A H Beard Pty Limited v Iljasov
[2006] NSWWCCPD 226
•13 September 2006
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 1 October 2005 $484.60 per week to date and continuing.
2.Respondent (in the interests of QBE Workers Compensation (NSW) Limited) to pay the Applicant’s costs as agreed or assessed.”
On 8 March 2006 Beards, in the interests of QBE, lodged an ‘Appeal Against Decision of Arbitrator’. There are 10 grounds of appeal cited but in essence, QBE submits that the Arbitrator erred in failing to properly consider or have due regard to the weight of evidence with respect to Mr Iljasov’s residual work capacity, and failed to give adequate reasons for his findings. It is QBE’s submission that “… the only proper conclusion available on the weight of evidence is that the worker is fit for a wide range of non repetitive tasks not involving lifting excessive weights” and that “… on any reasonable view of the evidence the worker is partially incapacitated.”
On 3 April 2006, Mr Iljasov filed a ‘Notice of Opposition to Appeal’. In essence, Mr Iljasov submits that the Arbitrator’s award was consistent with the evidence before him, that he was entitled to accept the evidence upon which his findings were based, and that his reasons were adequate.
No appearance has been filed or submissions made by Beards in the interests of Allianz Australia Workers Compensation (NSW) Limited.
LEAVE TO APPEAL
The amount at issue on the appeal satisfies the criteria set out in section 352(2) of the 1998 Act. The appeal was filed within the time limits prescribed by section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Both parties submit that the appeal is suitable for a determination ‘on the papers’. Section 354(6) of the 1998 Act provides that:
“If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having carefully read the Arbitrator’s lengthy reasons, the transcript, all the evidence before him, and the submissions by both parties on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction No. 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
I note at this point that in its submissions filed on 8 March 2006, QBE noted that it had not yet received a transcript and “… reserves its position with regard to amending the grounds of appeal and supplementing its submissions.” I note a transcript was forwarded to QBE’s solicitors on 28 June 2006, but no further submissions have been received since that time. Whilst the transcript records that there were some “gaps” in the recording of the matter due to some difficulties with the recording device, I am satisfied that the issues the substance of this appeal have been adequately documented in the transcript.
THE ISSUES ON APPEAL
QBE takes no issue with the Arbitrator’s findings “… in relation to injury and disease …” The principal issue, as I have said earlier, is as to the Arbitrator’s findings on the question of Mr Iljasov’s residual earning capacity. The submissions in relation to this issue can be summarised as follows:
· The Arbitrator failed to properly consider the preponderance of medical evidence
which, QBE submits, led to a conclusion of partial incapacity.
· The Arbitrator failed to provide any analysis of the medical evidence so far as it
might be capable of supporting a finding of total incapacity.
· The Arbitrator failed to properly consider a general range of suitable duties
available to Mr Iljasov.
· The Arbitrator inappropriately dealt with the evidence as to Beards’ failure to
provide suitable duties.
· The totality of the medical evidence did not support a finding of total incapacity
and reflected an inappropriate exercise of his discretion.
· The Arbitrator failed to provide adequate reasons to support his findings on the
issue of incapacity.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Weight of the Medical Evidence
QBE submits that:
“The Arbitrator erred in failing to consider the evidence relating to the extent of the Applicant’s ongoing incapacity. In this regard, it is submitted that the Arbitrator failed to properly consider the medical certificates and the preponderance of medical reports which on the weight of evidence lead to a conclusion of partial incapacity.”
In paragraph 24 of the ‘Statement of Reasons’, the Arbitrator listed the documentary evidence before him without detailing the specific medical evidence. He noted that Mr Iljasov’s documentary evidence were his statement, the ‘Application to Resolve a Dispute’ and two applications to admit late documents. The evidence for QBE and Allianz were noted only as their respective ‘Replies’.
