applicant reported to Ms Nelson physical symptoms which included severe bilateral knee pain and swelling while resting, day or night. The applicant reported that whilst some relief was provided with medications, it was not sufficient to help her move comfortably, and she had noticed that the oral medications were gradually becoming less effective and was required to use crutches to mobilise. The applicant reported sitting limited to 10 minutes before she needed to change postures, standing limited to 10 minutes with the applicant using crutches or leaning on furniture within the home, walking limited to short periods of 5 minutes-walking at a slow pace leaning on a person or using two crutches and inability to negotiate internal stairs (14 steps) within her home. The applicant reported that her weight had increased by over 20kg due to her reported inactivity, pain symptoms and physical restrictions. 28. The applicant reported to Ms Nelson psychological symptoms which included downcast mood secondary to her physical injury and worries about her future work capacity, lack of self-confidence both within her own and external environments, anger when considering her future and thinking of her case, irritable most days, low energy levels with profound fatigue throughout the day, difficulty absorbing information and being often unable to remember what she had been watching on television and loss of focus and concentration, lethargy and fatigue which she attributed to her fractured sleep, obsessive thinking and constant worrying, difficulties with decision making (even simple decisions), avoidance of socialising, difficulty following and participating in conversation and that whilst she can drive this was impacted by her concentration. 29. In considering the applicant's capacity to undertake employment in alternative occupations Ms Nelson noted that the applicant's employment experience in Australia had been limited to working as an assistant in nursing since 2006. In the opinion of Ms Nelson, the applicant's current physical condition limits her capacity to work in regulated work environments requiring deadlines to be met or productivity timeframes, or in environments requiring ongoing interaction with others. In the opinion of Ms Nelson, the applicant did not possess a current work capacity for alternative employment at the time of assessment or into the foreseeable future given her existing skills, training or experience and current physical and psychological limitations. 30. Ms Nelson identified the following barriers to employment:

(a) narrow range of transferable skills;

(b) fractured sleep which could lead to difficulties with concentration and reduced productivity at work;

(c) weight increased significantly which may impact negatively on her self-identity, self-esteem and overall general health;

(d) likely to have reduced work productivity and employment because of her injury and associated symptoms;

(e) limited range of occupational experience having only worked in the physically demanding role of Assistant in Nursing;

(f) lack of recent work experience-last worked in the open labour market in an unrestricted manner in 2020;

(g) reported difficulty coping with pressure, which leads to irritability and frustration;

(h) able to drive, but can be impacted by ongoing pain and limited concentration, and

(i) past treatment had not provided significant relief from her symptoms.

1. I prefer the opinion of Ms Nelson to that of Ms Groeneveld. Ms Nelson was provided with a far greater amount of documentary material on which to base her opinion. The documentary material provided to Ms Groeneveld was extremely limited and the vocational option approval completed by Dr Khan was affected by the question of the approval being essentially limited to the physical requirements of the identified positions. Ms Groeneveld otherwise appears to have been provided with little documentation in respect to the applicant's capacity both physical and in particular psychological. Notably Ms Nelson was provided with a report from a psychiatrist. As I have previously noted it is not apparent on the face of the report how

Ms Groeneveld identified the suitable job options and the applicant's capacity to perform those job options. Ms Nelson also took a far more detailed report and history of the applicant's condition, complaints and disabilities as well as identifying the barriers to the applicant's employment. In my view the foundation on which Ms Nelson's opinion has been based is far superior to that on which Ms Groeneveld has based her opinion. 2. In respect to the history of the applicant's work related condition prior to the applicant being certified with some current capacity for suitable duties on limited hours on 8 May 2023 and the issuing of the dispute notices dated 15 June 2023 and 21 August 2023, the applicant has a significant history of treatment and complaints. 3. On 10 December 2020 Dr Richard Powell, orthopaedic surgeon, examined the applicant on behalf of the respondent for the purposes of providing a forensic medical opinion. Dr Powell in his report dated 15 January 2021[10] observed that the applicant's left knee remained symptomatic. In respect to her left knee the applicant reported constant aching pain, stiffness, restricted range of motion. The applicant's mobility was reduced, and she was using a Canadian crutch in her right hand. Dr Powell records that the applicant did not complain of any right knee symptoms. 4. Of note Dr Powell found the applicant to be a most compliant and cooperative patient throughout the taking of the history and the examination. Dr Powell found no suggestion of overreaction or exaggeration and observed the applicant to be in mild to moderate pain. 5. Dr Powell noted that the knee was irritable to examine. The applicant had an antalgic gait with a shortened stance phase on the left side. 6. In the opinion of Dr Powell, the subject work related fall aggravated pre-existing though previously asymptomatic degenerative pathology in the left knee. The doctor noted that the applicant had similar pathology in the right knee where she remained asymptomatic. 7. Based on the examination Dr Powell was of the opinion that the applicant was fit to work in suitable duties. He recommended that the applicant avoid periods of prolonged standing and walking, repetitive kneeling, squatting, stair or ladder climbing. He also recommended reduced hours. 8. On 22 February 2021 the applicant attended on Dr Khan in respect to the fall at work and bilateral knee pain. The doctor records in the clinical record of the attendance that the applicant was mobilising with crutches.[11] 9. On 16 March 2021 a referral to an occupational physician psychiatrist was made.[12] 10. On 26 May 2021 Dr Jonathan Herald, orthopaedic surgeon, reported to Dr Khan, that he had given the applicant some Endep as she was developing chronic pain and was not sleeping. At the time the applicant was performing suitable work duties with the respondent and

