Reported Decision : (2002) 23 NSWCCR 327 Compensation Court of New South Wales CITATION : Puzyrewski v Zumtobel Staff and Ors [2002] NSWCC 17 PARTIES : Barbara Puzyrewski Zumtobel Staff (Australia) Pty Limited MATTER NUMBER(S) : 7938 of 1993 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 14 March 2002 DATE OF JUDGMENT: 03/14/2002 FOR APPLICANT:Mr D Dickerson instructed by Griffiths Tierney. LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr R Stanton instructed by Vandervords. JUDGMENT: 1. Before me is a summons by the claimant, Barbara Helena Puzyrewski, against the opponent, Zumtobel Staff (Australia) Pty Limited, seeking that the respondent pay arrears of weekly compensation to the applicant pursuant to an award of Judge Neilson of this Court from 10 November 2000 together with interest on these arrears and s 60 expenses occurring after 29 September 2000. A costs order is also sought. Consolidated with the summons by my previous order is an application by Ms Puzyrewski, whom to avoid confusion I shall hereafter call "the worker", for increase in her weekly payments of compensation awarded to her by the abovementioned award of Judge Neilson, which was in matter No 7938 of 1993. Similarly consolidated with the present matter is an application for diminution or termination of the weekly payments of compensation ordered by Judge Neilson's award filed by the opponent in the summons, Zumtobel Staff (Australia) Pty Limited, to whom I shall refer hereafter as "the employer". It was agreed by counsel for the worker and the employer that the summons and the two applications just mentioned should be heard together. 2. I am grateful to counsel for their comprehensive addresses today, which have clarified the issues and enabled me to give an ex tempore judgment in an otherwise difficult case. 3. The award of Judge Neilson was given by judgment on 24 August 1994 and it is sufficient to say that it contains a continuing award of weekly payments under s 40 of the Workers Compensation Act 1987 ("the Act") of $81.15 per week from 19 June 1993 to date and continuing, and that a s 66 lump sum was awarded on the basis of 15 per cent permanent loss of use of the right arm at or above the elbow and a s 67 lump sum was also awarded in the sum of $10,000, and that an order that continuing s 60 expenses be paid was also made. Some consequential orders in relation to costs and interest were made which need not detain me. I should add that in relation to the claim for interest in the summons, I was not addressed by either counsel and I propose therefore to make no order in that regard, but if the worker perceives on advice that she has a right to interest, application can always be made by notice of motion on seven days notice, should agreement not be reached on that subject. 4. The cessation of the weekly payments on the date from which they are claimed on the summons, 10 November 2000, was by reason of a notice given under s 52A of the Act by the employer, which became Exhibit 1 in the employer's case before me together with the letter accompanying the notice. Both documents are dated 27 September 2000 and give notice of cessation of the weekly payments as of 10 November 2000, hence the order sought in the summons that such payments be restored as of the following day, 11 November 2000, presumably on the basis that the payments which ceased on 10 November 2000 included payments for that day. The ground upon which the notice was issued is revealed by the letter accompanying it (which as I have said is part of exhibit 1) which asserts that the worker has failed to obtain suitable employment under s 52 A(1)(a) and (c) of the Act. However the matter was fought throughout on the basis that the ground upon which the notice was issued was that not only was the worker not suitably employed within s 52A(1)(a), but she was not within that sub-paragraph seeking suitable employment as at the date of service of the s 52A notice and as determined in accordance with s 38A. Mr Stanton for the employer agreed that that was the issue on the summons before me under s 52A, both at the commencement of proceedings and in addresses, apart of course from those raised by the consolidated applications by the worker and employer, which were whether the worker had an increased s 66 entitlement, and whether her incapacity for work as found by Neilson J had increased, decreased or ceased. 5. It is now appropriate to deal with the evidence. Before doing so, however, I should indicate that when the worker gave evidence she struck me as a person somewhat psychologically preoccupied by her injuries (and understandably so in view of the vicissitudes which I shall shortly detail) but nevertheless keen to tell the truth as she saw it. She did not, I thought, consciously seek to magnify the effects of her injuries, although some inevitable exaggeration in fact occurred in the course of her evidence as a result of what I thought to be psychological preoccupation, as I have said. Rather than accepting her evidence in its entirety however, I have chosen to have regard also to various doctor's opinions as to her level of disability and capacity which differ somewhat from her own assessment, and also to the contents of a video film which was played before me in the course of the workers' cross-examination. It was not proved by the calling of an investigator, but that was on the agreement of the worker's counsel, Mr Dickerson, that the worker herself had sufficiently identified certain premises depicted in the video as those of herself and her husband and had identified herself as the person depicted performing various activities in the video. 