"Delivery Driver: This role likely involves lifting and carrying heavy items which I find challenging due to my restricted lifting capacity and the pain caused by such activities. Furthermore, driving for extended periods and then delivering a product does not allow me sufficient time to rest my shoulder. As a result, I do not believe a job as a delivery driver is suitable for my current condition.

School Crossing Supervisor: Standing for prolonged periods is difficult for me as I require frequent breaks from standing and position changes. Not being able to do this causes fatigue and pain in my left shoulder. Also, I may be required to hold up a sign for extended periods. Due to my left shoulder injury, I would hold this with my right arm, however I am worried about causing pain in my right shoulder due to overcompensation.

Sales Assistant: Constant standing and interaction with customers will be difficult. I struggle to stand for prolonged periods at home without causing pain in my shoulder. Furthermore, as I am dealing with customers all day, it will be difficult to take a break at times when I am experiencing pain."

1. The applicant denied that he could perform modified duties with an alternative employer for 30 hours per week, stating that tasks involving significant weight bearing or repetitive movements with his left arm were challenging and unsafe for him as they caused pain.
2. The applicant said he had not obtained any recent certificates of capacity as he was not in receipt of weekly benefits and had not been asked to provide them.
3. The applicant outlined his functional restrictions. With regard to driving, the applicant stated:

"In terms of travel, I experience restrictions due to my condition. I recall that any significant travel I have made since sustaining my injury involves lots of breaks from both driving and sitting in the passenger seat, as well as continual adjustments to my seating position."

1. The respondent relies on an Earning Capacity Assessment completed by Compensation Assistance Services (CAS) on 23 June 2023.
2. The report noted that the applicant drove from Nowra for the assessment, taking two hours with one break. At the time of the assessment, the applicant was 61 years old.
3. The applicant gave a history of the left shoulder injury and stated that he had no treatment. The applicant continued to complain of pain in the lateral aspect of the left shoulder radiating as far as the elbow. The applicant reported that he was independent in performing tasks at his home including daily living skills and did his grocery shopping locally. He reported that he liked travelling and drove an automatic vehicle. He reported he stopped and had regular breaks due to pain when driving long distances.
4. The report noted:

"Mr Shack was asked to outline his functional restrictions in relation to his physical injury. He reported on the following capacity. Sitting up to 30 minutes, standing and walking up to 10 minutes, driving 30 minutes at a time and travelling up to 2 hours. He reported he mostly drives locally. He was observed to lift 5kg bilaterally from floor to waist height and to carry 5kg bilaterally. He carried 2.5kg with his left arm and 5kg with his right arm. He was observed to have upper limb function within normal limits in the manipulation of nuts and bolts and could type on a keyboard with one finger typing of the right hand. He had reduced overhead reaching with the left arm."

1. The applicant was observed to demonstrate a good level of English communication skills and was expected to have the ability to read and write in English at least at an average level. The applicant was able to use a smart phone to make and receive phone calls, send text messages, browse the Internet and navigate to a location. The applicant reported minimal exposure to computers in the workplace and personally.
2. The applicant was assessed as fit for sedentary to light levels of work with the following restrictions:

"• Lifting bilaterally up to 5 kilograms from floor to the knee, 2.5 kilograms from knee to waist, and 2.5 kilograms from waist to chest height.

• Carrying up to 5 kilograms bilaterally, and 2.5 kilograms with the left and right hand.

• Avoid reaching above shoulder height with the left arm.

• Avoid both strenuous and highly repetitive, fast-paced activities with the left arm.

• To have the ability to adjust/alternate position, eg sitting and standing and take short, intermittent rest breaks as required."

1. It was assessed that the applicant could work 30 to 38 hours per week provided an appropriate work environment and duties are available in the following roles:

1. With regard to the role of delivery driver (light products) it was noted:

"This is a sedentary to light role and is within Mr Shack's demonstrated capacities of lifting and carrying bilaterally up to 5 kilograms. In this role, Mr Shack is able to avoid reaching above shoulder height with the left arm and strenuous or highly repetitive, fast-paced activities with the left arm. There is opportunity to vary posture between sitting and standing and to take short, intermittent rest breaks. Mr Shack is competitive in this role as he has good communication and customer service skills as demonstrated in his ability to communicate with others when working in his previous role as a Truck Driver including delivery and pick up of items, training new drivers and also when working as a spray painter. He has a current Class MC Driver's Licence and the ability to navigate to various locations. He has the ability to use a smart phone/device and to work autonomously as shown in his experience as a Truck Driver."