However, at paragraphs 36 and 37, the medical evidence was summarised being a number of “medical reports, investigations or certifications …”. In brief, there were a number of medical certificates attached to Mr Iljasov’s Application from his general practitioner, Dr Kuzmanovski. The most recent appears to be one dated 28 January 2005. Dr Kuzmanovski had, since at least September 2004, certified Mr Iljasov as fit for suitable duties with “no forceful and repetitive gripping with both hands”. No other restrictions were identified. A Dr Kafiris had certified Mr Iljasov fit for suitable duties in late July and early August 2004 with “no use of left hand” and “not to drive at work”. Earlier certificates in June and July 2004 signed by a Dr Lau had similarly certified Mr Iljasov as fit for suitable duties with avoidance of “heavy usage” of his left hand.
It is true therefore that most of the medical evidence by way of WorkCover Certificates identified Mr Iljasov as fit for suitable duties from June 2004.
Mr Iljasov also relied upon a number of radiological and medical reports. Given that no issue is taken by QBE as to the Arbitrator’s findings on the issue of “injury”, it is not necessary to consider the radiological evidence. Dr Lionel Chang, specialist hand surgeon, saw Mr Iljasov at the request of Dr Lau on 9 July 2004. He opined “I think that for a start he should lay off heavy work for the time being …” and, after noting a referral to another specialist to consider surgery, concluded, “… it would appear unlikely that he could continue with heavy work load on his hands indefinitely into the future …” Dr Chang saw Mr Iljasov again on 6 October 2004 and again, in reporting to Dr Lau, concluded “I feel that he ought to consider a change of his occupation or arrange for a modification of his work load and pattern…” Nothing further was said about his capacity for work.
Mr Iljasov consulted Dr Graham Gumley, specialist hand surgeon, on 15 July 2004. In a report of the same date, Dr Gumley opined: “His work as described to me indicates the need for a work place evaluation particularly to consider the amount of force taken on his and co-worker’s thumbs in their work activities.” Dr Gumley concluded that “work place modifications” may assist.
Mr Iljasov was also seen by Dr Ian Portek, Consultant Rheumatologist, on 10 August 2004. Dr Portek, like many other specialists, noted the osteoarthritis present in Mr Iljasov’s hands together with De Quervain’s tenosynivitis and lateral epcondylitis and suggested treatment but made no comment on capacity for employment.
Mr Iljasov was also seen by Dr Grahame Mahony on 1 November 2004, to whom he was referred by Dr Kuzmanovski. Dr Mahony provided reports dated 9 December 2004 and 14 December 2004 and 22 December 2004 and opined that Mr Iljasov was “unfit for work”.
Mr Iljasov was also referred for medico-legal assessment to Dr Sheikh Habib. In a report dated 23 December 2004, he concluded that:
“Mr Iljasov was not fit for his pre-injury duties or similar jobs requiring the repetitive gripping, holding or application of force using the thumbs … he was however fit for supervisory duties or semi-sedentary jobs not involving repetitive use of the hands, wrists as stated above.”
Mr Iljasov also relied on a detailed nine page report from Dr David Champion dated 18 August 2005. Dr Champion, after examining Mr Iljasov and commenting on a number of other medical reports concluded that:
“Mr Iljasov is unfit for his former employment and unfit for any job involving significant manual activity. This puts him in a major predicament since he has few transferable skills as discussed earlier.”
QBE relied upon reports from Dr Perla, Dr Bruce Conolly and vocational/rehabilitation reports from a company known as Empact. Those last reports I will deal with shortly. So far as the medical evidence is concerned, Dr Perla saw Mr Iljasov on 2 August 2004. Dr Perla noted that: “The aggravation has not yet ceased. He requires further treatment” and that “I do not consider Mr Iljasov to be exaggerating his symptoms.” Dr Perla suggested further treatment but concluded that Mr Iljasov was still currently fit for fulltime suitable duties. In a report dated 30 August 2004, he simply viewed the medical reports obtained on behalf of Mr Iljasov to which I have referred in the preceding paragraphs and again concluded that Mr Iljasov was fit for suitable duties with “no forceful gripping with either left or right hand … he should avoid lifting, pulling or pushing of more than three to four kilograms.”