6. The worker was born on 22 May 1947 and is therefore 54 years of age at the present time. She gave evidence before Judge Neilson of injury received in the course of her employment with the employer, and ultimately his Honour found in the judgment to which I have referred that due to the work performed by the worker for the employer between 7 March 1990 and 20 December 1990 she suffered injury to her right arm and shoulder, in particular right lateral and medial epicondylitis, the latter temporary, and an impingement syndrome of the right shoulder involving an aggravation to degenerative changes and also involving the rotator cuff. It was therefore unnecessary for the worker to detail in her evidence before me the onset of this injury and its immediate effects and she did not do so. She indicated, however, that at the time of the award by Judge Neilson she was living on the Central Coast, that being apparently where the employer's premises were, and that in that area she was looking for a lighter type of work such as light assembly work because she could not do the heavy work which she had previously done with the employer. She instanced also delivering pamphlets to houses and selling jobs and light assembly work in the Wella factory at Gosford and the Phillips factory, also at Gosford as being employment she sought in the Central Coast area. In addition she told me in evidence (without contradiction in cross examination or in other evidence) that she had made an application to the employer's insurer for light duties. She did not say to whom on behalf of the insurer she made this request, but she was not cross examined to suggest that she did not make it to anybody with authority from the insurer to receive and act on it, nor was this point raised in addresses by the respondent. She was unable to place precisely when this occurred, but said that it was some years ago and about a month after she had completed a bookkeeping course following her initial injuries. That made sense because I can well imagine that she might have hoped for bookkeeping work in an insurance company, as she said in her evidence that she sought clerical work in her application. 7. It was agreed by both counsel that I could have access to and take account of the exhibits before Judge Neilson because his Honour's judgment did not make clear when the bookkeeping course was undertaken, although it mentioned it. I have therefore undertaken this exercise and I note that exhibit 5 before Judge Neilson was a vocational assessment report of the Industrial Rehabilitation Service signed by Jane Chidgey, rehabilitation counsellor. The document is undated but it contains a history on p 2, which is nowhere contradicted in the evidence before me, that during semester two of 1991 the worker undertook and successfully completed a bookkeeping/accounts and computer awareness course at Advanced Careers College, Gosford. I take semester two to refer to the latter six months of 1991, so that if as the applicant said, and I accept, she requested suitable employment from the employer's insurer about a month after she completed the bookkeeping course, this would place the request as having occurred at approximately the end of January 1991. The worker said that this request was in writing and was unsuccessful. I will deal with the significance of this later. 8. It would appear that unfortunately the worker's husband was then retrenched from his employment in the Central Coast area, in consequence of which she and her husband were obliged to sell their house on the Central Coast and find another cheaper property in this state. They did at Wallagoot Lake, which according to the worker is between Tathra and Merimbula on the South Coast, in May 1998. Unfortunately to compound her misfortunes the worker was overtaken by a condition of breast cancer not long after the move to Wallagoot Lake, and she ultimately came to surgery for that in the form of a mastectomy on 21 October 1999. Before then she had undergone the familiar treatment of a needle biopsy in Canberra for the purposes of identifying what was thought to be tissue containing a tumour. Unfortunately, it was necessary during that surgery, according to the worker's uncontested evidence, to perform what I took to be some sort of resection of the muscles of her left shoulder. In consequence, she said, and I accept, she was left with weakness in the left arm which she had not previously experienced, her left arm before that time being normal in function. The consequence of that was that whereas before the cancer surgery she had been accustomed to using her left arm whenever possible in domestic and other tasks, she could not now so use it because it was now weaker than the right following the cancer surgery, so that she was obliged to resume the use of her right shoulder which had been damaged in her injury with the employer, as found by Judge Neilson. In consequence she experienced greater symptoms in the right arm, which was now by necessity again being used more frequently for domestic tasks than had been the case before the cancer surgery. She emphasised however that she was right-handed and that, as distinct from others, she had always had to perform writing tasks with her right hand as she was unable to write with her left hand. That is of some significance in view of Judge Neilson's finding, to which I shall refer later, that the worker was then capable of performing clerical work, although of course I am aware that such work nowadays also involves the use of computers, which may in principle at least be used with the non-dominant as well as the dominant hand. 9. Following the cancer surgery the worker found that the tasks which were required of her at the Wallagoot