1. With regard to the role of school crossing supervisor, the report commented:

"This role was selected for Mr Shack as it is considered sedentary to semi-light in nature and allows for variation between sitting, standing and walking and opportunity to take short, intermittent rest breaks. The employee is required to hold a Stop bat which weighs approximately 2kg. Mr Shack is able to work within his demonstrated capacities in this role of lifting and carrying bilaterally up to 5 kilograms and 2.5 kilograms with the left and right hands. In this role, Mr Shack is able to avoid reaching above shoulder height with the left arm and strenuous or highly repetitive, fast-paced activities with the left arm. There is opportunity to vary posture between sitting and standing and to take short, intermittent rest breaks. Mr Shack is competitive in this role as he has effective communication skills as demonstrated by his ability to communicate during the vocational interview and his previous experience as a Truck Driver including delivery and pick up of items, training new drivers and also when working as a spray painter. He has a current NSW Class MC Driver's License and knowledge of the NSW road rules and road and traffic safety."

1. In respect of the sales assistant role, it was noted:

"There are sedentary to light roles in this occupation within Mr Shack's demonstrated capacities of lifting and carrying bilaterally up to 5 kilograms. In this role, Mr Shack is able to avoid reaching above shoulder height with the left arm and strenuous or highly repetitive, fast-paced activities with the left arm. There is opportunity to vary posture between sitting and standing and to take short, intermittent rest breaks. Mr Shack is competitive in this role as he has good communication skills as demonstrated in the vocational interview and through his ability to communicate with others in his previous roles as a Truck Driver which involved training new drivers and working within a team of up to 50 staff. He has demonstrated customer service skills as shown in his previous experience in picking up and delivering items to others and as a spray painter. Mr Shack has demonstrated the ability to learn to use a POS machine as evidenced by his skills in using a smart phone and to undertake online learning modules as well as the aptitude to obtain various licenses such as MC and Forklift."

1. General practitioner, Dr Eleanor McLeod from Junction Street Family Practice, prepared a report for the applicant's solicitor dated 14 April 2025.
2. Dr McLeod noted that the applicant's injury had been treated with rest, NSAIDs, physiotherapy and regular review. Ultrasound investigations had revealed early evidence of left glenohumeral osteoarthritis, subacromial bursal thickening and insertional tears in the subscapularis tendon. The applicant had shoulder pain, limited range of movement and limited lifting capacity.
3. Dr McLeod suggested that the applicant's condition should improve with physiotherapy, and no joint replacement was required at the present time. Dr McLeod said the injury may never fully resolve and would likely be exacerbated by heavy lifting or a return to pre-injury duties.
4. Asked to comment on the CAS report, Dr McLeod said she agreed that the applicant could perform sedentary to light levels of work. The applicant was unable to perform his pre-existing duties but had capacity to work a different job as listed in the assessment.

1. The applicant relies on a Medico-legal Functional Assessment Report, dated 7 March 2025, prepared by occupational therapist Ms Jessica Moretti.
2. Ms Moretti reported that the applicant was a 62-year-old male who had resigned from pre-injury employment because of persistent pain in his left shoulder and an incapacity to continue with his pre-injury duties.
3. Ms Moretti observed that an Earning Capacity Assessment was completed on 5 June 2023 for the insurer which identified vocational goals being, including Delivery Driver (Light), School Crossing Guard and Sales Assistant.
4. Ms Moretti said that based on her assessment of the applicant on 12 February 2025, he had the physical capacity to work in employment that fell under sedentary categories of work for four hours, five days per week. However, Ms Moretti assessed that the vocational goals of Delivery Driver (Light), School Crossing Supervisor and Sales Assistant were not physically suitable or in line with the conclusions of her assessment.
5. Ms Moretti assessed that the applicant would be required to avoid activities that required repetitive or sustained reaching with the left upper limb. The applicant could not perform tasks that would require bilateral above shoulder reaching due to limitations with left shoulder range of movement and had limited capacity for above shoulder reaching with the right upper limb.
6. With regard to the role of Delivery Driver, Ms Moretti said:

"The role of a delivery would realistically require the worker to perform repetitive forward and above shoulder reaching both unilaterally and bilaterally to pack the vehicle and then retrieve items throughout the day as delivered.... Mr Shack is to avoid repetitive activities with the left arm, and I note in my assessment, specifically in forward and above shoulder reaching positions. The role of Delivery Driver (light products) is therefore not physically appropriate for Mr Shack."