Dr Herald recommended that she persist with those duties. Dr Herald observed that the applicant was seeing a psychologist and a psychiatrist.[13] 11. On 26 May 2021 Dr Herald also reported to the applicant's solicitors[14] in which Dr Herald diagnosed due to the subject work incident bilateral patellofemoral maltracking and retropatellar chondral damage and developing patellofemoral osteoarthritis which was resulting in difficulty with kneeling, squatting, stair climbing and walking. Dr Herald observed that whilst the applicant had a background issue of bilateral patellofemoral osteoarthritis, she was relatively asymptomatic and was functioning quite well prior to the subject work incident. 12. On 4 August 2021 Dr Herald reported to Dr Khan that the applicant continued to have knee pain. Dr Herald noted that the applicant was taking Voltaren, Panadeine Forte, Endone and Endep. Dr Herald also noted that the applicant was seeing a psychologist. Dr Herald observed that the applicant's pain was not improving, and she felt like she was plateauing. The applicant was having trouble walking. 13. Dr Herald reported that the applicant may be reaching maximum medical improvement and Dr Herald was uncertain if the applicant was going to be able to return to her job.[15] 14. On 31 August 2021 Dr Herald performed a left knee arthroscopy plus chondropasty and open "ITB release".[16] 15. On 15 December 2021 Dr Herald reported to Dr Khan that the applicant had a cortisone injection which had not given her relief. The doctor observed on examination that the applicant had a large effusion in her knee. Dr Herald had also explained to the applicant that they were reaching the stage where they may have to consider a knee replacement.

Dr Herald however was hopeful that an appointment with Dr Parker would find some anti-inflammatory medications that may work and help with the pain.[17] 16. On 13 January 2022 the rheumatologist, A/Prof Vivek Thakkar, reported to Dr Herald with a diagnosis of ongoing antalgic left knee with pain and swelling following the subject work related fall and post operative cause as well as right knee patellofemoral osteoarthritis. 17. A/Prof Thakkar observed that the applicant had clearly had a troubled path with respect to her knee. The doctor appeared to conclude that the existence of an underlying rheumatological condition was unlikely but did recommend some further investigations. A/Prof Thakkar observed that the applicant did appear to be developing some chronic pain issues.[18] 18. On 11 February 2022 Dr Herald once again reported to Dr Khan observing that the applicant was still in a lot of pain and that the rheumatologist had failed to find an inflammatory cause for her pain. Dr Herald noted on examination that the applicant had a large effusion in her knee joint and was having trouble walking. The doctor noted that the applicant was still struggling with pain which was focused over her knees, which she was managing with Palexia and Endone, and that she was still having difficulties sleeping at night. Dr Herald reported that there may be no other option other than a knee replacement.[19] 19. On 29 July 2022 Dr Herald reported to Dr Khan that he had explained to the applicant that the rheumatologist had not identified a rheumatological cause for her knee symptoms.[20] 20. On 20 October 2022 Dr Khan, the applicant's NTD and a occupational and environmental health practitioner, reported to the applicant's solicitors. The doctor reported a diagnosis (which appears to have been taken from Dr Herald and Dr Naresh Verma) of right knee patellofemoral osteoarthritis with ongoing patellofemoral dysfunction, left knee post-op left knee arthroscopy with chondroplasty and open ITB release of 31 August 2021, chronic left ankle pain, stiffness and discomfort secondary to an acute hyper inversion lateral ligament sprain as well as an adjustment disorder with anxious distress in the context of the work-related physical injury. 21. Dr Khan reported that in his opinion the applicant was clinically unfit to return to any of the physically demanding substantive duties of her pre-injury role as an assistant in nursing with the respondent on an ongoing and permanent basis. 22. Dr Khan was of the opinion that the applicant was totally unfit to carry out any duties which may require dynamic knee stability, dynamic ankle stability and lumbar loading which would include any lifting, pushing, pulling, turning, twisting, kneeling, crouching, bending, stooping, stairs and ladders. Based on the clinical evidence, multiple review findings, the severity and chronicity of the underlying clinical complaints and symptoms, noting the applicant's education, qualifications, training and workplace experience, it was also the clinical opinion of Dr Khan that the applicant was totally unfit for any vocation for which she has education, training or workplace experience on an ongoing and permanent basis.[21] 23. On 24 November 2022 the applicant attended on Dr Khan who recorded in the clinical record of the attendance that the applicant had a sleep abnormality due to her knee pain.[22] 24. Prior to the applicant being certified with capacity for some type of work on restricted hours on 8 May 2023 the applicant attended on Dr Uthum Dias, occupational physician, on