At the suggestion of Dr Perla, QBE arranged for Mr Iljasov to be reviewed by Dr Bruce Conolly, specialist hand surgeon, who saw Mr Iljasov on 12 January 2005. Dr Conolly diagnosed bilateral degenerative arthritis of the basal joint of each thumb and considered that “… the aggravation caused by the work has now ceased …” Dr Conolly considered that Mr Iljasov was fit for work because “… he has good finger movement and good arm function and could carry out a certain amount of work not involving heavy gripping or grasping.”
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:
“33.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.”
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:
“In the ordinary and popular meaning which we are to attach to the language of this statute, I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch’.”
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:
“The incapacity for work upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work: Arnotts Snacks Products Pty Limited v Yacob (1983) 155 CLR 171 at 177. That principle has been applied frequently by this court … partial incapacity involves the physical incapacity for doing some but not all of such work … Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: What is the relevant labour market … and of that kind of work, what is he physically able to do … It involves the assessment of a capacity for work having regard to the realities of the labour market in which he is to be engaged.”
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:
“Given the above findings concerning the Applicant’s injuries, the Applicant’s age, and his reduced command of English or transferable vocational skills and training I am satisfied that the Applicant is totally incapacitated from obtaining employment in a market reasonably assessable [sic] to him and I find the Applicant has a total incapacity for work within the meaning of s36 of the 1987 Act.”
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”.
Thus whilst it is fair to say that the weight of medical evidence suggested that Mr Iljasov was, in a physical sense, partially incapacitated for employment, other evidence, as referred to by the Arbitrator in paragraph 67 of his ‘Statement of Reasons’ quoted above suggested otherwise. It seems clear from the Arbitrator’s ‘Statement of Reasons’ that his findings and conclusions in relation to Mr Iljasov’s “residual capacity” for employment were primarily based on other factors, and not solely the medical evidence.
This position was open to him in line with the principles associated with the concept of “total incapacity for work” in section 37 of the 1987 Act to which I have referred above, and it is this evidence which is of significance in determining whether or not the Arbitrator erred in his ultimate finding.
QBE submits that “The Arbitrator has failed to provide any analysis of the medical evidence so far as it might be capable of supporting a finding of total incapacity.” The Arbitrator’s ‘Statement of Reasons’ demonstrate that he analysed the medical evidence in detail so far as his findings as to injury were concerned and indeed, his findings in relation to the application of section 9A of the 1987 Act to this particular case. However, it is clear from the Arbitrator’s ‘Statement of Reasons’ that other evidence was more compelling in his ultimate determination. It is fair to say that the Arbitrator’s ‘Statement of Reasons’, in particular that part dealing with the issue of “incapacity” do not include an analysis of the medical evidence on this issue. Nonetheless, it is clear that the Arbitrator has considered the whole of the medical evidence as the ‘Statement of Reasons’ attests. In paragraphs 38 to 57 inclusive, the Arbitrator summarised both parties’ submissions at length with reference to both the medical and lay evidence relied upon by the parties.
Whilst I accept QBE’s submission that the Arbitrator’s ‘Statement of Reasons’ does not specify “… any analysis of the medical evidence so far as it might be capable of a finding of total incapacity …” I do not regard that as fatal to his ultimate determination. His conclusions on the issue of ‘incapacity’ reflect an adequate consideration of the medical evidence in line with his obligations as set out in rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’).
The Vocational Evidence
QBE submits that: “The Arbitrator’s reasons contained no explanation for his conclusion at paragraph 65 that the Applicant could not discharge the ‘functional requirements’ indicated in the vocational report.”
In its evidence before the Arbitrator, Beards relied upon a number of reports from Empact Injury Management Services.
Those reports consisted of a vocational assessment report dated 9 August 2004, a Hand Upper Limb Assessment dated 6 September 2004 and a Return to Work Plan dated 18 October 2004.