Lake property were too much for her, and as if that were not enough, her husband unfortunately also experienced some heart problems, as a result of which they determined on a move to a smaller property, which was undertaken on 19 March 2001 when they moved to a smaller home in Bateman's Bay, where they now reside. The worker was keen to obtain physiotherapy treatment in Bateman's Bay, having found that her right shoulder had gradually become more symptomatic than before for the reasons set out above. She was unable to pay for this treatment, so in consequence she sought employment to pay for it. She looked for jobs much as she had sought on the Central Coast, providing in evidence a long list of employers from whom she sought them, which I shall not set out in these reasons for reasons of space. It is sufficient to say that a number of employers in the Bateman's Bay area were mentioned by the worker including the local post office and library and several retail outlets. She was looking, she said, for clerical or other employment which did not involve vigorous use of either arm. The worker, as was the case on the Central Coast, was unable to find such employment in the Bateman's Bay area. 10. It is carefully to be noted that the worker gave no evidence of any attempts to find suitable employment during the period of her residence with her husband at Wallagoot Lake. As against that of course it is to be noted that according to her evidence she developed, not a long time after the move to Wallagoot Lake, a condition which ultimately led to her breast cancer surgery on 21 October 1999, and that thereafter she was on her evidence significantly incapacitated both by the after effects of the surgery and by the weakness in her left arm which followed it. I was unfortunately not favoured with any medical evidence as to the period of the worker's convalescence from the surgery or as to its exact nature, but neither was it suggested either to the worker in cross-examination or in addresses that her account of the surgery and of its after effects was anything but truthful and accurate. It seems to me to have been entirely reasonable on the part of the worker not to seek suitable employment during the period of residence at Wallagoot Lake, since it corresponds with the onset of her cancer condition and with her convalescence from it, during which time she was on the probabilities afflicted with the after-effects of what was after all fairly radical surgery in the form of a mastectomy and, it would appear, resection of the muscles and/or ligaments of the left shoulder, although the precise nature of that is difficult to determine in the absence of medical reports, as I have said. 11. The worker complains on a continuing basis of a somewhat greater disability in the right shoulder than before. She says she has significant difficulty performing domestic tasks about the house and that her social life has been affected, in that she has "no friends" because she cannot invite people home to her place in view of her inability to cook for them. The s 66 award I propose does not attract s 67 compensation, unlike that made by Judge Neilson, but it is sufficient to say that the picture I have just related is consistent with that of a person who has experienced somewhat greater permanent disability in the right arm, which was the subject of Judge Neilson's s 66 award, than was the case at the time of his Honour's award. The extent of that increase in disability is difficult to determine, having regard to the impression I have of the worker that unwittingly, but not on a conscious level, I hasten to add, her description of her disability was exaggerated, certainly as compared to the picture which emerged from the film which I shall shortly discuss. 12. The worker was cross-examined effectively and searchingly by Mr R Stanton of counsel for the employer, and I hope I will be excused if I do not cover every part of that cross-examination but only those which are particularly relevant to the matters I must determine. In compliance with the rule in Browne v Dunn (1893) 6 R. 67 [HL], the worker had put to her what was said to be her presentation as revealed in the reports of Dr A. Smith, an orthopaedic surgeon, who examined her on the employer's behalf in Sydney. It was put to her, although she did not agree, that she did not cooperate with the examination. She did say that Dr Smith attempted more vigorous manoeuvres with her right shoulder than she was capable of, and that this caused her pain. She did not agree that she exaggerated her disability when also seen by a Dr Coyle for the employer's insurer. She agreed that she had an accident at age 20 in Poland at a funfair and that this involved her neck. She said, and I accept, that she recovered completely from this injury, and it has no great significance to the findings I propose, because I shall not make any s 66 award in respect of impairment of her neck, as I shall reveal, although the worker complained of symptoms in this area at the present time and for some considerable time beforehand. 