28 November 2022 at the request of her solicitors for the purposes of obtaining an expert forensic medical report. In his report dated 28 November 2022[23] (the report is only in evidence in respect to history) Dr Diaz records that the applicant reported that her left knee condition had only slightly improved from a symptomatic perspective over the course of the previous 15 months since the left knee surgery. Dr Diaz observed that the applicant continued to suffer from debilitating stiffness, pain and discomfort affecting her left knee on a daily basis as well as ongoing moderate symptoms of right knee pain, stiffness and discomfort as well as mild symptoms of left ankle pain, stiffness and discomfort. 25. Dr Diaz records that the applicant recalled that following the subject work injury she was off work for one week before returning to work on restricted duties and restricted hours. She remained on restricted duties, working approximately four hours per day, three days per week performing primarily seated administrative office based duties, up until late August 2021, just prior to the left knee surgery. The applicant had not returned to work since

26 August 2021. 26. Dr Diaz recorded the applicant's current symptoms, as at the time of examination, as being moderate to severe bilateral knee pain, stiffness and discomfort associated with recurrent swelling and intermittent instability. She also suffered from mild symptoms of left ankle pain, stiffness and discomfort. The applicant assessed her symptoms of pain overall at around 8/10 on the visual analogue scale on a daily average basis. Her bilateral knee pain significantly and consistently affected her sleep. 27. The applicant reported to Dr Diaz that she struggled to walk for more than two minutes at a time on flat ground before having to stop due to worsening bilateral knee pain. She avoided walking on uneven ground and found stairs extremely difficult to navigate. She struggled to stand for more than five minutes at a time due to worsening bilateral knee pain. She can sit for up to 30 minutes as long as she can stretch her legs out. She avoids driving for more than 10 minutes at a time due to bilateral knee pain. She avoided doing any tasks that involved kneeling, squatting or crouching due to her knees. 28. The applicant was examined by Dr Assad Saboor, psychiatrist, on 2 March 2023 who provided a forensic report to the applicant dated 21 March 2023.[24] Dr Saboor diagnosed the applicant with a major depressive illness with anxiety features as a result of the physical injuries sustained as a result of the subject work incident. 29. In the opinion of Dr Saboor, the applicant was disabled from a psychological perspective. 30. Considering her condition, circumstances, physical injury, ongoing chronic pain and consequential depressive illness, Dr Saboor was of the opinion that the prognosis was guarded. In his opinion the applicant's condition is permanent and enduring. The doctor did not expect a substantial improvement in the long term that she should be able to return to any gainful employment. 31. Dr Powell re-examined the applicant on 24 March 2023, providing forensic medical reports to the respondent dated 5 May 2023.[25] On examination the applicant reported ongoing left knee symptoms and that the right knee had again become problematic. According to Dr Powell the applicant reported no current left ankle symptoms. Dr Powell noted that the applicant had also been diagnosed with anxiety and depression. 32. The applicant reported ongoing bilateral knee symptoms which she indicated were similar in character, location and intensity. In respect to the left knee the applicant reported intermittent activity related pain which was aching in character and which occurred on a daily basis and which was accompanied by swelling and clicking. The applicant could not kneel, squat or run. The applicant reported no instability but was aware of some catching. The knee was stiff with a restricted range of motion. 33. In respect to the right knee the applicant reported pain which was aching in character but more constant and which was accompanied by swelling and clicking. The applicant also reported subjective instability and locking as well as stiffness and restriction of range of movement. 34. The doctor again noted that the applicant was a compliant and cooperative patient. 35. Dr Powell observed the applicant to have a mild limp with shortened stance phase on the left side. 36. In the opinion of Dr Powell, she suffered a direct blow to both knees in the subject work related fall resulting in an aggravation of pre-existing patellofemoral compartment osteoarthritis. The applicant also sustained a soft tissue injury to the left ankle which in

Dr Powell's opinion had made a complete recovery. 37. Based on his examination and limiting his opinion to the orthopaedic injuries, Dr Powell did not believe that it would be advisable for the applicant to return to her pre-injury duties as an assistant in nursing. Dr Powell did not believe that the applicant would tolerate the physical demands of the role. 38. Dr Powell was of the opinion that the applicant had the capacity to return to work performing suitable duties with restrictions in respect to standing, walking, bending, kneeling, squatting and stair climbing. In view of the applicant's prolonged absence from work, Dr Powell recommended that the applicant return to work on reduced hours. The doctor also recommended that the applicant should alternate her tasks where possible and have the opportunity for regular rest breaks. 39. In the opinion of Dr Powell, the applicant would be best suited to work of a sedentary nature finding that she could perform clerical, office or administrative based duties. 40. In the opinion of Dr Powell, the applicant's partial incapacity is multifactorial taking into account contribution from the work related injuries involving the knees, the pre-existing degenerative pathology involving the knees and the mental health issues. 41. Dr Powell observed that whilst the applicant demonstrated a heightened pain response no specific inconsistencies were identified. 42. In my view the medical evidence supports that prior to the subject work incident on