1. With regard to the role of School Crossing Supervisor, Ms Moretti commented that the Job Demand Analysis of this role on Transport NSW's website, shoulder and above shoulder manual handling was assessed as being up to an occasional demand of 5kg which exceeded the applicant's assessed functional capacity.
2. With regard to the role of Sales Assistant, Ms Moretti commented that it would be unsuitable due to the requirement to move and unload stock, place stock on shelves, move stock around stores and assist customers to retrieve items. A sales assistant would realistically be required to undertake sustained or repetitive forward reaching as well as above shoulder reaching in order to undertake those tasks as well as undertake point-of-sale tasks. This was said to be inconsistent with the applicant limited capacity for forward reaching with the left upper limb and above shoulder work.
3. Ms Moretti commented generally that it would be impractical to expect a worker to use one arm for the entirety of their work shift as this would place the applicant at risk of an overuse injury.
4. The appendix to Ms Moretti's report defined sedentary work as:

"Sedentary Work - Exerting up to 4.5 kg (10 pounds) of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met."

1. The applicant also relies on a Medico-legal Vocational Assessment Report, dated

7 March 2025, prepared by rehabilitation counsellor, Mr Dominic Manca. 2. Mr Manca also concluded that the roles of Delivery Driver, Sales Assistant or School Crossing Supervisor did not meet the definition of suitable employment having regard to the applicant's age, education, experience, residual skills, the nature of his incapacity, and his receipt of rehabilitation assistance and return to work support. 3. Mr Manca commented:

"Mr Shack holds a semi-skilled blue-collar employment background in truck driving, construction and machine operation. His personal attributes match these work environments, and he is unsuited in alternate jobs or workplaces.

Based on real-world labour market expectations, he does not in my opinion present as an individual skilled or suited to selling products or services, providing customer service, working with children, handling complaints, listening patiently, adapting to change, or resolving disputes."

1. For these reasons, Mr Manca considered that the applicant was not suited to sales assistant jobs or delivery driver jobs due to the customer focus duties. The applicant was also not suited to school crossing jobs due to reduced interpersonal conflict resolution skills.

"Owing to the above limitations, his specialised semi-skilled "blue-collar" work experience and personal attributes unsuited to social task, your client is in my opinion, not suited to open employment."

1. The respondent relies on an updated functional assessment report by Ms Priscilla Lim and a vocational assessment report prepared by Ms Ramisa Khan for Kairros, dated 6 June and

12 June 2025 respectively. 2. At the time of the Kairros reports, the applicant was 63 years old. The applicant's activities included occasional home exercise and walking on the beach. The applicant drove about one hour from his residence to the Wollongong office. The applicant was able to grocery shop alone but was not able to lift heavy objects. The applicant did most carrying with his right arm. The applicant was taking medication three out of seven days for pain relief. 3. The Kairros reports concluded that the applicant was capable of sustaining sedentary work for an eight-hour day. 4. It was noted that if the applicant was successful in securing employment, a graded return to work plan would be beneficial. Modification of work and life tasks to reduce shoulder range of motion, maintained below shoulder height, would be appropriate. 5. The vocational assessment report assessed that the role of School Crossing Supervisor would be unsuitable because the applicant was suitable for sedentary roles only. It was also noted that this role was only available for 10 hours per week. 6. The role of Sales Assistant was also considered unsuitable on the basis that the applicant was suitable for sedentary roles only. It was noted that the applicant did not have experience in customer service roles. 7. Asked about the return-to-work prognosis, Ms Khan commented:

"Given Mr Shack's age, limited functional capacity and low technical skills and self-reported slow learning ability, his return-to-work prognosis is poor. Mr Shack is restricted to sedentary duties as per the recent functional assessment which narrow the scope for available roles. Most sedentary roles require basic computer or administrative skills. Mr Shack's pre-injury role and his work history was predominantly physical in nature and involved minimal technological use. Transitioning into a sedentary role such as office or customer service role would require new skill development in areas he is unfamiliar with. Mr Shack is nearing retirement age which may limit his opportunities and motivation to pursue retraining. Additionally, Mr Shack reported being a slow learner for computer skills which would make retraining and upskilling more time consuming and may affect confidence. Additionally, Mr Shack is unfamiliar with jobseeking in industries outside of his pre-injury industry and would require assistance to identify and apply for relevant roles."

1. Ms Khan's report considered a range of vocational options which were discussed with the applicant but determined to be unsuitable. With regard to the role of companion driver or passenger driver, Ms Khan stated:

"Mr Shack advised that he has experience providing social and companionship to his friends who are immobile or going through severe health complications. Mr Shack also has experience tending to his parents. This role was considered unsuitable due to the lack of labour market opportunities within 100km of Mr Shack's home suburb. Additionally, Mr Shack has advised that he relies on his right side for driving, and it would not be safe for him to drive passenger vehicles."