At paragraph 65 of the ‘Statement of Reasons’, the Arbitrator stated:
“The Respondent contended that the Applicant was capable of obtaining work as a forklift driver, salesman or console operator. I have had regard to the various medical reports and the contents of the vocational report relied upon by the Respondent and note that leaving to one side the functional requirements indicated in the vocational report as requirements of such occupations (such requirements being of a nature I am not satisfied the Applicant could currently discharge) the Applicant does not currently hold the requisite licence required to operate a forklift, it appears also that he does not currently have the English and computer skills necessary to engage in console or sales activities.”
Insofar as the “functional requirements” of the various occupations referred to are concerned, it is necessary to look at the Empact reports in some detail. In the vocational assessment report dated 9 August 2004 completed by Vanessa Happ, Rehabilitation Counsellor, it was noted that “Mr Iljasov is currently certified unfit for work” and that at the time of the assessment, “… his thumb is currently strapped for support and is further supported by the use of a splint.” Ms Happ initially identified the option of sales assistant in mattress sales as suitable employment but rejected that because “… it is difficult to locate employment as a sales assistant without previous proven sales experience …” Mr Iljasov had no such experience. As a consequence of this, Ms Happ noted that the appropriate options to investigate were forklift operator and console operator. As to the position of forklift operator, Ms Happ noted that “… it is difficult to locate employment as purely a forklift operator, with most employers seeking employees who are able to operate a forklift with ability to perform some bar coding of stock and do some picking and packing activities.” It was noted that such occupations generally required “.. a lifting restriction of approximately 10 kilograms … therefore Mr Iljasov will need to increase his currently lifting capacity to meet the requirements of the position of forklift operator.”
It is noted that significant lifting restrictions had been placed on Mr Iljasov at that time.
Ms Happ also noted that “it was identified by employers that persons employed to operate a forklift are not required to operate a forklift for a complete shift. Duties are most often alternated with picking and packing, maintenance duties or yard hard duties.”
Given the restrictions noted on the medical certificates at this stage, it was not inappropriate for the Arbitrator to conclude that the functional requirements of a forklift operator were not able to be satisfied by Mr Iljasov at that time.
As to the requirements of console operator, the tasks of that job as described by Ms Happ, whilst not necessarily particularly heavy in a physical sense, nonetheless required considerable use of the hands in “measure air pressure … replenish oil, water and air levels … wash windscreens … collect spare parts …” Ms Happ concluded that “demand for this occupation is unstable, owing mainly to self service bowsers but also from a desire to cut operating costs by reducing driveway service …”
Ultimately, the Arbitrator concluded that the positions were not suitable on the basis that Mr Iljasov did not currently have a forklift licence, nor did he have the English and computer skills necessary to perform console or sales activities.
QBE’s submission that “… the only proper conclusion available on the weight of evidence is that the worker is fit for a wide range of non-repetitive tasks not involving lift excessive weights” is not born out. The vocational assessment report was clear in its terms as to the perceived difficulties Mr Iljasov may have in properly carrying out the requirements of the jobs identified.
It is noted that Dr Perla, who saw Mr Iljasov one week prior to the vocational assessment, considered that he had the following restrictions:
“(a) No forceful gripping with either left or right hand;
(b)He should avoid lifting of more than 3 to 4 kilograms”.
Dr Champion considered that Mr Iljasov was more severely restricted in that he was “unfit for any job involving significant manual activity.” Taking into account the whole of the evidence, including Mr Iljasov’s oral evidence at the hearing, it was open to the Arbitrator to conclude that he was not capable of performing the “functional requirements” of the occupations listed in the vocational report.
The ‘Suitable Employment Options’ Issue
QBE submits that Arbitrator’s conclusion at paragraph 65 of the ‘Statement of Reasons’ that Mr Iljasov was not suited to working as a forklift driver, salesman or console operator formed the basis of his finding of total incapacity and that:
“… The Arbitrator should not have so limited his enquiry but should have considered whether the worker was fit [for] a general range of non-repetitive suitable work generally. It is submitted that if he had done so, he would have concluded at the very least that the worker was fit for light factory work.”