4 September 2020 the applicant was relatively asymptomatic and functioning well. 43. In my view the medical evidence also supports that prior to the applicant being certified as having some current work capacity on 8 May 2023 and prior to the work capacity decision being made that the applicant had in particular a debilitating knee condition which had failed to respond to treatment. The evidence supports that the applicant experienced difficulty with kneeling, squatting, stair climbing, walking and relied on crutches to ambulate. 44. The medical evidence also in my view supports that the applicant suffered from chronic and intractable pain. The applicant's pain was such that she has taken a variety of medications in an unsuccessful attempt to control her pain including the powerful narcotic analgesic Endone. The medical evidence supports that the pain also affected the applicant's sleep. 45. Whilst the applicant came to left knee surgery at the hands of Dr Herald on 31 August 2021 this appears to have given the applicant little symptomatic relief as did a cortisone injection. In the opinion of Dr Herald, the only remaining option was consideration of a total knee replacement after a rheumatological cause for the applicant's pain had been dismissed. Following the left knee surgery the applicant's right knee condition has deteriorated. 46. The applicant also developed an accepted consequential psychological condition which warranted referral to a psychologist and psychiatrist with Dr Saboor diagnosing a major depressive illness with anxiety features as a result of the physical injuries sustained as a result of the subject work incident. 47. Turning now to the applicant's condition after the downgrade in her capacity to no current work capacity and the issuing of the work capacity decision. 48. On 13 November 2023 the applicant was examined by Dr Perter Giblin, orthopaedic surgeon, at the request of the Commission as an appointed Medical Assessor. In a Medical Assessment Certificate (MAC) dated 15 November 2023 Medical Assessor Giblin observed that the applicant walked "very very slowly with a tiny short stepped gait and a marked limp." 49. On 18 January 2024[26] Dr Sibanda, occupational medicine practitioner, reported to the applicant's solicitors that the applicant's injuries as a result of the subject fall had resulted in an incapacity to perform her pre-injury duties. Dr Sibanda was of the opinion that the applicant did not currently possess any capacity to safely and sustainably perform suitable duties without posing a significant risk to aggravation of her condition. The injuries in the opinion of Dr Sibanda presented an ongoing disadvantage to performing in any meaningful capacity in the workforce for the foreseeable future. Dr Sibanda did not believe that the applicant had the capacity to work in the roles of call centre officer, information officer/customer service officer, and general clerk/administration officer for four hours per day, three days per week noting that the applicant's pain had remained resistant to treatment. 50. Dr Sibanda noted that he downgraded the applicant's capacity to having no work capacity because of her deteriorating mental health, uncontrolled pain, lack of sleep due to pain and her inability to mobilise safely to the point that she required crutches to mobilise in her own home. 51. Dr Sibanda identified the injuries which had been sustained as a result of the subject work incident as to the bilateral knees, left ankle as well psychological injury. 52. In the opinion of Dr Sibanda the applicant's future prognosis was poor. 53. On 25 January 2024[27] Dr Herald reported to the applicant's solicitors providing a diagnosis of bilateral patellofemoral osteoarthritis with maltracking and retropatellar chondral damage and developing medial compartment osteoarthritis. 54. Dr Herald reported that the applicant was developing chronic pain, depression and may also have post-traumatic stress disorder, however the doctor observed that the applicant's mental health injuries were out of his area of expertise. 55. Dr Herald was of the opinion that the applicant's prognoses was poor. 56. Dr Herald noted that he had recommended treatment by a pain specialist, Dr Parikh. 57. In the opinion of Dr Herald, the applicant was not able to return to her pre-injury occupation as an assistant in nursing. In the opinion of Dr Herald, due to the combination of her physical injuries she was only fit for seated-type duties. However, based on her level of education and training, it was unlikely that she would be able to find any meaningful employment within her physical restrictions. Dr Herald observed that whilst customer service officer, call centre officer and general clerk administration officer may be suitable for the physical injuries and the fact that she is seated during these activities, the applicant may not have the education and training or the mental stamina to deal with customer service and administration work. 58. Dr Powell re-examined the applicant on 3 May 2024 providing a further forensic report to the respondent dated 24 May 2024.[28] Dr Powell noted that liability had been accepted for injury to both knees and left ankle. Dr Powell records that in addition to the bilateral knee and left ankle injuries the applicant was suffering from:

(a) bilateral hip osteoarthritis, which was more marked on the right side;

(b) a primary osteoarthritic process with early onset and clearly widespread generalised and symmetrical changes involving the lumbar spine, pelvis, bilateral hips, knees and feet, and the left ankle;

(c) mental health issues with a diagnosis of anxiety and depression;

(d) a chronic pain syndrome, and

(e) an elevated body mass index for which she is considering a gastric bypass procedure.