13. The worker was shown in the course of cross-examination a video film taken on 29 July 1999, according to Mr Stanton's statement of his instructions from the bar table, which was at no time contradicted by any evidence or in any other fashion by Mr Dickerson for the worker. The film depicted a woman, who the worker subsequently identified as herself, putting out some washing with her arms reaching above her head at a clothes line. The worker did not agree that her arms were above her head, but that was my impression when viewing the video film. It also depicted a woman, subsequently identified by the worker as herself, carrying shopping bags in her right and left hands. However, one of the objects being carried in the right hand was dropped by the worker, and she did not immediately return to pick it up. This I took to be, if anything, some indication of weakness in the right arm. The film also depicted the worker carrying wood, apparently for an open fire or stove, in a plastic bucket borne by her left arm. The date of the film, 29 July 1999, was of course well before the cancer surgery to which I have referred, following which the worker experienced weakness in the left arm, and it is consistent with the worker preferring the use of her left as against her injured right arm to carry heavy objects, such as containers with firewood in them. The film, if anything, corroborates the worker in this respect as to her disability at that time, although, as I have said, by the same token it shows the worker lifting her arms above her head, something that she said in evidence she could not do, at least at the present time. It may be that she is indeed unable to do this at the present time, and the film does not show otherwise, but certainly it shows that in 1999 she was able to do so. This is of some significance in light of some parts of the medical evidence which describe the worker as having a "frozen shoulder". 14. Passing to that medical evidence, exhibit B is a report of Dr Michael Casey of Kariong, dated 30 October 1991, Dr Casey having been apparently the worker's treating general practitioner when she was living on the Central Coast. It details Dr Casey's treatment of her condition, and I need not concern myself with it in detail in view of Judge Neilson's findings as to the nature of the worker's injuries as at the date of his Honour's judgment, which well and truly postdates Dr Casey's report. 15. Exhibit C is a report of Dr Matthew Nott, orthopaedic surgeon of Bega, dated 25 September 2000, addressed to Dr Mark Oakley, the worker's treating general practitioner in Bega. Dr Nott thought that the worker had a frozen right shoulder, a diagnosis upon which in my view some doubt is cast by the video, as I have said. He advised further physiotherapy to concentrate on range of movement exercises and apparently was not keen on surgery. As the report is not medico-legal he does not give any hint as to the extent of permanent loss at the present time in percentage terms. He apparently thought her condition continues to be related to injury with the employer in its factory at Gosford. 16. Exhibit D is a very long report from Dr John McKee, a medico-legal consultant in Bega with surgery qualifications, dated 24 April 2000, obtained on a qualified basis by the worker's solicitors. Shortly, Dr McKee is of the opinion that the worker has a complete or almost complete rupture of the supraspinatus tendon of the right shoulder, but considers that as at the date of his examination, which appears to have been on 18 April 2000, her condition could not be assessed from the point of view of permanent percentage loss. 17. Exhibit E is two reports of Dr W.G.D. Patrick, general surgeon of Camperdown dated 17 August 1994 and 22 May 2001. It was agreed by counsel for the worker and the employer that the first report just mentioned was that mentioned in Judge Neilson's judgment and was before his Honour at that time. It opines that the applicant has an 18 per cent permanent loss of use of the right arm at or above the elbow. It does not particularly mention any pre-existing condition contributing to that loss, and attributes it entirely to injury such as was found by Judge Neilson to have occurred to the worker in the employment of the employer at Gosford. 18. In a later report of 22 May 2001 Dr Patrick offers the opinion for the first time that the worker has a 10 per cent permanent impairment to the neck, attributing this to an aggravation of cervical spondylosis, as I read his report. The fact that Dr Patrick did not think in 1994 that the worker had this condition, at a time well and truly after she had ceased employment with the employer, makes me wonder how it is connected in any way with the original injury, and the fact that the worker in her evidence did not lay any particular stress on neck symptoms, other than saying that she had a neck problem of small degree from time to time, suggests to me that her symptoms do not really reside to any great degree in that area at all. I am not convinced that the worker has on the balance of probabilities a permanent impairment of her neck as a result of the subject injuries with the employer. 19. Dr Patrick then thought that the worker as at the date of his examination in May 2001 had a further 13 per cent permanent loss of use of the right arm at or above the elbow, in addition to that which was the subject of Judge Neilson's previous award, namely 15 per cent loss of use of the right arm at or above the elbow. 