CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Tololeski v Traffic Management Services (Aust) Pty Ltd [2024] NSWPIC 263	
		
APPLICANT:	Ilce Tololeski	
		
RESPONDENT:	Traffic Management Services (Aust.) Pty Ltd	
		
Member:	Lea Drake	
		
DATE OF DECISION:	21 May 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - The applicant sought a finding of total incapacity following an injury in 2019 and a reoccurrence following a return to work in 2021; the respondent relied on finding of fitness from the applicant’s general practitioner and a rehabilitation provider; that evidence was not rejected; Held – finding of total incapacity made.
 	
determinations made:	The Commission determines:
1.	The applicant is totally incapacitated for work as a result of an injury sustained on 26 November 2019 and a reoccurrence on 12 December in the employment of the respondent.
The Commission orders:
2.	The parties will confer and provide agreed draft orders for the consideration of the Commission within seven days.

STATEMENT OF REASONS
BACKGROUND
1.	Mr Ilce Tololeski (the applicant) was employed by Traffic Management Services (Aust) Pty Ltd (the respondent) as a traffic controller.
2.	The applicant suffered a back injury, a left-sided disc protrusion, at work with the respondent on 26 November 2019. Eventually his symptoms resolved and he returned to work.
3.	The applicant continued to work until 12 December 2021 when he suffered a re-occurrence of his previous injury at work. On this occasion the protrusion was right-sided.
4.	Liability was initially denied but was accepted following an examination with Independent Medical Assessor (IMA) Dr Sheehy who provided a report dated 2 May 2022. 
5.	Compensation was paid until 2 November 2022 when the respondent determined the applicant was fit for full time work On the report of the applicant’s general practitioner and the respondent’s rehabilitation provider.
6.	Compensation is claimed from 2 November 2022 until 23 April 2024.
MATTERS IN DISPUTE
7.	The applicant’s capacity for work is in dispute.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION 
8.	Mr Luke Morgan of counsel, instructed by instructed by Mr Bechara of Gerard Malouf and Partners, appeared for the applicant. Ms Lyn Goodwin of counsel, instructed by Ms Alexandra McCaffrey of Rankin Ellison Lawyers appeared for the respondent.
9.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 
EVIDENCE
10.	There was no oral evidence.
11.	There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any dispute before Personal Injury Commission (Commission). 
12.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application to Resolve a Dispute (ARD) and attached documents; 
(b)	Reply to ARD (Reply) and attached documents, and
(c)	Application to Admit Late Documents and attachments dated 24 April 2024.
The applicant’s evidence
13.	The applicant’s evidence regarding his past symptoms and incapacity is in his statement dated 8 April 2022 and extracted below:
“30. 	As a result of the above injuries, I following disabilities:–
a. 	Chronic and ongoing pain in lower back;
b. 	Radical pain down right leg;
c. 	Shooting pain in right leg;
d. 	Numbness in right leg;
e. 	Discomfort in left leg;
f. 	Difficulty with walking for prolonged periods;
g. 	Difficulties with sitting for prolonged periods;
h. 	Unable to quickly manoeuvre;
i. 	Restrictions in mobility;
j. 	Lower back stiffness;
k. 	Lower back numbness;
l. 	Difficulties with domestic duties and chores;
m.	Unable to perform domestic tasks such as lawn maintenance and gardening;
n. 	Struggling to undertake everyday duties;
o. 	Difficulties with caring for my family and children;
p. 	Unable to drive due to pain down right leg;
q. 	Requiring assistance with my abilities and other daily living tasks;
r. 	Depressive mood;
s. 	Emotional turmoil;
t. 	Low mood;
u. 	Anxiety;
v. 	Frustration;
w. 	Sadness;
x. 	Loss of pre-injury recreational life;
y. 	Loss of pre-injury social life;
z. 	Loss of enjoyment in life.”
14.	The applicant’s statement of 19 January 2024 provides the following updated evidence.
“WORK CAPACITY DECISION:
2. 	Following my injury, I tried to return to work. I would take shorter shifts and would predominantly use my left hand to avoid placing a lot of pressure on the right.
3. 	On 4 September 2021, as the pain in my back aggravated, I stopped working. On or around June/July 2022, I was terminated.
4. 	The insurer issued a section 78 noticed on 22 June 2022 stating that I have capacity to work 8 hours, 5 days a week. This was based on a report provided by Dr Cuthill. However, the certificates of capacity that were issued to me stated that my capacity was zero hours.
5. 	The section 78 issued on 22 June 2022 listed 'retail assistant' as being suitable employment for me. I haven't worked as a retail assistant in the past 20 years and would not know how or where to start.
6. 	I have neither the qualification nor the skill and recent relevant experience to work as a retail assistant.
CONTINUING IMPAIRMENTS
7. 	The pain from my lower back radiates towards my right leg and causes numbness. The pain in my back and legs is extremely worse in the mornings.
8. 	The ongoing pain in my leg also makes it difficult for me to drive for long periods of time.
9. 	As a result of my ongoing pain, I struggle to complete activities in my daily life including picking up things from the floor, mowing the grass.
10. 	I struggle to sit and stand for long periods of time without experiencing excruciating pain. I believe this further makes it difficult for me to work as a retail assistant as it requires workers to be constantly sitting/standing.
11. 	I am unable to lift up my children and play with them.
12. 	My wife has had to take up a lot of the responsibility following my injury including working more hours to support us financially and completing a lot of the house chores that I usually completed.”
The respondent’s evidence
15.	The respondent relies on the report of Dr Sheehy of 2 May 2022, the report of Dr Ho dated 20 April 2022, the responses of Dr Cuthill, general practitioner provided in response to a vocational questionnaire provided by the respondent’s rehabilitation provider, the clinical notes of Dr Cuthill and the notes of the exercise physiologist provided by the respondent. 
SUBMISSIONS
The applicant’s submissions
16.	The applicant’s counsel submitted that the response of Dr Cuthill to the vocational questionnaire, which is relied upon by the respondent, is a tick a box exercise and the role proposed by the rehabilitation provider is fanciful and unrealistic.
17.	Counsel submitted that Dr Cuthill’s opinions were internally inconsistent and therefore unreliable. On 11 December 2023 Dr Cuthill found the applicant had the physical detriments outlined in bold below and then, despite those restrictions and difficulties, immediately concluded that the applicant had the capacity to work as a retail assistant.
18.	Counsel submitted that it would be entirely unlikely that any employer in the retail sector would be likely to employ an assistant with the disabilities outlined in bold below.
“On reopening the claim in 18/5/23 I noted:
‘currently - sciatic right sided pain after 10 mins of activity, tearing sensation right lateral calf.
Not doing any housework. Unable to mow lawns.
Walking for < 10mins then needing to stop
Not driving > 2-3km’
This would indicate that he would have been unable to perform normal hours doing work that required standing for any significant length of time.
Do you consider our client is fit to work as a retail assistant as claimed by the insurer ?
Please provide clinical reasoning in support of your answer.
• 	At present llce has the capacity to work as a retail assistant. In June 2022 this would not have been the case for the reasons outlined above.”
The respondent’s submissions
19.	It was the respondent’s submission that the applicant has made a good recovery from his injury. It relies upon the response provided by Dr Cuthill, the applicant’s general practitioner, in which he provided answers to questions put by the insurer. The questionnaire outlined the duties involved in three proposed occupations with the capacity for those roles set out in detail opposite the duties. The doctor was obliged to tick yes or no to those proposed roles. The doctor ticked yes to all three positions indicating that the aim was to return the applicant to preinjury duties. He indicated optimistically that it would be six to eight weeks with physiotherapy to achieve performance of these roles or three to six months with surgery.