1. Dr Powell noted that since his previous examination the applicant complained of the development of right hip symptoms in respect to which investigations had identified the presence of bilateral osteoarthritis which was more marked on the right side. In the opinion of Dr Powell this is most likely part of a more generalised primary osteoarthritic process that also involves the lower back, pelvis, bilateral hips, knees, ankles and feet.
2. In the opinion of Dr Powell, the available evidence indicated that the applicant is suffering from a primary generalised osteoarthritic process which was impacting on her current presentation. In addition, she had features of a chronic pain syndrome as well as significant mental health issues which were also likely to be impacting negatively on her presentation.
3. Based on his examination and limiting his opinion to the orthopaedic injuries that form the subject of this claim, Dr Powell did not believe that the applicant was fit to perform her full pre-injury duties. In the opinion of Dr Powell, the applicant would not be able to tolerate the physical demands of that role.
4. In the opinion of Dr Powell, the applicant was fit to perform suitable duties avoiding periods of prolonged standing and walking and repetitive kneeling, squatting and stair or ladder climbing. She should not work in elevated areas. In the opinion of Dr Powell there was no reason why the applicant would not be able to perform work of a sedentary nature. In view of her prolonged absence from the workforce Dr Powell recommend that the applicant return to work on reduced hours. Her hours could then be increased in a graduated fashion as tolerated.
5. In respect to the applicant's musculoskeletal injuries, Dr Powell, believed that the applicant did have the physical capacity to work as an information / customer service officer, a call centre officer, and a general clerk / administration officer within restrictions.
6. Dr Powell again observed that the applicant's partial incapacity was multifactorial taking into account contribution from the accepted work related injuries involving the left knee, right knee and left ankle, as well as underlying primary osteoarthritic process which affects multiple joints and her mental health issues including the chronic pain syndrome.
7. In the opinion of Dr Powell, the prognosis is poor. In the opinion of Dr Powell, the applicant is suffering from a primary osteoarthritic process with mild to moderate involvement of the lumbar spine, sacroiliac joints, bilateral hips, knees, feet and left ankle, the natural history of which was for continued deterioration over time. In addition, the applicant had features of a chronic pain syndrome on a background of mental health issues. Dr Powell did not believe that further treatment was likely to result in any significant symptomatic or functional improvement.
8. Dr Powell provided a further report to the respondent dated 23 January 2025[29] after reviewing documentation provided by the respondent and without a further clinical examination of the applicant. In the opinion of Dr Powell "it is clearly apparent" that the applicant is suffering from a chronic pain syndrome.
9. Dr Kelvin Chong, occupational physician, provided a forensic report to the applicant dated

