A H Beard Pty Limited v Iljasov - [2006] NSWWCCPD 226

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:A H Beard Pty Limited v Iljasov [2006] NSWWCCPD 226

APPELLANT: A H Beard Pty Limited

RESPONDENT: Milco Iljasov

INSURERS:(i) Allianz Australia Workers
Compensation (NSW) Limited on risk from 30 June 1987 to 30 June 2001.
(ii)QBE Workers Compensation (NSW)
Limited on risk from 30 June 2001 to 30 June 2005.

FILE NUMBER:  WCC11494-05
DATE OF ARBITRATOR’S DECISION:          8 February 2006
DATE OF APPEAL DECISION:  13 September 2006
SUBJECT MATTER OF DECISION: Assessment of residual earning capacity – whether total or partial; application of sections 37 and 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      1. Allianz Australia Workers
Compensation (NSW) Limited – no appearance
2. QBE Workers

Compensation (NSW) Limited – Gillis Delaney Lawyers
Respondent: Carters Law Firm

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 8 February 2006 is confirmed.

2.The Appellant, A H Beard Pty Limited, in the interests of QBE
Workers Compensation (NSW) Limited is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

Milco Iljasov (‘Mr Iljasov’) was employed by A H Beard Pty Limited (‘Beards’), manufacturers of mattresses. Mr Iljasov arrived in Australia from Macedonia on 2 June 1987 and commenced working with Beards two days later in the capacity of a process worker and machinist.

Mr Iljasov claimed that the nature and conditions of his employment required forceful and repetitive use of both his arms and hands as a consequence of which he suffered injury.

Mr Iljasov ceased work with Beards in June 2004. He was paid weekly benefits of compensation by QBE Workers Compensation (NSW) Limited (‘QBE’) from 24 June 2004 to 5 February 2005 when liability was declined on the grounds that Mr Iljasov suffered a “… constitutionally based degenerative condition in each thumb …” and that any work aggravation to “… each of your thumbs … [and] both your arms has now … ceased.”

On 13 July 2005 Mr Iljasov filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 7 February 2005, medical, hospital or related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

At a teleconference on 21 September 2005, Mr Iljasov withdrew his claim for permanent impairment/pain and suffering compensation.

The parties attended a conciliation/arbitration hearing on 10 October 2005. On 8 February 2006, a ‘Certificate of a Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:

“1.Respondent to pay the Applicant weekly payments of compensation pursuant to s37 of the Workers Compensation Act 1987 (no dependent spouse, 2 dependent children) from 7 February 2005 to 31 March 2005 $459.10 per week, from 1 April 2005 to 31 October 2005 $474.90 per week, and from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWWCCPD 226
Decision Date: 13 September 2006

CaseChat Overview and Summary

The case of A H Beard Pty Limited v Iljasov involves a dispute over the extent of the plaintiff's incapacity for work due to injuries sustained in a workplace accident. The matter was heard in the NSW Supreme Court. The primary issue before the court was whether the plaintiff, Mr Iljasov, was totally incapacitated for work, thereby entitling him to weekly compensation payments under section 33 of the Workers Compensation Act 1987. The court had to consider the medical evidence presented and determine whether the Arbitrator's finding of total incapacity was justified.

The court examined the medical evidence and the Arbitrator's reasoning in concluding that Mr Iljasov was totally incapacitated for work. The Arbitrator had rejected the opinions of certain medical experts and preferred the opinions of others who found that Mr Iljasov was unfit for jobs requiring significant manual activity. The court acknowledged that while the medical evidence suggested some residual earning capacity, it was well-established that a finding of total incapacity could still be made if the plaintiff could not reasonably perform work accessible to them given their skills and other relevant circumstances.

The court ultimately upheld the Arbitrator's finding of total incapacity. It found that the Arbitrator had correctly considered the practical realities of the labour market and the plaintiff's ability to perform work in that market. The court accepted that Mr Iljasov's significant restrictions in employment, coupled with his limited transferable skills, justified the conclusion that he was unable to perform work in a practical sense.

The court's decision reinforced the principle that total incapacity for work can be found even if there is evidence of some residual earning capacity. The final orders were in favour of the plaintiff, confirming the Arbitrator's decision and entitling the plaintiff to weekly compensation payments.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It seems clear then that the preponderance of medical evidence suggested that Mr Iljasov had some residual earning capacity, and I accept QBE’s submissions on this point. However, that is not the end of the matter. As QBE rightly points out in its submissions: “… it is well established that a finding of total incapacity may be open even where the worker retains a residual capacity …” It is QBE’s submission that, in this particular case, “… a finding of total incapacity was not open on the facts of this case.” The principal entitlement to weekly payments of compensation is contained in the provisions of section 33 of the 1987 Act. It provides as follows: As is pointed out in the Mills Workers Compensation Service, “a classic test of ‘incapacity’ is contained in Ball v William Hunt & Sons Limited [1912] AC 496, where Lord Loreburn says in reference to an English workers compensation statute: Thus, a finding of total incapacity is sustainable even though there is evidence that a worker is able to undertake some form of work. This principle has been firmly established in a number of decisions of the Court of Appeal. As Mahoney P said in Lawarra Nominees Pty Limited v Wilson [1996] 25 NSWCCR, unreported Court of Appeal 29 November 1996: In assessing whether a worker is totally incapacitated for work a court is not concerned with determining whether in a hypothetical or theoretical situation a worker can perform work but with determining whether a worker can perform work in a practical sense having regard to the realities of the labour market reasonably accessible to a worker, that is, the labour market in which a worker might be expected to work given the worker’s skills, education and other relevant circumstances. In the present case, the Arbitrator concluded at paragraph 53 of his ‘Statement of Reasons’ that: “When viewed in conjunction with the evidence of the Applicant, I prefer the opinions of Dr Champion and Dr Habib and Dr Mahony regarding the nature of the injuries and the cause thereof over the opinions proffered by Dr Perla and Dr Conolly.” In paragraphs 64 to 68 inclusive of the Arbitrator’s ‘Statement of Reasons’, he dealt with the issue of “Incapacity - total or partial”. No reference is made by the Arbitrator to any specific medical reports from Mr Iljasov in those paragraphs. The Arbitrator noted that (paragraph 64): “In January 2005 upon reliance of the opinions of Dr Perla and Dr Conolly, the insurer ceased making compensation payments upon the basis that any aggravation to the Applicant’s condition has ceased”. The Arbitrator rejected those opinions and concluded that Mr Iljasov’s “… incapacity of his pre-injury duties is continuing”. The Arbitrator then went on noting at paragraph 65 that “I have had regard to the various medical reports and the contents of the vocational reports relied upon by the Respondent …”. He concluded at paragraph 67: The preponderance of medical evidence certainly suggested that Mr Iljasov was significantly restricted in employment requiring significant use of his hands. Dr Champion, whose report was perhaps the most detailed of all the medical evidence before the Arbitrator, being not only the most recent but also providing detailed analysis of other medical reports, concluded that Mr Iljasov was “unfit for any job involving significant manual activity”. As Dr Champion then pointed out, “this puts him in a major predicament since he has few transferable skills as discussed earlier”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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