QBE goes on to submit that the Arbitrator’s finding that Mr Iljasov “does not currently hold the requisite licence to operate a forklift” was incorrect since:
“… In fact the worker had obtained his forklift licence and had sought work as a forklift driver (see Case Closure Report from Empact). Not only had the worker obtained a licence he had commenced job seeking as a forklift driver which it is submitted is consistent only with him regarding himself as fit for work of some description prior to 3 February 2005.”
As to the first submission by QBE on this issue, it should be pointed out that no other evidence of “suitable employment” was before the Arbitrator other than the Empact reports obtained by QBE to which I have referred.
In his statement confirmed at the hearing on 10 October 2005, Mr Iljasov said:
“I do not know what work, if any, I could do now. My English is reasonable, but I have only a foreign high school education and all my experience in this country is in process work with the respondent. I have no computer skills and have trouble writing now because of my wrists. I do not think I could work as a waiter because that job involves a lot of carrying and gripping things.”
The Empact reports noted that Mr Iljasov completed the equivalent of his Higher School Certificate in Macedonia in1977, and then worked as a waiter in Macedonia from 1977 to 1987. It was in 1987, after arriving in Australia, that he commenced employment with Beards. It was noted that Mr Iljasov had no other additional training.
At the Arbitration hearing on 10 October 2005 counsel for QBE sought to cross examine Mr Iljasov. After some discussion, the Arbitrator permitted cross examination on the basis of the issues identified by counsel for QBE as “… timing of complaints, nature of work and residual capacity.” Pages 9 to 20 of the transcript cover that cross examination. Nothing was put to Mr Iljasov as to his residual capacity. No alternative occupations were suggested, and there was certainly no suggestion in his evidence, or indeed anywhere else, that he was “fit for light factory work”.
Thus the Arbitrator had before him the evidence contained in Mr Iljasov’s statement, and the Empact reports only. It was not the Arbitrator’s task to perform an inquisitorial role in any determination of what could be regarded as suitable employment in circumstances where there was evidence from both Mr Iljasov and from Empact on this issue.
The Arbitrator’s conclusions on this issue were appropriate in light of the evidence before him.
As to QBE’s submissions that Mr Iljasov “had obtained his forklift licence”, reference is made to the Empact Case Closure Report. The only reports from that organisation before the Arbitrator were those I have identified previously. The last report dated 18 October 2004 was described as a “Return to Work Plan”. It was noted at that stage that Mr Iljasov was currently certified unfit for work, but it was apparently proposed by his treating doctor, Dr Kuzmanovski that “… Mr Iljasov will be certified fit for work eight hours per day, five days per week, with no repetitive gripping of either hand. The report went on to note:
“This assessment identified that Mr Iljasov could physically undertake the tasks involved in undertaking work in a forklift driving capacity. Mr Iljasov has advised that he would be prepared to complete such training, and job seek for appropriate positions.”
The report recommended that Mr Iljasov participate in a training programme followed by a 12 week WorkCover approved work trial and an eight week job seeking skills training programme.
The Arbitrator had noted that the only evidence before him was contained in QBE’s Reply. Counsel for QBE at the hearing apparently sought leave to rely on some documents which were not in evidence, but the transcript records that they appear to be statements from witnesses at Beards’ premises. That would suggest that there was no additional evidence by way of vocational assessments that were sought to be relied upon by QBE.
If QBE is referring to the Empact report of 18 October 2004 as the “case closure report”, then its submission is inaccurate. If there is another report, it was not in evidence before the Arbitrator, and I have been unable to locate any such document in the Arbitrator’s file.
Nothing in Mr Iljasov’s statement, the contents of which were confirmed at the hearing on 10 October 2005 suggested that he had obtained a forklift driver’s certificate. Similarly, nothing it the cross examination of Mr Iljasov on 10 October 2005 suggested that he had obtained a forklift licence and commenced job seeking in that occupation. In those circumstances, the Arbitrator’s finding seems entirely consistent with the evidence before him.