20.	The respondent presses for the Commission to find that the applicant has a capacity for retail employment as described below by the rehabilitation provider:
“7. 	Typically a light to medium work demand level.
8. 	Frequently stands at sales counters or walks about the workspace assisting customers, locating merchandise, shelving product or setting up shop displays.
9. 	Manually or electronically enters customer purchases into the till, receives cash, cheques, eftpos and credit card payments and processes these and issues receipts. May issue customers sales invoices.
10.	Lifts and passes items purchased across the scanner (where used) and may need to wrap or pack goods.
11. 	Stretching and/or twisting movements are likely to be required occasionally when reaching up or down to shelves for merchandise.
12. 	Bending, squatting or crouching movements may be required when demonstrating a product's use, picking items up or stocking shelves.
13. 	Lifting, pulling or carrying requirements will be occasional and generally of a light to medium demand level for most sales of these types of products.
14. 	Repetitive hand and finger movements are necessary when operating electronic tills, computers and pricing guns.
15. 	Driving is not likely to be required.
16. 	Use of office hand-held equipment such as pens or calculators will be occasional.”
21.	The respondent also relies upon the report of Dr Sheehy of 2 May 2022 outlining the applicant’s prospects of recovery. Dr Sheehy stated:
“8. 	Please provide your opinion/comment on what current treatment is reasonably necessary in relation to llce's condition.
It is concerning that there is weakness in his foot on the right, however, he is quite sure that this is improving, and in such circumstances, it would be reasonable to pursue a conservative management programme with the return to physiotherapy and consideration of right-sided peri-radicular nerve injections. It would be important over the coming weeks, however, that his motor deficit improves as the pain resolves. In such circumstances, an ongoing conservative management programme would be appropriate. If over the next 4-6 weeks there is no significant improvement, he needs to be assessed by a neurosurgeon with regards to a nerve root decompression on the right side.
9. 	Based on your examination of llce and review of attached documentation, please provide your clinical assessment of llce's fitness for work, including hours, capabilities and restrictions.
He is presently unfit for work which involves bending, lifting, or twisting and will remain so for a minimum of two months.” 
22.	The respondent submits that if the applicant continued to improve after seeing Dr Sheehy then restrictions to his capacity would “fall away”. It relies extensively on reports of the exercise physiologist which demonstrate a committed attitude by the applicant to exercise programs and the notes taken by the rehabilitation consultant conjunction with consultations with Dr Cuthill.
23.	The respondent relies on the report of Dr Ho dated 20 April 2022 as support for the proposition that if the applicant has shown significant improvement with conservative medical treatment he is fit for the work as a retail assistant. Dr Ho stated:
“If the Applicant is unable to resume normal duties, your opinion as to what duties the Applicant may ultimately resume and when it might be expected that the Applicant would be fit for such duties, noting any restrictions as to hours of work and/or duties the Applicant can perform.
His walking tolerance is so short and even sitting is only half an hour, no way he can return to any kind of restricted duties unless he shows significant improvement with medical treatment.”
24.	The respondent submits that Dr Cuthill, the applicant’s general practitioner, in his response to the respondent’s rehabilitation practitioner, supports a finding that the applicant is fit for work as a retail assistant.