1. Ms Khan did consider the applicant would be suitable for the role of Delivery Driver (light items). Ms Khan stated:

"It was identified that Mr Shack would be suitable for roles as a delivery driver (light items). This role has occasional customer engagement (i.e. it can include handing out food to the customer and directing all food related issues to the restaurant). Truck drivers are experts in planning efficient routes, considering traffic, road conditions, and time constraints, which is crucial for food delivery drivers to optimize their routes and maximize deliveries including time management and ability to meet deadlines. Food related roles may require using an app which may be difficult for Mr Shack to learn. However, suitability can be confirmed using a work trial and providing opportunity for Mr Shack to learn given he is now familiar with smartphones. Mr Shack's age and English skills would be suitable for the role."

1. The applicant relies on the medico-legal opinion of orthopaedic surgeon, Dr Eugene Gehr, as set out in his report dated 11 December 2023.
2. Dr Gehr noted that the applicant was born in Sydney and left school at age 16. His occupation had been driving heavy trucks, most recently 80 tonnes, and that was the sort of work he did when this injury occurred. Since the injury, the applicant had worked for about two weeks before resigning.
3. Dr Gehr diagnosed left shoulder pain with markedly reduced range of motion, underlying rotator cuff pathology and osteoarthritis as per ultrasound imaging. One year on from the accident, the applicant remained significantly symptomatic, and the prognosis was poor. There was a distinct chance the applicant would require arthroscopic surgery to the shoulder.
4. Dr Gehr said the applicant had "zero" future capacity for work, stating:

"Given his age, previous work experience, not realistic to consider other occupations."

1. Dr Gehr provided a supplementary report on 25 March 2025, in which he was asked to comment on an Earning Capacity Assessment Report by CAS dated 23 June 2023. Dr Gehr noted:

"I just cannot see how it can be stated that he has upper limb function within normal limits in the manipulation of nuts and bolts and could type on a keyboard with one finger with the right hand. To be able to use nuts and bolts needs proper functioning of both limbs. He certainly does not have that in regard to the left shoulder. Also using a keyboard with one finger, I am not sure what use that would be in the workplace."

1. Dr Gehr stated that the applicant did not have a carrying capacity of 5 kg bilaterally or 2.5 kg with the left hand and right shoulder. His lifting capacity of left upper extremity was 0 to 2 kg. Dr Gehr agreed that the applicant had to avoid above shoulder height activities with the left arm and strenuous and highly repetitive fast-paced activities with the left arm. Dr Gehr concluded:

"Following my further examination today where the history, physical examination findings, and ADLs remain the same I see no reason to change my previous opinion where the client has zero future work capacity."

1. Dr Gehr said that the three roles recommended by CAS were unsuitable without a functioning left arm.

1. The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Stephen Quain, dated 21 April 2023, 7 May 2024 and 1 August 2025.
2. At the time of Dr Quain's first report, the applicant complained of left shoulder pain overhead, pain lying on that side and restricted motion and activities of daily living in the left shoulder. Dr Quain diagnosed osteoarthritis of the left shoulder with some rotator cuff impingement.
3. Dr Quain thought the prognosis was relatively poor and doubted that the applicant would get back to truck driving. Dr Quain expressed the belief that the applicant was unfit for pre-injury duties and said this was likely to be indefinite.
4. Dr Quain commented:

"I believe he is fit purely to drive but not be involved in any heavy loading. I do believe he would manage climbing into the cab of a truck."

1. Dr Quain considered the applicant could perform such work for up to 30 hours per week. The applicant was restricted in lifting and carrying of weights above the bench level greater than 10 kg but was fit to drive.
2. In his second report, Dr Quain noted there had been no improvement in the applicant's left shoulder pain. It was noted:

"In terms of any activities, or employment, he states he has worked unpaid as a "go-for" for his son-in-law who has a building business. This has been for a few hours per week and only occasionally. He states he has no regular exercise. He takes Mobic or Ibuprofen and occasional Panadol."

1. With regard to the applicant's capacity for work, Dr Quain commented:

"I do not believe he will ever be fit to resume work as a heavy truck driver, particularly moving the curtains, as he has outlined, has been extremely heavy and physically demanding. He may be fit for lighter forms of courier or local delivery type work. I believe this would be up to 30 hours a week."

1. Dr Quain reiterated his previous opinion that the applicant could work 30 hours per week with a lifting restriction to no more than 10 kg to table height only.
2. In his final report, Dr Quain noted the applicant had constant pain and restricted motion consistent with developing arthritis in the left shoulder. This appeared to be aggravated by psychological aspects including anxiety and possible depression. The applicant had no recreational activities and coped with assistance from his daughter who lived nearby.
3. Dr Quain considered that the applicant could work up to 30 hours per week with lifting restrictions. Dr Quain noted the Kairros assessment regarding light delivery work and expressed the opinion that the applicant would be fit to do that work but not full-time.