Suitable Employment With The Employer
QBE submits that because Beards’ had refused to provide suitable employment to Mr Iljasov, the Arbitrator’s finding that Beards’ “… is of the view that given the restrictions advised by the Applicant’s treating doctors, there was no work available to the Applicant to carry out at the Respondent’s premises” and was “… Not able to provide any [work]” was inappropriate since “the employer may have had any number of reasons for not providing the worker with suitable employment and it is submitted that such an inference is not available. Even if it were, it takes the matter nowhere.”
That latter remark is probably most apt. There was no claim made by Mr Iljasov for benefits pursuant to section 38 of the 1987 Act. In the return to work plan from Empact dated 18 October 2004, it was noted that, following communication with Beards, “no suitable duties have been identified as suitable considering Mr Iljasov’s functional restrictions and capabilities.” The Arbitrator’s statements at paragraph 66 as quoted by QBE it its submissions were entirely in accord with QBE’s own evidence from Empact.
QBE goes on to submit that:
“The Arbitrator observed at paragraph 66 that ‘it was somewhat disingenuous for the (employer) to assert that the (worker) is capable of finding work elsewhere for which he may be suited or has experience given his restrictions when the (employer) was not able to provide any.’ This floored [sic] proposition appears to have formed part of the basis of the finding of total incapacity.”
Yet again, QBE’s own evidence, in the Empact report to which I have referred in the preceding paragraphs, was to the effect that Mr Iljasov’s “functional restrictions and capabilities” could not be accommodated at Beards.
QBE’s submissions to the Arbitrator focused on the question of injury by way of aggravation of a disease, with reliance on the opinions of Dr Perla and Dr Conolly, both of whom opined that any aggravation of an underlying arthritic ostoearthritic condition had ceased. Much was also made about the timing of complaints of symptoms in various parts of the body. On the question of capacity, counsel for QBE submitted as follows (page 29 transcript):
“The left thumb and the right wrist in themselves don’t prevent the Applicant from undertaking duties such as forklift driving, and you have seen reference to that, and it’s my submission that working in a forklift position, the Applicant would be fit for full duties in that regard, and he is a man who is capable of earning $1100.00 or thereabouts per week. In the mattress industry as a forklift driver, I submit to you that he would be capable of earning something approaching that.”
The Arbitrator’s statement is entirely consistent not only with the evidence before him, but with submissions made by QBE’s counsel. In other words, if QBE posited that Mr Iljasov was capable of working as a forklift driver “in the mattress industry” then, given the nature of Beards’ business, that such a position was not offered or indeed proposed by Empact in its return to work plan seems unusual. It was disingenuous of QBE’s counsel to suggest that Mr Iljasov was capable of finding work as a forklift driver at another mattress makers as opposed to Beards.
I cannot see on what basis QBE submits that this proposition was “flawed”. That it formed part of the basis of the finding of total incapacity seems true, but in line with the authorities to which I have referred earlier, and in particular the concept of a labour market “reasonably accessible” to Mr Iljasov, the Arbitrator’s finding was not inappropriate.
The Arbitrator’s Discretion
QBE makes a number of submissions on this point. Firstly, QBE submits that:
“… the finding of total incapacity at paragraph 64 [of the ‘Statement of Reasons’] was not open and a proper analysis of the law (which the Arbitrator did not undertake) and a proper view of the evidence could not permit such conclusion.”
QBE goes on to submit that:
“… Because the Arbitrator has over looked and misconceived crucial evidence his decision is floored [sic]. That fact, at least in part has led him to decide against the weight of evidence that this worker who has a significant residual work capacity is totally incapacitated. It is submitted that ‘it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully’ see Deputy President Fleming in Knight v Eyles Nominees [2004] NSWWCCPD 73 at paragraph 40”.
Much of QBE’s submissions seem to be founded on its view that the Arbitrator’s findings and conclusions were simply not open to him on the totality of the evidence before him. Just what “law” it is submitted that the Arbitrator has failed to properly analyse is not identified. At the outset, at paragraph 7 of the ‘Statement of Reasons’, the Arbitrator identified the issues in dispute as including whether or not Mr Iljasov was totally or partially incapacitated and this issue, under the heading “Incapacity total or partial” was dealt with in paragraphs 64 to 68 inclusive of the ‘Statement of Reasons’.