27 September 2024. Dr Chong recorded that the applicant experiences persistent right knee pain which the applicant rated as between 5 to 10 out of 10 on the visual analogue scale, making it difficult for her to tolerate long periods of weight-bearing. She experienced episodic left knee pain which fluctuated between 2 to 10 out of 10 in pain intensity with weight bearing and can last for hours. The applicant rated her left ankle pain at 3 out of 10 which worsens with weight bearing. To aid her mobility the applicant used two crutches. The applicant also complained of lower back pain which worsens with prolonged sitting, standing, bending and lifting as well as episodic right hip pain triggered by weight bearing activities such as standing, walking or sitting. 10. Dr Chong recorded that the applicant struggled to walk on flat ground for more than one minute without needing to stop due to worsening knee pain, she avoided uneven ground. The applicant was intolerant of standing for more than five minutes, as she experienced worsening pain in her knees and hip. She could sit for about five minutes, provided she could adjust her posture. She was unable to kneel or squat. Her pain, particularly from the right knee and hip, disrupts her sleep. The applicant also reported symptoms of depression and anxiety. 11. Dr Chong observed the applicant to walk slowly with an antalgic gait using two crutches. The applicant sat with obvious discomfort changing her posture every few minutes. 12. In the opinion of Dr Chong, the applicant sustained traumatic impact injuries in the subject work incident to both her knees and sprained her left ankle. These injuries resulted in persistent aggravations of previously asymptomatic degenerative conditions affecting both her knees, and chronic pain in her left ankle. 13. Dr Chong observed that the degenerative process in both the applicant's knees will continue, and that the applicant is a likely candidate for bilateral knee replacements in the future. 14. In the opinion of Dr Chong, the applicant is totally unfit for any form of employment and the disabilities are likely to persist on an indefinite basis. In coming to his opinion as to the applicant's work capacity Dr Chong took into consideration not only the accepted injuries to both the knees and left ankle but also the applicant's lower back and hip condition which is not relied upon by the applicant in these proceedings. 15. Dr Chong agreed with the downgrade in the applicant's work capacity from 12 hours per week to nil on 6 June 2023 given the applicants lower back and hip symptoms which significantly reduced her capacity and tolerance to mobilise, sit and stand. 16. Dr Chong did not agree with the opinion of Dr Powell that the applicant was capable of performing sedentary duties. In the opinion of Dr Chong, the applicant would struggle with symptoms of pain and discomfort involving her lower back and hip. I note that the conditions of the lower back and hip are not relied upon by the applicant. 17. In respect to the applicant's psychological condition Shayma Almoty, treating psychologist, reported to the applicant's solicitors on 16 January 2024.[30] Ms Almoty diagnosed the applicant with post-traumatic stress disorder and with mixed depression and anxiety. 18. In the opinion of Ms Almoty, the applicant's psychological condition is largely impacted by her physical health and believed that it is likely that the applicant will have some psychological injury and distress whilst her poor physical health persists. Ms Almoty was of the opinion that the applicant's symptoms of post-traumatic stress disorder may show some improvement with treatment over the following six months however it is likely that she will face ongoing triggers and find it difficult to cope. 19. Ms Almoty was of the opinion that it is difficult to determine whether the applicant's psychological injury has created a direct incapacity for work as she remained unfit for work due to her physical injuries. In the opinion of Ms Almoty, the applicant's psychological fitness for work could not be assessed until her physical fitness had been upgraded. 20. In somewhat of a contradiction Ms Almoty was also of the opinion that the applicant's high levels of pain, rumination about her future, lack of sleep and loss of quality of life rendered her psychologically unfit for work as she lacks focus, memory and concentration. In the opinion of Ms Almoty, the applicant's future work prospects are undoubtedly impacted by her psychological health because her levels of focus, memory and concentration are impaired. In the opinion of Ms Almoty, it would be difficult for the applicant to learn novel tasks or stay on track. The applicant would not be able to handle critical responsibilities, and she could be a hazard to herself, and others should she fail in her role. 21. In the opinion of Ms Almoty, the applicant was not a viable candidate for the roles of information officer/customer service officer, call centre officer, and general clerk/administration officer as they require concentration, focus, an ability to meet targets and employer demands, agility of mind and problem solving. The applicant would need to be able to meet client needs and manage multiple tasks and increasing workloads. The roles involve a large volume of repetitive phone calls or customer queries, and the applicant did not currently possess the psychological capacity to perform these duties on reduced sleep and high levels of chronic pain. 22. The respondent retained Dr Peter Young, psychiatrist, to provide forensic reports. 23. Dr Young in a report dated 9 September 2024[31] records a diagnosis of a major depressive disorder which appeared to have resulted from her physical injury and chronic pain symptoms. 24. Dr Young was of the opinion that the applicant was unfit to work however she could benefit from commencement of a graded return to work plan following more adequate symptom control and use of antidepressant medication. 25. Dr Young observed no inconsistency on examination. 26. Dr Young was of the opinion that the prognosis was guarded, however there was significant prospect for improvement with further treatment. 27. Dr Young was of the opinion that the applicant could benefit from engagement in further education or training, or she could commence a return to work process with minimal hours (four hours per week) in volunteer work or other activity with upgrade depending on progress. 