1. The applicant confirmed that liability for the injury to his left shoulder was accepted and his pre-injury average weekly earnings (PIAWE) had been identified as $1,967.98 per week. The applicant had received 22 weeks of weekly compensation pursuant to ss 36 and 37 of the 1987 Act and was eligible for a further 108 weeks of compensation pursuant to s 37.
2. The applicant observed that certificates of capacity had been issued by his general practitioner for the period from 28 September 2022 to 5 April 2023. The certificates of capacity initially certified him as having some capacity for between 18 and 32 hours per week with restrictions, being lifting and carrying less than 10 kg, pushing and pulling less than 10 kg, driving but no loading, avoiding overhead work and avoiding pulling the truck canopy into locked positions. On 27 March 2023, the applicant was certified as having no current work capacity.
3. The applicant conceded that there were no certificates of capacity during the period of weekly compensation claimed.

1. The applicant referred to his statement evidence, noting the difficulties he had whilst performing the alternative duties provided by his employer. The applicant experienced pain every day and had difficulty even putting on a jacket. The applicant could not carry anything heavy with his left arm or complete overhead tasks. His sleep was disturbed. The applicant described the medication he was taking and the difficulties he experienced with activities of daily living. The applicant also responded to the CAS report dated

23 June 2023. 2. The applicant referred to the medical report from Dr McLeod dated 14 April 2025. Dr McLeod reported that she did "not disagree" with the CAS assessment that the applicant "is able to perform sedentary to light levels of work" but he could not perform his pre-injury work duties. 3. The applicant referred to the functional and vocational assessment reports of Mr Manca and Ms Moretti and noted that they considered that the jobs identified by CAS were not suitable. It was noted that the applicant had a semi-skilled blue-collar employment background in truck driving, construction and machine operation. The applicant was unsuited to alternative jobs or workplaces. The applicant did not have the skills to sell products, provide sales services or customer service, work with children, handle complaints, listen patiently or resolve disputes in respect of road safety and traffic tasks. The applicant was an older, long-term unemployed individual and would be at a disadvantage in seeking new work particularly without commercial vocational assistance. 4. The applicant also referred to the medicolegal opinion of Dr Gehr. Dr Gehr reviewed all of the relevant material and concluded that the applicant remained significantly symptomatic.

Dr Gehr considered that the applicant had "zero future capacity for work" and that given his "age, previous work experience", it was "not realistic to consider other occupations". 5. The applicant submitted that the clinical records from the Cambewarra Mountain Health Practice were consistent with the progress of the applicant's injury and his inability to continue to work either as a truck driver or perform the alternative duties provided to him. 6. The applicant noted that the history provided to the respondent's expert, Dr Quain, that he was unable to perform alternative duties provided to him, was unchallenged. Dr Quain found there was no evidence of feigning or exaggeration. He considered that the applicant had an indefinite incapacity to perform his pre-injury work. Dr Quain found that the applicant should not do any work requiring heavy loading and his restrictions included lifting or carrying up to 10 kg. 7. The applicant referred to the report from Ms Lim from Kairros, dated 6 June 2025, and the report of Ms Khan, dated 12 June 2025. The applicant observed that Ms Lim concluded that he could perform sedentary work for eight hours per day. The applicant was fully co-operative and displayed maximum physical effort. Generalised deconditioning of the left upper limb and reduction in grip strength in the left hand were noted. The applicant submitted that Ms Lim's conclusions were aspirational and theoretical and did not represent an accurate depiction of the applicant's capacity in the real world. The applicant's return to work had to be graded and an ergonomic assessment was required to ensure no re-injury. 8. Ms Khan noted that the role of school crossing supervisor was only available for about 10 hours per week. She did not consider the sales assistant position suitable because the applicant was only fit for sedentary roles and did not have customer service skills. Given the applicant's age, functional capacity, low technical skills and self-reported slow learning ability, Ms Khan considered the return-to-work prognosis was poor. 9. Ms Khan noted that the applicant was restricted to sedentary duties, most of which required basic computer skills and office skills which the applicant did not have. The applicant was noted to have worked in predominantly physical roles involving minimal technology. Transitioning into a sedentary role would be unfamiliar. It was also noted that the applicant was nearing retirement age, which would limit his opportunities and motivation to pursue retraining. 10. The applicant observed that Dr Quain considered the applicant was fit for light delivery work and accepted Kairros' conclusions despite noting increasing symptoms at the applicant's left shoulder with constant pain and restricted motion, aggravated by psychological anxiety and possible depression. 11. The applicant submitted that a fair reading of all of the relevant material, may lead to the conclusion that the applicant may have some work capacity. When his skills and experience were scrutinised, however, it was clear that he must be found to have no current work capacity. 12. The medical consensus was that the applicant had restrictions regarding weights, must avoid reaching above head height and was only fit for sedentary duties. Although Dr Quain was of the view that the applicant could drive, the overwhelming evidence was that he could not work as a truck driver in his previous position and could not work as a bus driver or delivery driver. A driving job such as an Uber driver would require the use of both arms for extended periods and was clearly unsuitable. 13. A sales assistant job would require customer service skills which the applicant did not have and would require some lifting and possibly overhead reaching. Ms Khan did not endorse either the school crossing supervisor position or sales assistant position, noting the applicant lacked computer office skills or customer service skills. The applicant submitted that he had no office skills or computer skills sufficient to work in a sedentary position. Any employment would require re-training and this had not been afforded to the applicant. 14. The applicant noted that despite the respondent operating a large delivery service and its obligation to provide suitable work, it had not been able to identify or offer any suitable work to the applicant. 15. The applicant referred to the definition of 'suitable employment' in s 32A of the 1987 Act and the decision in Wollongong Nursing Home Pty Ltd v Dewar[2] and submitted that there was no real job that the applicant was suited for having regard to his age, functional capacity, injury, skills and experience. 16. The applicant submitted that there was no reason to not accept his evidence regarding his injury and capacity. The general consensus was that he was not feigning or exaggerating.