CONSIDERATION
25.	I am not persuaded by the respondent’s submissions. 
26.	The respondent’s submissions regarding significant medical improvement with conservative treatment do not take sufficient regard of the fact that the applicant has a very serious underlying condition involving a very large disc protrusion. In the past this has resulted in left-sided symptoms and then, after a period of return to work, right-sided symptoms. The underlying condition has not disappeared. 
27.	In a report dated 9 January 2020 Dr Peter Moloney neurologist provided the following opinion.
“Examination of his MRI scan shows that he has a very large disc protrusion at L4/5 on the left which would be causing irritation to the transiting LS and possibly also the intradural 51 nerve root.
I do not believe that this is going to settle with the conservative modalities of treatment and I have recommended to Mr Tololeski that he undergo surgical intervention in the form of an L4/5 fenestration for partial discectomy and decompression of the LS nerve root and the spinal theca.
He will think about this advice and get back in touch with my office if he wishes to proceed.”
28.	Dr Sheehy’s prognosis for the applicant’s improvement was based on the applicant’s own optimistic assessment that his symptoms in the right foot were improving. This is despite the weakness in the right foot noted by the doctor. The applicant has a serious injury. His symptoms have not disappeared. Dr Sheehy concluded that if there was no significant improvement the applicant needed to be assessed by a neurosurgeon for a nerve root decompression on the right side. The credibility of the applicant’s evidence regarding his continuing disabilities and capacity for work should not be diminished by his continued optimistic attempts to pursue effective conservative treatment.
29.	Dr Ho provided the following in answer to questions by the respondent.
“5. 	The nature and extent of any present and/or continuing disabilities.
Mr Tololeski is suffering from right sciatica with a big prolapsed disc of L4/5 level.
6. 	Your opinion as to whether the Applicant ought to be able to resume their pre-accident occupation.
I do not think he can return to pre-accident occupation. I believe he was lucky to get the problem resolved the last time all by conservative treatment but this time the prolapsed disc seems to be even bigger in size, so unless he gets good progress with medical treatments otherwise he cannot resume the pre-injury duties.
7. 	If the Applicant is unable to resume normal duties, your opinion as to when the Applicant would be fit for such duties.
The progress of two-and-a-half years ago was about seven months of conservative treatments before he can return to pre-injury duties. Hopefully we will see similar response but if the response is not good then he may have to consider surgical intervention.”
30.	Dr Porteus provided the following opinion in his report dated 18 November 2022 as to the applicant’s fitness for work as a retail assistant:
“Do you consider he is fit to work as a:
a. 	Road Traffic Controller
b. 	Forklift Operator
c. 	Retail Assistant
He has very high levels of pain with frequent flare ups. This occurs easily. In my opinion, he is restricted from physical work. He is also restricted from whole body vibration that occurs with driving commercial vehicles such as forklift. In my opinion, he is restricted from constant sustained walking and standing which is required as a retail assistant. Work as a road traffic controller and retail assistant often can involve heavy lifting with frequent bending.
In my opinion, all of these jobs involve activities he is permanently restricted from and, in my opinion, he is incapacitated from work as a road traffic controller, forklift operator and retail assistant and will likely be so in the long term.”
(my emphasis)
31.	I accept the applicant’s evidence regarding his current disabilities and resultant work capacity. I find that he has not experienced sufficiently significant improvement with medical treatment.
32.	The applicant has had a positive attitude and has attempted extensive programs to assist his improvement including sessions with exercise physiologists. However, he has not had the improvement he hoped for even though he has experienced periods of time with reduced symptoms.
33.	I regret to say I agree with the applicant’s counsel’s assessment of Dr Cuthill’s response to the vocational questionnaire. His minimalist comments at the conclusion of the questionnaire do not move it beyond the superficial and sparce attention of a tick a box response.
34.	Any careful and realistic perusal of the description of duties provided by the rehabilitation provider demonstrates that the physical role anticipated would be no less likely to injure the applicant than his previous work and are beyond his current capacity. His educational background would not make him fit for purpose in this role and the particular employers (Smiggle and Sanity) who were approached are hardly suitable for a man of his age, physical condition and educational background. 
35.	The respondent’s counsel submitted that to find for the applicant the Commission would have to reject the evidence of Dr Cuthill and the combined opinions of the exercise physiologist and rehabilitation provider. I do so.
36.	Dr Cuthill, on whom the respondent relies to establish capacity for work, made findings demonstrating a serious restriction and capacity for work on 18 May 2023. Those findings are inconsistent cannot sit with his opinion as to the applicant’s ability to return to full duties as a retail assistant.
37.	The applicant’s counsel referred to the fact that the applicant’s treating general practitioner Dr Cuthill was employed by the same organisation as the rehabilitation provider. I make no finding adverse or otherwise regarding the relationship. However, I note that the existence of a relationship of that kind can give rise to doubts regarding independence.
38.	The possibility of the applicant having intermittent symptoms was contemplated by his treaters and he was in fact provided with strategies to deal with anticipated flareups of his condition. I am satisfied that his incapacity continues despite his best efforts at cooperation and hard work with the exercise physiologist.
39.	When considering the applicant’s capacity for work I have considered real, not fanciful, employment. I have applied s 32A. I have taken into account the applicant’s history of applying himself and endeavouring to return to work; the medical evidence tendered before the Commission; the role of a retail assistant pressed by the respondent as suitable work for the applicant in the Work Capacity Assessment, as well as the applicant’s age, education, skills and previous work experience. 
40.	I am satisfied and find that the applicant could not perform work in retail on any basis. I agree with the applicant’s counsel’s submission that the respondent’s submissions in this regard are fanciful and not supported by credible medical evidence.
41.	I find that the applicant is totally unfit for work.
42.	The applicants pre-injury average weekly earnings was $1,000 per week. 
SUMMARY
43.	For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.