28. If treatment was effective a return to basic simple administrative duties or similar roles might be achieved within 6 to 12 months on limited hours. In the opinion of Dr Young the roles of information officer/customer service officer, call centre office and general clerk/administration officer appeared suitable. 29. The opinion of Dr Young is somewhat confused in that the doctor initially expresses the opinion that the applicant was unfit for work but then seems to suggest that the applicant did have some limited capacity to perform basic simple administrative duties or similar roles. 30. In the opinion of Dr Young, the restrictions in respect to the psychological injury related to attention, concentration and motivation. 31. Dr Young provided a further forensic report to the respondent date 31 October 2024[32] after reviewing documentation and without further examination. Dr Young remained of the opinion that a well-supported and appropriately graded return to work process was possible and likely to benefit the applicant. However, it was not possible to predict the rate of upgrade which should be determined following commencement of the process with feedback from the treatment providers. In the opinion of Dr Young, it was more important to commence this even with a very minimal capacity than to attempt to predict a longer-term outcome which is necessarily uncertain. Therefore, the doctor's recommendation was for the applicant to be certified as fit for suitable duties commencing at just four hours per week which may involve simpler duties or educational and retraining activities for what may be more suitable roles in the future. Whilst the doctor believed that such an approach is appropriate, success was not guaranteed. 32. Dr Young provided a further forensic report to the respondent dated 20 January 2025.[33] The doctor maintained his opinion and observed that the documents support the diagnosis of ongoing pain due to exacerbation of underlying arthritic processes as a result of the work injury with this having further secondary psychiatric effects and the development of a chronic pain syndrome. 33. Dr Young in a further report dated 23 January 2025[34] expressed the opinion that "it is clearly apparent she is suffering from a chronic pain syndrome and on that basis referral to a Pain Specialist would be considered reasonably necessary." 34. Having considered the evidence I am of the view that the applicant had no current work capacity prior to and as at 8 May 2023 and that she has continued to have no current work capacity to date. I am also of the view that the applicant is likely to continue indefinitely to have no current work capacity. 35. As previously discussed, it is my view that the medical evidence supports that prior to the subject work incident on 4 September 2020 the applicant was relatively asymptomatic and functioning well and that the medical evidence also supports that prior to the applicant being certified as having some current work capacity on 8 May 2023 and prior to the work capacity decision being made, the applicant had in particular, a debilitating knee condition which had failed to respond to treatment and which significantly affected the applicants function. It is not disputed that the applicant developed a consequential psychological condition. The pain also affected the applicant's sleep. 36. There is no suggestion in the evidence that the applicant has been fit for pre-injury duties at any relevant time. The respondent terminated the applicant's employment on 2 June 2023 due to her being unable to perform her pre-injury role as an assistant in nursing. 37. It is necessary when assessing the applicant's capacity to consider not only the accepted physical injuries but also the accepted consequential psychological condition. 38. Dr Powell who re-examined the applicant on behalf of the respondent on 24 March 2023, shortly prior to the applicant's capacity being upgraded on 8 May 2023, was of the opinion that the applicant had the physical capacity to return to work performing suitable duties with restrictions. In view of the applicant's prolonged absence from work, Dr Powell recommended that the applicant return to work on reduced hours. The doctor also recommended that the applicant should alternate her tasks where possible and have the opportunity for regular rest breaks. In the opinion of Dr Powell, the applicant was best suited to work of a sedentary nature. That she could perform clerical, office or administrative based duties. 39. Whilst Dr Powell may have assessed the applicant to have some current capacity for work the applicant's psychological condition also needs to be considered. 40. Dr Saboor, psychiatrist, who examined the applicant on 2 March 2023 diagnosed a major depressive illness with anxiety features as a result of the physical injuries sustained as a result of the subject work incident. In the opinion of Dr Saboor, the applicant was disabled from a psychological perspective. 41. In the opinion of Dr Saboor, the applicant's condition was permanent and enduring. The doctor did not expect a substantial improvement in the long term that she should be able to return to any gainful employment. 42. As previously discussed the respondent in coming to its decision that the applicant was fit to work 12 hours per week as a call centre officer relied on a certificate of capacity by Dr Lim dated 24 May 2023 which certified the applicant with a capacity to work, subject to restrictions, four hours per day three days per week as well as a vocational assessment report by Balance Rehab dated 11 April 2023. 43. Whilst the applicant was certified with a capacity to work on 8 May 2023 it had been noted on 27 April 2023 that the applicant's mental health was deteriorating an observation which was again made on 8 May 2023. 44. When the applicant was downgraded back to having no work capacity on 6 June 2023 the downgraded was agreed to by "all" which appears to have included Luigi from Balance Rehab. Whilst it is recorded that the applicant was suffering from right hip pain at the time, which is not relied upon by the applicant, the right hip condition appears to have been of little importance having been present for only four days prior to the certificate of capacity of