20. Dr Christopher Browne, a rheumatologist, gave a report of 5 July 2001, which was exhibit F, on a qualified basis to the worker's solicitors. He thought, apparently for similar reasons to those of Dr Patrick, that there was a 10 per cent permanent impairment of the neck and 50 per cent permanent loss of the use of the right arm at or above the elbow, taking into account any loss below the elbow. He thought that of this right arm loss, half of it was present up to the time of ceasing work with the employer in 1992, while the other half could be attributed to the subsequent complication of frozen shoulder syndrome. He thought that the frozen shoulder disorder was unlikely to have occurred had the worker not developed the original related rotator cuff tendonitis disorder, as Dr Browne put it. I have already indicated my reasons for concluding on the basis of the video film that the worker has not in fact suffered a frozen shoulder, or at least not a shoulder which is completely frozen, as a result of the subject injuries. Dr Browne's assessment, as does Dr Patrick's, appears to rely on the assumption that the worker does have a completely frozen shoulder so I regard both assessments, particularly that of Dr Patrick, as somewhat over the mark. 21. Dr William Coyle, orthopaedic surgeon, wrote a report of 18 December 2000 addressed to the employer's solicitors on a qualified basis, which however became exhibit G in the worker's case, in which he expressed the surprising opinion that the worker had a 30 per cent impairment of the right upper limb as a result of her frozen shoulder condition. However he then wrote a report qualifying that opinion dated 6 June 2001 to the employer's solicitors which became Exhibit 5 in its case, indicating that after viewing the video film which was shown before me during the worker's cross-examination, he thought she only had a 10 per cent impairment of the right upper limb as a result of her shoulder condition. 22. Exhibit H is a report by Dr Iain Stewart to Dr Hadley, dated 14 September 2000, on an MRI arthrogram of the right shoulder, including that a rotator cuff tear was not demonstrated but that rotator cuff tendonosis and subacromial/subdeltoid bursitis and an inferior acromial spur were present. These would appear to confirm that the worker does have genuine pathology in her right shoulder as a result of her injuries with the employer, as Dr Patrick and Dr Nott in particular consider. 23. Exhibit J is an ultrasound report on the worker's right shoulder addressed to another general practitioner, Dr R Hartemink, dated 16 February 2000, indicating a supraspinatus tendon tear, only a small amount of residual tendon being visible posteriorly. 24. Exhibit K is a report on a plain x-ray of the right shoulder by Dr Mora, also addressed to Dr Hartemink, dated 15 February 2000, noting faceting of the under surface of the acromion process suggestive of a rotator cuff lesion. Whether it is correct that the worker has a rotator cuff lesion or not, these reports clearly establish an objective basis for her right shoulder symptoms. 25. Exhibit 3 was a report of Dr Roger Tuck, consultant neurologist, dated 31 May 1999 upon which the worker was cross-examined by Mr Stanton, relating to a concurrent problem the worker had in relation to weakness in the legs. Dr Tuck does not seem to have been able to form a conclusion as to the origin of that condition . He nowhere suggests that as at the date of his report the worker was totally incapacitated for work. The fact that the worker was suffering this concurrent condition is a matter which must be considered when evaluating the reasonableness of her search for employment at various times, and it must also of course by the same token be considered when applying the s 40 discretion to the worker's claim for increase in weekly payments, should such an increase be appropriate. 26. The same considerations apply to exhibit 4 which is a report of Dr Andrew Brook, neurologist of Canberra, dated 23 February (the year is unclear but it seems clear that in the worker's statements in cross-examination when she was asked about the report that it was produced in 1999). Dr Brook examined the worker for the same leg weakness problem as Dr Tuck did and he too was unable to form a specific diagnosis. Both Dr Brook and Dr Tuck commented also on the worker's left arm problems, but neither appears to have received a history nor any investigations relating to the worker's right shoulder injury with the respondent as found by Judge Neilson. 27. Exhibit 6 is two reports of Dr Anthony Smith, orthopaedic surgeon of Sydney, dated 13 December 2000 and 9 April 2001, with a short annexure to the report of 13 December 2000 of the same date as that latter report. Dr Smith shortly thought the worker was exaggerating and was unable to assess any permanent loss of use of the right arm and did not think she had any organic condition justifying such loss of use, as a result of injury with the employer or otherwise. I do not accept Dr Smith's opinion in that regard, contradicted as it appears to be not only by the opinion of the treating orthopaedic surgeon, Dr Nott, who after all has had the opportunity to examine the worker in non medico-legal circumstances rather than for the purpose of this litigation, but also by the radiological investigations to which I have referred, which to my mind amply justify the view of Dr Nott that the worker has a significant right shoulder rotator cuff lesion, though not his opinion that she has an entirely frozen right shoulder, which I did not think she has, as I have said, because of her behaviour in the video film. 28. I think that Dr Patrick was considerably disadvantaged by not seeing that video film which I have had the benefit of seeing, and I think his opinion as to the increase in the worker's right shoulder disability is consequently over the mark, as I have said, and that of Dr Browne is very much over the mark, and does not even coincide with the worker's own description of her problems, which nevertheless depicts them as somewhat more serious than the video would suggest. 