Dr Quain expressed the view that the shoulder was only going to get worse and that the applicant would require a shoulder replacement in the future. 17. The applicant submitted that his evidence and that of Dr Gehr and Mr Manca ought to be preferred to the evidence of the respondent where it differed. The opinion of Ms Khan was said to align to some extent with the evidence of Mr Manca. 18. The applicant submitted that he ought to be paid weekly benefits at the rate of 80% of the PIAWE, as indexed, from 10 January 2025 to date and continuing pursuant to s 37 of the 1987 Act.

1. The respondent submitted that the applicant retained an earning capacity of an amount equal to his PIAWE. Alternately, it was submitted that a finding would be made that the applicant had a residual earning capacity and that there was no basis for a finding of total incapacity.
2. The respondent noted that there were competing medical opinions on capacity and submitted that the Commission ought to place greater weight upon the contemporaneous records, including financial records, which, tended to demonstrate a greater ability to engage in activities than the applicant asserted in his statements.
3. The respondent noted that in her report of 7 March 2025, Ms Moretti found that the applicant had physical capacity to work in employment that fell under the sedentary categories of work for four hours, five days per week. While that did not include a role as a light delivery driver, school crossing supervisor or sales assistant, there was a clear acceptance that the applicant did not suffer from a total incapacity.
4. It was also noted that Dr Gehr obtained a history of the applicant having worked as an unpaid "go-for" for his son-in-law in a building business although it reportedly was only for a few hours per week occasionally.
5. The applicant's own treating doctor, Dr McLeod agreed he was able to perform sedentary to light levels of work.
6. The clinical notes of the applicant's general practitioners did not post-date 9 January 2023 but by 9 January 2023, the treating general practitioner, Dr Kdade, was of the opinion at that point that the applicant was fit for pre-injury duties.
7. The respondent observed that no contemporaneous general practitioner's notes relating to the period in which compensation claimed were before the Commission, despite directions for their production. It could be inferred that there were no contemporaneous relevant treating records supporting the applicant's claim in the relevant period.
8. The respondent noted that, in April 2023, Dr Quain believed that the applicant was fit to drive but not to perform heavy loading. At that time, it was considered the applicant could work up to 30 hours per week with lifting restrictions.
9. In May 2024, Dr Quain found that the applicant continued to be fit for lighter forms of courier or local delivery driver work up to 30 hours per week. In his most recent report, Dr Quain essentially maintained his opinion as to the applicant's capacity in that the applicant would be fit for work up to 30 hours per week with some restrictions as to lifting as outlined in his earlier reports.
10. Dr Quain's reports were described as balanced and the respondent submitted that weight would be placed upon them.
11. The respondent observed that the Earning Capacity Assessment, dated 23 June 2023, found restrictions with respect to prolonged sitting or lifting, but ultimately assessed the applicant as fit for sedentary to light levels of work.
12. The respondent submitted that the preponderance of the medical evidence was not supportive of complete incapacity.
13. The respondent referred to the applicant's bank statements and financial records and submitted that it was apparent that the applicant regularly travelled from his place of residence in the Bomaderry region to Warwick in Queensland, usually in the course of one day. The respondent submitted that this was a long journey approaching 1,000km which, would take no less than 10 to 12 hours of constant driving. The ability to complete these trips was inconsistent with the applicant being unable to engage in any form of remunerative employment even on a part-time basis and demonstrative of an ability to travel long distances by road. The respondent noted that this regular, long-distance travel was not disclosed to the practitioners who had provided reports on the applicant's capacity.
14. The respondent submitted that the Kairros report proposed light courier driving. Based upon the demonstrated ability to travel long distances, the respondent submitted that the applicant retained some capacity, for example, to perform Uber driving, which would accommodate his lifting restrictions.
15. Having regard to the totality of the evidence, the respondent submitted that whilst the applicant did have some restrictions arising from his shoulder injury, they did not render him totally incapacitated for any form of work. The applicant's assertion that he could not work as an Uber driver because of the requirement to drive for long periods was not sustainable having regard to the evidence of long journeys.
16. At best, the applicant suffered from a partial incapacity, consistent with the opinions expressed by the various medical practitioners. Dr Quain's opinion that the applicant had a reduction of capacity of approximately one quarter, and a residual capacity of approximately three quarters of his PIAWE, or in round terms, a residual capacity of $1,500 per week, would be accepted.