24 May 2024. 45. Dr Sibanda subsequently explains in a report dated 18 January 2024 that he downgraded the applicant's capacity to no work capacity because of the applicant's deteriorating mental health, uncontrolled pain, lack of sleep and due to pain and her inability to mobilise safely to the point that she required crutches to mobilise in her own home. 46. The applicant has remained certified with no current work capacity since 6 June 2023. The last certificate of capacity in evidence certifies the applicant with no current work capacity until 26 August 2024. 47. As previously discussed, I prefer the opinion of Ms Nelson, that the applicant did not possess a current work capacity for alternative employment at the time of assessment or into the foreseeable future given her existing skills, training or experience and current physical and psychological limitations, to that of Ms Groeneveld. As previously discussed, it is my view that the foundation on which Ms Nelson's opinion has been based is far superior to that on which Ms Groeneveld based her opinion. 48. Whilst Dr Khan did approve the alternate occupations identified by Ms Groeneveld the documents requesting the doctor's opinion as to the suitability of the occupations only drew the doctor's attention to the physical aspects of the occupations and not to the intellectual requirements. 49. Following the downgrade in capacity on 6 June 2023 and the work capacity decision

Dr Herald, the applicant's treating orthopaedic surgeon, provided an opinion on

25 January 2024 that whilst customer service officer, call centre officer and general clerk administration officer may be suitable for the physical injuries and the fact that she is seated during these activities, the applicant may not have the education and training or the mental stamina to deal with customer service and administration work. 50. Dr Powell who re-examined the applicant on 3 May 2024 also believed in respect to the musculoskeletal injuries that the applicant did have the physical capacity to work as an information/customer service officer, a call centre officer, and a general clerk/administration officer within restrictions. However, Dr Powell, as did Dr Herald, cautioned that the applicant's incapacity was multifactorial including mental health issues. 51. Dr Chong did not agree with the opinion of Dr Powell that the applicant was capable of performing sedentary duties. However, the value of the opinion of Dr Chong for present purposes is compromised by his reliance on symptoms of pain and discomfort involving the lower back and hip which are not relied upon by the applicant. 52. The applicant's treating psychologist Shayma Almoty in a report dated 16 January 2024 diagnosed the applicant with post-traumatic stress disorder and with mixed depression and anxiety. I do not accept the diagnosis of post-traumatic stress disorder. Neither of the psychiatrist Dr Young or Dr Saboor made such a diagnosis and the applicant would not appear to fall within the definition of the condition under DSM-5 having not been exposed to actual or threatened death, serious injury, or sexual violence. Dr Young diagnosed a major depressive disorder whilst Dr Saboor similarly diagnosed a major depressive illness with anxiety features. 53. Dr Young in his report dated 9 September 2024 provides a rather confusing opinion diagnosing a major depressive disorder which appeared to have resulted from her physical injury and chronic pain symptoms. In the opinion of Dr Young, the restrictions in respect to the psychological injury related to attention, concentration and motivation. 54. Dr Young initially finds the applicant unfit for work whilst observing that she could benefit from the commencement of a graded return to work plan following more adequate symptom control and the use of antidepressant medication. 55. Dr Young was of the opinion that the applicant could benefit from engagement in further education or training, or she could commence a return to work process with minimal hours (four hours per week) in volunteer work or other activity with upgrade depending on progress. I take it that the benefit which Dr Young is referring to is psychological in nature. 56. Dr Young then appears to express the opinion that if treatment was effective a return to basic simple administrative duties or similar roles might be achieved within 6 to 12 months on limited hour and that the roles of information officer/customer service officer, call centre office and general clerk/administration officer appeared suitable. 57. Dr Young then seems to suggest that the applicant did have some limited capacity to perform basic simple administrative duties or similar roles. 58. Dr Young in his supplementary report date 31 October 2024 confirmed his opinion that a well-supported and appropriately graded return to work process was possible and likely to benefit the applicant. However, the doctor advised that it was not possible to predict the rate of upgrade which should be determined following commencement of the process with feedback from the treatment providers. In the opinion of Dr Young, it was more important to commence this even with a very minimal capacity than to attempt to predict longer-term outcome which is necessarily uncertain. Therefore, the doctor's recommendation was for the applicant to be certified as fit for suitable duties commencing at just four hours per week which may involve simpler duties or educational and retraining activities for what may be more suitable roles in the future. Significantly whilst the doctor believed that such an approach is appropriate, success was not guaranteed. 59. Reading the reports of Dr Young as a whole I am of the view that Dr Young is not of the opinion, in accordance with his initially expressed view, that the applicant has any work capacity. It is my view that what is being suggested by Dr Young is that the applicant may benefit psychologically from a return to work rather than expressing an opinion as to her capacity to do so. This in my view is confirmed by the doctor's consideration that initially rather than returning to paid employment the applicant could engage in voluntary work, educational or retraining activities. 60. Dr Young's opinion that the restrictions in respect to the psychological injury related to attention, concentration and motivation is fairly consistent with the opinion of Ms Almoty that the applicant was not a viable candidate for the roles of information officer/customer service officer, call centre officer, and general clerk/administration officer as they require concentration, focus, an ability to meet targets and employer demands, agility of mind and problem solving. 61. For the above reasons and due to the combination of the physical and consequential psychological injuries I am of the view that the applicant has been and remains totally incapacitated. 62. As to whether the applicant is likely to continue indefinitely to have no current work capacity it has been over four years since the injury was sustained and there is little to indicate that the applicant's physical condition is likely to improve, rather the opposite appears to be the case. 63. In the opinion of Dr Powell, the prognosis is poor. Dr Powell did not believe that further treatment was likely to result in any significant symptomatic or functional improvement.

Dr Herald also believed that the prognosis was poor. Dr Chong observed that the degenerative process in both the applicant's knees will continue, with the applicant being a likely candidate for bilateral knee replacements in the future. However, the option of a knee replacement appears to be being avoided at this point due to the applicant's relatively young age. 64. In respect to the applicant's psychological condition Dr Young is of the opinion that the applicant would likely benefit from a more structured "CBT" based therapy as well as psychological interventions specifically directed to the management of her pain symptoms as well as a graded return to work following more adequate symptom control and use of antidepressant medication. However, there has been extensive efforts made to manage and control the applicant's symptoms without success. As previously discussed, it is my view that Dr Young is suggesting a return to work program on the basis that the applicant would benefit psychologically from such a program. Significantly whilst the doctor recommended such an approach, he observed that success was not agreed. 65. Whilst Dr Young may be hopeful that with further treatment the applicant's condition may improve to a point where she has some capacity for work the inability to reduce and manage the applicant's pain would appear to pose a significant barrier. The period in which this hoped for improvement is to take place is also highly uncertain and is in my view in accordance with the wording of Arbitrator Harris in Roberts "an unknown or non-specific period." 66. For the above reasons I am of the view and find that the applicant "is likely to continue indefinitely to have no current work capacity". 67. I do not accept the respondent's position as submitted at [9] that there has been a "substantial recovery from the effects of the injury". The medical evidence, as discussed above, in my view supports that the applicant's condition has deteriorated rather than improved. 68. For the above reason I am of the view and find that the applicant had no current work capacity prior to and as at 8 May 2023 and that she has continued to have no current work capacity to date. I am also of the view that the applicant is likely to continue indefinitely to have no current work capacity. 69. I am also of the view that the medical evidence supports that the applicant has developed and suffers from a chronic pain syndrome as a result of her work related injuries. Dr Powell, Dr Saboor and Dr Young have all diagnosed the syndrome. There is no medical opinion that disputes that the applicant suffers from a chronic pain syndrome. Dr Young in his report dated 20 January 2025 causally connected the syndrome to the subject work injuries. There is no evidence to the effect that the syndrome is related to any other cause. 70. I find that the applicant has an entitlement to weekly benefits compensation pursuant to s 38 of the 1987 Act on the basis of having no current work capacity from 27 September 2023 to date and continuing. 71. As there is an award in favour of the applicant for weekly compensation there will also be a general order pursuant to s 60 of the 1987 that the respondent pay the applicant's medical and treatment expenses in respect to injury to the left knee, right knee, left ankle, consequential psychological injury and chronic pain syndrome.

[29] Respondent's ALAD dated 23 January 2025 pp. 122-124.

[33] Respondent's ALAD dated 24 January 2025 pp. 119-121.

[34] Respondent's ALAD dated 24 January 2025 pp. 122-124.