29. Doing the best I can, I think that the worker has a 6 per cent additional loss of use of the right arm at or above the elbow in consequence, it would appear, principally of greater use of the right shoulder as a result of weakness in the left shoulder created by the cancer surgery. Judge Neilson remarked on the existence of a pre-existing degenerative condition in the right shoulder and, as I read his Honour's judgement, found that to contribute to the total loss. Of course s 68A had no application at the time of his judgment but it does apply now, and although it is not proper to find what proportion of the loss found by Judge Neilson is due to any pre-existing degenerative condition, it seems to me appropriate to find that of the further 6 per cent additional permanent loss of use of the right arm at or above the elbow, over and above the 15 per cent loss in that area found by Judge Neilson, one per cent is due to the pre-existing degenerative condition found to contribute to the total loss by Judge Neilson, so that 5 per cent is the permanent loss of use of the right arm at or above the elbow solely attributable to the subject injuries, and there will be an award for the applicant under s 66 accordingly. As I have said, s 67 is not attracted by that finding. 30. As to the application of s 52A, I note that the employer here relies on the circumstances set out in subparagraph (a) of the three subparagraphs (a), (b) and (c) which may (as a result of the disjunctive "or" between them) alternatively and separately base a cessation of weekly payments under sub s(1) of the section. Subpar (a) reads: The worker is not suitably employed (within the meaning of s 43A) and is not seeking suitable employment (as determined in accordance with s 38A). 31. The application of the first part of this sub-paragraph was not disputed by the worker's counsel, Mr Dickerson, but he contended that as at the date of issue of the notice, part of Exhibit 1, the worker was seeking suitable employment within the meaning of the sub-paragraph. S 38A, to which the subparagraph refers, has some "general requirements" in sub-section (2) which read: A worker is not to be regarded as seeking suitable employment unless: (a) The worker is ready, willing and able to accept an offer of suitable employment from the employer; and (b) The worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker's partial incapacity for work, being a medical certificate that he is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker; and (c) The worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer; and (d) The worker is taking reasonable steps to obtain suitable employment from some other person. Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker's employment prospects. 32. It is to be noted that s 38A(7) defines "suitable employment" where used in the section as "suitable employment within the meaning of s 43A". I shall come to that section later. 33. Going through s 38A(2), it would appear to me that when the worker was on the Central Coast and sought lighter employment, first from the employer's insurer and second from a number of prospective employers in the area, she displayed her readiness, willingness and ability to accept an offer of suitable employment from the employer within subparagraph (a). This was well before the s 52A notice, but after it she displayed similar attributes when seeking work at Bateman's Bay. 34. It also seems to me that in compliance with subparagraph (b) the worker served upon the solicitors for its insurer (and by extension that insurer) a number of medical reports which were subsequently tendered by her in proceedings before Judge Neilson, establishing the parameters of the worker's ability to perform suitable employment. It is sufficient in that regard to look (as Mr Stanton for the employer agreed that I could) for example at exhibit K before Judge Neilson which was a report of Dr Leslie Glen, who apparently has surgical qualifications, dated 21 September 1993, addressed to the worker's solicitors indicating (on p 3) that she is "physically restricted in the type of work which she can perform" and "certainly she is unable to rely on effective use of the right upper limb until improvement can be achieved by primarily as a result of surgical treatment" (which has not occurred) and at exhibit H before his Honour, which was a report of 17 May 1993 by Dr James Bodel, orthopaedic surgeon, addressed indeed to the employer's insurer but no doubt re-served on it, as it was tendered by the worker, which says that "the worker is fit for at least part-time light duty activities as long as they are done at base level and do not require repetitive activities with the right upper limb" (see p 4). 35. It seems to me that these documents fall within the second part of s 38A(2)(b), that is to say, that they are medical certificates "in some other form" which contain "information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker." It seems to me that the words "has supplied" in the subparagraph do not mean that the worker must, as it were, re-supply the relevant details at a time precisely proximate to the s 52A notice; it is sufficient I think to comply with the subparagraph that they have been supplied at some time in the recent past, so that the employer and/or its insurer are thereafter put on notice of the nature of the "suitable employment" the worker can perform. The word "assist" in the subparagraph indicates, I think, that the material served need not set out in precise detail exactly what occupation would comply with the description of "suitable employment". 36. Subparagraph (c) of s 38A, it appears to me, was complied with by the request to the employer's insurer (which is stated in the alternative by the subsection as being sufficient to trigger its operation) to provide suitable employment in, it would appear, late January 1992. It would appear from her evidence that the worker offered to perform clerical duties for the employer's insurer at this time, and that these fell within the prescriptions of Dr Bodel in particular. 