1. The applicant submitted that whilst the medical consensus was that he may have some capacity in terms of his physical injury and consequent disabilities, when all of the evidence was evaluated and scrutinised, there was no real job that he was suited for having regard to his age, functional capacity, injury, skills and experience.
2. The respondent noted that in his statement of 19 January 2025, he explained that when undertaking any significant travel, he took lots of breaks from driving. The ability to take rest breaks whenever he wished was not something that would be available in any income producing job.
3. The ability to sit, either driving or as a passenger, alternating between the two with breaks, on a road trip could not translate to the capacity to carry out any of the jobs identified by CAS or any other job. The applicant had limited transferable skills. The task of the Commission was to identify whether there were any "real jobs" which the applicant could realistically do.
4. The applicant submitted that Mr Manca had addressed the CAS report in detail and his opinion ought to be preferred.

1. Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
2. The applicant in this case has been paid weekly compensation for 22 weeks between

5 October 2022 and 17 April 2023. 3. After 13 weeks, s 37 of the 1987 Act provides:

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

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

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

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

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

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

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

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

1. Section 37 of the 1987 Act requires consideration of whether the applicant had at all relevant times, "no current work capacity" or "current work capacity". Those expressions are relevantly defined in item 9 of Schedule 3 to the 1987 Act as follows:

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

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

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

1. The expression "suitable employment" is defined in s 32A of the 1987 Act as:

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

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

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

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

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

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

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

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

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

1. In Wollongong Nursing Home Pty Ltd v Dewar[3] Roche DP commented on this definition:

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

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

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

1. It is the applicant who bears the onus of establishing, on the balance of probabilities, that he is entitled to weekly compensation in the period claimed.
2. There is no dispute that, as a result of the injury to his left shoulder, the applicant is unable to return to his pre-injury work of truck driving. The question in these proceedings is whether the applicant is able to return to work in "suitable employment".
3. The applicant is a 63-year-old man, who left school at age 16 and has only ever performed physical work, predominantly involving truck driving.
4. The evidence before the Commission confirms that the applicant's left shoulder remains symptomatic. Physiotherapy and cortisone injections have been attempted previously, without lasting benefit. The applicant has continued to manage his symptoms conservatively through medication, ice and heat packs, massage and self-directed exercises.
5. The applicant described ongoing symptoms of pain and restriction of movement in his statement evidence. The applicant said his symptoms prevented him from carrying or lifting heavy objects, performing overhead tasks, disturbed his sleep and limited his ability to perform activities of daily living including dressing, cleaning, cooking and mowing.
6. These symptoms and restrictions were reported in a consistent manner to the medicolegal experts involved in this case.
7. Dr Gehr said the applicant remained significantly symptomatic with left shoulder pain and a markedly reduced range of motion. Dr Gehr said the applicant's lifting capacity at the left arm was 0-2kg and agreed that the applicant had to avoid above shoulder height activities and highly repetitive or fast paced activities with the left arm. Dr Gehr formed the view that the applicant had zero work capacity in the absence of a functioning left arm.
8. Dr Quain also noted that the applicant complained of pain overhead and lying on his side and had restrictions in movement and performing daily activities. Dr Quain agreed the prognosis was poor but said the applicant could drive and was restricted in carrying weights above bench level greater than 10kg. Dr Quain considered the applicant could perform driving work, avoiding any heavy loading, for 30 hours per week.
9. It is noted that the nature of the restrictions found by Dr Quain differed somewhat from the other evidence. The CAS report noted the applicant reported sitting, standing and walking limits and a driving limit of 30 minutes at a time and travelling up to two hours. The applicant was observed to lift 5kg bilaterally from floor to waist height and to carry 5kg bilaterally. He carried 2.5kg with his left arm and 5kg with his right arm.
10. The functional assessments performed by Ms Moretti and Ms Lim both considered the applicant was only fit to perform sedentary work. Sedentary work was defined in the functional assessments as involving walking and standing only occasionally, a negligible amount of force frequently and "occasional" exertion of up to 4.5kg of force when lifting, carrying or moving objects.
11. Given the consistency of opinion between Ms Moretti and Ms Lim, I accept that the applicant has a capacity to perform sedentary work.
12. The parties take different views as to whether there are any "real jobs" for which the applicant is suited with this restriction in mind.
13. The CAS report identified three potentially suitable roles, but it has been agreed by