It is perhaps fair to say that on one view of the evidence, it was open to the Commission to find that Mr Iljasov was indeed partially incapacitated for work. However, my task on appeal is not to further debate issues raised or evidence submitted before the Arbitrator, but is concerned with claimed error, of law, fact and/or discretion, and not with the hearing of evidence and determination of the matter at first instance.
The Arbitrator provided detailed and coherent reasons for his determination. It was open to him, on the evidence before him, particularly that of Mr Iljasov, Dr Champion, and indeed aspects of the vocational reports provided by Empact to conclude that Mr Iljasov was “totally incapacitated from obtaining employment in a market reasonably assessable [sic] to him …” In his statement, Mr Iljasov clearly identified work options that had been raised and the reasons why he considered he was incapable of carrying out those duties. As Dr Champion pointed out, particularly given the Arbitrator’s acceptance of the severity of Mr Iljasov’s injuries, Mr Iljasov was in “a major predicament since he has few transferable skills …”
The task of the Arbitrator was to determine whether Mr Iljasov’s “physical defects” made his labour unsaleable in any market reasonably accessible to him.
Notwithstanding clear evidence that Mr Iljasov had some residual earning capacity, the Arbitrator’s determination that Mr Iljasov was totally incapacitated within the meaning of section 36 of the 1987 Act was sustainable in light of other evidence before him. If the Arbitrator’s task was confined to a consideration of the medical evidence alone, I would agree with QBE’s submission that his ultimate conclusions were against the weight of that evidence. However, some of the medical evidence, but particularly the lay evidence, was quite compelling such that on review of the Arbitrator’s determination, I can see no good grounds to interfere with it.
Again, the “crucial evidence” QBE maintains the Arbitrator overlooked and misconceived is not identified.
As Deputy President Fleming said in Knight v Eyles Nominees Pty Limited t/as Process Forest Products [2004] NSWWCCPD 73 (‘Knight’s case’) “Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious that discretion has so miscarried that it has not been exercised fairly and lawfully.” In that particular case, the Arbitrator made a determination ‘on the papers’ and Deputy President Fleming concluded that the Arbitrator had failed to accurately set out the evidence of a number of reports, and gave a selective account of the evidence of other doctors. Deputy President Fleming concluded that it was unfair and unreasonable of the Arbitrator to make a determination on the opinion of one doctor as against the totality of the other evidence that was before her, and that amounted to an error of discretion.
The errors of “discretionary judgment” to which QBE refers must be such that, as Deputy President Fleming again said in Knight’s case: [para 37] “… but for it, a different decision would have been made.” The Arbitrator has set out in detail his reasons and the evidence upon which he relied in making his determination. His rejection of the “suitable duties” to which QBE referred was adequately explained by him in paragraph 65 of his ‘Statement of Reasons”. Mr Iljasov’s evidence was detailed as to what he could physically do, not only in the work place, but at home and elsewhere. The realities of the labour market were explained to some extent in the reports from Empact which clearly set out restrictions on work solely as a forklift driver, noting that physical packing, lifting or carrying was regularly required
I cannot be satisfied that, but for any alleged error in discretion by the Arbitrator, a different decision would have been made. There is no basis to suggest that the Arbitrator in any way dealt unfairly with QBE’s evidence. It provided extensive material to the Arbitrator in support of its case and indeed, was afforded the opportunity to cross examine Mr Iljasov on these issues.
In all the circumstances, I do not consider that the Arbitrator has failed to fairly and lawfully exercise his discretion in his determination of Mr Iljasov’s entitlements.
As the Commission pointed out in Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34, mere disagreement with the outcome of the proceedings cannot form the basis for appeal:
“Where the parties are accorded procedural fairness and the Arbitrator has taken ‘the relevant factors into account and the discretion has been exercised fairly and lawfully’, it is not appropriate, on review by a Presidential Member, to interfere with the Arbitrator’s decision.”