37. Finally subparagraph (d) of s 38A (2), it seems to me, was complied with by the worker at the time she was seeking employment on the Central Coast and when she subsequently sought employment in Bateman's Bay. The steps she took at those times seemed to me to be "reasonable" within the meaning of the subparagraph. 38. The difficult question for decision is however whether the worker is to be regarded as "taking reasonable steps to obtain suitable employment" - present tense - within sub paragraph (d) at the time the notice was served. It must be remembered that at that time she was at Wallagoot Lake and had not there sought employment after leaving the Central Coast, and did not do so again until she moved to Bateman's Bay. 39. I am given some guidance as to what the seeking of suitable employment means by Camilleri v Western Sydney Area Health Service (2000) 20 NSWCCR 499 where Judge Burke at 507 followed the decision of Judge Curtis in Hughston v Hughston & Sons (1999) 18 NSWCCR 312 to hold that a worker may be "seeking suitable employment" even if at the precise relevant time (the service of the notice) the worker was not actively seeking work, because the intention to seek work may be persistent even though the implementation of the intent is intermittent (see Judge Burke at 508). Similarly Justice Campbell held in Johnson v Chubb Security Australia Pty Ltd (1998) 16 NSWCCR 549 that fulfilment of the requirement to take reasonable steps to seek suitable employment is not inconsistent with apparent oddities and inconsistencies in applications for employment by long-time unemployed workers, and that most workers find constant applications for work and equally constant rejections with various levels of politeness very distressing and humiliating, and that as a consequence it is not unusual for long-time unemployed workers to have and express negative views about employers generally, and to be reluctant endlessly to repeat requests for employment. These sensible observations, if I may respectfully so describe them, provide some guidance as to how I should treat the worker's evidence in this case, in my view. 40. Here was the worker in effect turned out of her house in Gosford because she and her husband I gather could no longer keep up the loan payments because of his loss of employment and living at Wallagoot Lake, far from any suitable source of employment, not so much no doubt because of an inherent desire to retire, something the worker was never accused of in cross-examination, but rather because of the cheapness of the accommodation. As I have said, s 38A incorporates the meaning of "suitable employment" in s 43 A, and s 43 A (1) refers in subparagraph (c) to "the worker's place of residence" as something which a Court may have regard to in determining what is "suitable employment". Subparagraph (h) of s 43 A (1) also refers to "any other relevant circumstances". It seems to me that the worker's concurrent conditions of leg weakness and subsequently what was no doubt life-threatening breast cancer, and radical surgery for it, are "other relevant circumstances" and should condition my consideration of what was "suitable employment" for her at the time she was resident at Wallagoot Lake, and of whether her efforts to obtain such work were when the notice was issued "reasonable" within s 38 A (2)(d). In fact it does not seem to me to be reasonable to have expected the worker to seek employment at all during the time she was resident at Wallagoot Lake when she was afflicted with these other conditions, and in particular was for a time no doubt totally incapacitated as a result of her cancer condition and mastectomy and consequent resection of the left shoulder to correct it. 41. It seems to me proper nevertheless to regard the worker as making reasonable efforts to seek suitable employment at the time of service of the s 52 A notice, having regard to what I apprehend to be her intention to obtain suitable employment as evidenced by her earlier attempts when she was resident on the Central Coast; her later ones when she was resident at Bateman's Bay are it seems to me some indication of the genuineness of her intention to seek suitable employment as at the date of the s 52A notice, although they were not undertaken before it. It seems to me that in the way Judge Burke considered the matter in Camilleri's case, the worker at no stage lost her intention to seek suitable employment while at Wallagoot Lake, and indeed it was not suggested to her in cross-examination that she had retired there or that she did not retain her intention to obtain suitable employment while she was there, although, by the same token, as I have said, she did not in fact seek such employment while she was there. What happened there was that other non work-caused incapacity supervened as a result of her breast cancer and its surgical aftermath, which I think made it as a temporary matter practicably impossible for her to seek or hold down any job for a period corresponding approximately with her residence at Wallagoot Lake. It seems to me in these circumstances that subparagraph (d) of s 38A(2) is satisfied at all relevant times, including the time when the notice under s 52A, exhibit 1, was issued, which appears to have been 27 September 2000, it being received by the worker, I infer from her evidence, on the probabilities no more than a week after that. 42. It seems to me that the worker is therefore entitled to succeed in obtaining an order that her weekly payments of compensation be restored as of 10 November 2000, and that likewise payment of her s 60 expenses incurred after 29 September 2000 be restored. 