Ms Moretti, Mr Manca and Ms Khan that the roles of school crossing supervisor and sales assistant would not fall within the category of "sedentary work". 14. Ms Moretti commented that a deliver driver role would realistically require repetitive forward and above shoulder reaching, both unilaterally and bilaterally, to pack the vehicle and then retrieve items throughout the day as delivered. Mr Manca also considered the customer focused aspects of that job would be unsuitable having regard to the applicant's semi-skilled blue-collar background in truck driving and personal attributes. 15. Ms Khan differed in her opinion with regard to the suitability of the role of delivery driver (light products). Ms Khan noted that a food delivery driver had only occasional customer engagement. Ms Khan considered the applicant's skills in planning efficient routes, considering traffic, road conditions and time constraints were transferrable to the role. 16. Comparing the reports, I do not agree that food delivery driving would involving repetitive forward and above shoulder reaching to pack and unpack a vehicle. The demands of the role, in terms of lifting and carrying of objects would seem consistent with the definition of sedentary work and the applicant's own reporting of an ability to drive longer distances and do his own shopping. I accept there would have been a degree of interpersonal interaction and customer focus associated with the applicant's pre-injury duties as a truck driver. I do not accept that the social demands of a deliver driver (light products) role would be unsuitable for the applicant having regard to his skills and experience. 17. Ms Khan, did, however, noted that food related roles may require using an app which would be difficult for the applicant to learn despite being familiar with smartphones. Ms Khan suggested that this could be confirmed through a work trial. In my view, Ms Khan's endorsement of this role was conditional. 18. Ms Khan also noted that the applicant had low technical skills and a self-reported slow learning ability, particularly for computer skills. It was noted that the applicant's pre-injury duties involved minimal technology use. Ms Khan observed generally that transitioning into a sedentary role would require new skill development in areas the applicant is unfamiliar with. 19. Ms Khan also considered whether the role of a passenger driver or companion driver would be suitable but dismissed this, amongst other reasons, because the applicant advised that he relied on his right side for driving, and it would not be safe for him to drive passenger vehicles. 20. A similar observation was made by Dr Gehr who felt that without a functioning left arm, none of the roles identified by CAS, including delivery driver (light) would be suitable. 21. The respondent's submissions pointed to evidence of the applicant travelling long distances between his home in Bomaderry to Queensland in support of its submission that the applicant could perform driving work such as Uber driving. 22. The applicant conceded that he enjoyed driving, and the evidence is generally consistent with the applicant continuing to drive notwithstanding his left shoulder injury. Driving for leisure or to carry out activities of daily living can, however, be distinguished from driving for occupational purposes. 23. Leaving to one side the safety considerations associated with driving with one arm and the technological demands associated with Uber or food delivery driving, I accept that there would be more limited opportunities to take breaks and rest as required in these roles. I accept that driving a long distance over the course of a single day, with breaks, cannot necessarily be equated with regular driving, for sustained periods, without the opportunity to rest as required. Similarly while there is evidence that the applicant has intermittently performed unpaid "go to" work for his son-in-law, I am not satisfied that there are any real jobs of this nature for which the applicant is suited over a sustained period. 24. After carefully considering the evidence and submissions, I prefer the views of Dr Gehr and Mr Manca. I am satisfied that there are no real jobs in employment for which the applicant is currently suited. I find that that at all relevant times the applicant has had no current work capacity. 25. The applicant is entitled to an award for weekly compensation at the rate of 80% of the PIAWE as periodically indexed, from 10 January 2025 to date and continuing, in accordance with s 37(1) of the 1987 Act.

[1] There are also references in the Application to Resolve a Dispute and elsewhere to a date of injury of "15 September 2022". For consistency I have adopted "13 September 2022" in this decision.

[2] [2014] NSWWCCPD 55.

[3] [2014] NSWWCCPD 55.