The Arbitrator’s approach to his task of assessing incapacity was consistent with the principles enunciated in sections 33 and 36 of the 1987 Act and the authorities to which I have referred.
The Adequacy of Reasons Error
QBE submits that the Arbitrator has failed to provide adequate reasons to support his findings on the issue of incapacity and “… failed to provide a sufficient explanation for his conclusion and demonstrate that he had made the appropriate enquiry …”:
An Arbitrator has a statutory duty to provide adequate reasons for a decision (section 294(2) of the 1998 Act and Rule 73 of the Rules). The reasons given must be capable of conveying adequately to the parties the basis upon which the Arbitrator came to his decision as a whole. As Deputy President Fleming said in Mayne Health Group v Sandford [2002] NSWWCCPD 6”.
“The content of ‘Statements of Reasons’ for decision … should not on review be ‘construed minutely and finely with an eye keenly attuned to the perception of error’ ... to succeed on the ground of ‘inadequate reasons’ it will be necessary for the appellant employer to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”
In Soulemezis v Dudley (Holdings) Pty Limited [1987] 10 NSWLR 247 to which QBE has referred in its submissions, Mahoney JA said:
“A judge is not required to make a finding in respect of every fact leading to the final conclusion of fact … nevertheless a judge must distinguish between the essentials and the peripherals … reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted … it is necessary that the essential grounds upon which the decision rests should be articulated.”
Failure to give adequate reasons constitutes an error of law. In the present case, in my view the Arbitrator has adequately addressed the essential elements of the claim and all of the evidence before him. Reading the Arbitrator’s ‘Statement of Reasons’ as a whole, I consider that they adequately convey to the parties the basis upon which the Arbitrator came to his decision, and are, particularly in the context of the objectives of the Commission and the obligations imposed upon Commission Arbitrators, adequate in the circumstances of this case.
FRESH EVIDENCE
QBE indicated in his its appeal that it sought to rely on fresh evidence. There are no details whatsoever of that evidence, but annexed to the appeal application are two WorkCover medical certificates from Dr Kuzmanovski, one dated 16 December 2005 and the other 19 January 2006. They repeat Dr Kuzmanovski’s view that Mr Iljasov is fit for suitable duties.
The Rules require that parties seeking to adduce fresh evidence must provide a schedule of the evidence, the reasons why it was not given in proceedings before the Arbitrator and submissions as to why that evidence should be admitted. Clearly, the documents post date the arbitral hearing, but there are simply no submissions as to why this evidence should now be admitted. In any event, it does no more than repeat Dr Kuzmanovski’s opinion as to Mr Iljasov’s physical capabilities.
As I have said, the Arbitrator’s decision focused primarily on other aspects of the “incapacity” argument, namely, Mr Iljasov’s ability to obtain employment in a labour market reasonably accessible to him.
In the absence of submissions as to why the evidence should be admitted, I see no basis upon which it should now be admitted, and it is rejected.
CONCLUSION
The Arbitrator’s determination was consistent with the totality of the evidence before him. The Arbitrator has made valid findings of fact based on both written and oral evidence before him and his reasons adequately reflect those findings.
It is clear that the Arbitrator has taken into consideration Mr Iljasov’s skills and education as described by both Mr Iljasov in his statement and referred to in the vocational reports, in reaching his conclusion that Mr Iljasov should be regarded as totally incapacitated for employment within the meaning of sections 36 and 37 of the 1987 Act.
Whilst there was considerable evidence of a medical nature to suggest that Mr Iljasov was only partially incapacitated for employment, the Arbitrator’s determination was based primarily on other factors relevant to that determination namely, in a practical sense Mr Iljasov’s physical capacity for obtaining work in a labour market reasonably accessible to him.
QBE has failed to demonstrate any errors of law, fact and/or discretion to justify revocation of the Arbitrator’s decision.
DECISION
The decision of the Arbitrator dated 8 February 2006 is confirmed.
COSTS
Beards in the interests of QBE is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
13 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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