43. Coming now to the employer's application for termination or diminution and the worker's application for increase in those weekly payments, the situation as revealed by Judge Neilson's judgment was that the worker was at that time found capable of earning $413 per week in clerical employment, and her probable earnings but for injury were at that time found to be $494.15 per week, both pursuant to s 40. In consequence the worker received an award pursuant to s 40 for the whole of the difference between those two figures, namely the sum of $81.15 per week. 44. Exhibit A is the worker's wage schedule before me, and it establishes that from 10 November 2000 to 31 December 2000 the worker's probable earnings but for injury were $500 per week and that from 1 January 2001 to date there were $510 per week. 45. Having regard to the knowledge said to be possessed by this tribunal of industrial awards and such matters in such authorities as J&H Timbers Pty Limited v Nelson (1972) 126 CLR 625, I consider that the worker's ability to earn in clerical employment, which I think she is still capable of performing as Judge Neilson found, should be found at a level slightly lower than his Honour found. The reason for that is that the worker's capacity for work has on the probabilities decreased slightly as a result of the slightly increased permanent loss of use of the right arm at or above the elbow which I have found. In consequence I consider that the worker's ability to earn in suitable employment should now be set at the sum of $400 per week in slightly lighter clerical duties than those for which Judge Neilson considered her to be fit. I consider this state of affairs existed on the probabilities at least from 10 November 2000 until 31 December 2000, these being the dates during which the worker's wage schedule, Exhibit A, discloses that the worker's probable earnings but for injury were $500 per week. It discloses that they are $510 per week until the present time. 46. I consider that the worker's ability to earn in suitable employment has not changed since the last mentioned date until the present time. The consequence is that differences of $100 per week and $110 per week are thrown up by a s 40 deduction of ability to earn from probable earnings as found above from 10 November to 31 December 2000 and 1 January 2001 to date respectively. 47. As submitted by Mr Stanton for the employer, I think it is appropriate to exercise the s 40 discretion slightly to decrease that difference in view of the worker's concurrent ongoing problems in the left shoulder as a result of the cancer surgery, and her concurrent leg weakness for which she saw Drs Tuck and Brook. The result is that the worker is entitled to an increase in the weekly payments awarded by Judge Neilson to $90 per week from 10 November 2000 to 31 December 2000 and $100 per week from 1 January 2001 to date and continuing, and there will be an award accordingly. 48. I should record that ultimately in addresses neither Mr Stanton nor Mr Dickerson for the employer and worker respectively sought to disturb the preliminary conclusions I had reached and which I then expressed as to the proper result of this application, which I shall set out in the findings which I shall make in a moment, with the exception of that under s 52A, with Mr Stanton vigorously contending that the requirements of the section have not been satisfied by the worker, so that her weekly payments of compensation and continuing payment of s 60 expenses should cease. 49. I make the following findings: 1. As at date of issue of s 52A notice on 27 September 2000, worker was making reasonable efforts to obtain suitable employment and had provided employer's insurer with medical certificates containing information reasonably sufficient in the circumstances to determine what was suitable employment for the worker and had sought such suitable employment from the employer's insurer. 2. As at such date worker continued to be partially incapacitated for work resulting from injury in employ of employer as found by Judge Neilson. 3. Resulting from such injury worker now has permanent loss of use of right arm at or above elbow of a total of 21 per cent of which one per cent results from previous degenerative condition of right shoulder, 15 per cent thereof being previously being compensated by award of Judge Neilson, entitling worker to additional s 66 compensation for a further 5 per cent permanent loss of use of right arm at or above elbow. 4. From 10 November 2000 to 31 December 2000 and from 1 January 2001 to date, worker's probable earnings but for injury were respectively $500 and $510 per week respectively. 5. From 10 November 2000 to date and continuing worker's ability to earn in suitable employment is $400 per week. 50. I make the following award in the applicant's favour: 1. Employer to resume payment of weekly award of Judge Neilson from 10 November 2000 to date and continuing. 2. Such award increased to $90 per week from 10 November 2000 to 31 December 2000 and to $100 per week from 1 January 2001 to date and continuing both pursuant to s 40. 3. Employer to resume payment of worker's s 60 expenses from 29 September 2000 to date and continuing pursuant to award of Judge Neilson. 4. $4,000 for 5 per cent additional permanent loss of use of right dominant arm at or above elbow under s 66. 5. Employer to pay worker's costs of summons and both applications as agreed or assessed. Recommend such costs include counsel's fees for advice on evidence and additional conference. Mr D Dickerson instructed by Griffiths Tierney appeared for the applicant. Mr R Stanton instructed by Vandervords appeared for the respondent. 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