A2Z Formwork Pty Limited v Ayoub
[2006] NSWWCCPD 93
•19 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:A2Z Formwork Pty Limited v Ayoub [2006] NSWWCCPD 93
APPELLANT: A2Z Formwork Pty Limited
RESPONDENT: Omran Ahmed Ayoub
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC21255-04
DATE OF ARBITRATOR’S DECISION: 14 April 2005
DATE OF APPEAL DECISION: 19 May 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence for weekly payment award; section 38 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: QBE In-House Legal
Respondent: Michael E Bradstreet
ORDERS MADE ON APPEAL: 1. Paragraph 2 of the decision of the
Arbitrator dated 14 April 2005 is revoked and the following substituted:
(2)The Respondent to pay the Applicant’s weekly benefits under section 38 of the Workers Compensation Act 1987, noting the Applicant has a dependant wife and two dependant children.
2. Paragraphs 1, 3 and 4 of the Arbitrator’s decision are confirmed.
3. A2Z Formwork Pty Limited is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Omran Ahmed Ayoub (‘Mr Ayoub’) was employed by A2Z Formwork Pty Limited (‘A2Z’), as a formworker. On 14 May 2004, whilst at work, he was injured when he was struck on his back by pieces of metal dropped from a forklift.
Mr Ayoub has remained off work since. He appears to have been paid weekly compensation benefits by A2Z’s insurer, QBE Workers Compensation (NSW) Limited (‘QBE’) up to 23 August 2004.
On 9 August 2004, QBE wrote to Mr Ayoub advising that “… liability has been denied…” and that “… we are required to pay you wages upon receipt of an appropriate medical certificate, until 23/8/2004”.
On 31 December 2004, Mr Ayoub filed an ‘Application to Resolve a Dispute’ in the Commission claiming weekly benefits from 24 August 2004 to date and continuing for himself, a dependant wife and two dependant children.
On 15 February 2005 A2Z filed a Reply and an Amended Reply on 1 March 2005. A2Z listed the issues in dispute as “fitness for work, section 9A, section 68A [Workers Compensation Act 1987]”.
The matter was listed for conciliation/arbitration hearing on 31 March 2005. On that occasion, Mr Ayoub gave oral evidence.
On 14 April 2005, a ‘Certificate of Determination’ with accompanying ‘Statement of Reasons’ issued.
The determination of the Arbitrator was as follows:
“1. I order the Respondent pay the Applicant’s medical and related expenses under s60 of the Act in the sum of $486.60 for treatment to date and continuing.
2. I order the Respondent to pay the Applicant’s weekly benefits under s40 of the Act, noting the Applicant has a dependant wife and two dependant children.
3. I order the Respondent pay weekly benefits as follows:
(a) for the period 14 August 2004 – 13 November 2004 $800.00 per week.
(b) for the period 14 November 2004 to date and continuing $544.20 per week.
4. I order the Respondent pay the Applicant’s costs to be assessed if not agreed.”
On 11 May 2005, A2Z filed an Application to ‘Appeal against Decision of Arbitrator’. A2Z submits that, inter alia, the Arbitrator erred when he concluded that Mr Ayoub was “totally incapacitated for work” but ordered A2Z to pay him weekly compensation under section 40, failed to give reasons for the conclusion that Mr Ayoub was entitled to weekly benefits and awarded weekly compensation based on total incapacity when no such claim was made.
On 3 June 2005, Mr Ayoub filed a ‘Notice of Opposition to the Appeal’. Briefly, Mr Ayoub submits that the Arbitrator’s determination was consistent with the available evidence before him and claims that the Arbitrator “… pursuant to a typographical error or the like, inserted ‘s40’ … in lieu of ‘s38’.”
LEAVE TO APPEAL
The appeal was filed within the time limits prescribed by section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Both parties submit that the appeal is not suitable for a determination on the papers. Mr Ayoub in his ‘Notice of Opposition’ merely says that he “… agrees with, and adopts, the submissions of [A2Z]”.
A2Z submits that if leave to appeal is granted, there should be an oral hearing. A2Z notes that at the time of filing the appeal, it did not have a transcript of the hearing, noting that Mr Ayoub gave evidence and was cross-examined at that time. A2Z goes on to state that:
“… in matters where a Determination is not made by an arbitrator ‘on the papers’ and the appeal proceeds by way of review once an error of law and/or fact has been found natural justice and procedural fairness dictate that there should be an oral hearing”.
Further, A2Z submits that: “… an oral hearing will enable both parties to deal with the other’s competing submissions in a manner which is more satisfactory than exchanging written submissions in reply possible [sic] on more than occasion.”
The Commission file records that a copy of the transcript was forwarded to both parties on 28 June 2005. No further submissions have been received by either party since that date.
My task on appeal is to determine whether or not there has been any legal, factual or discretionary error made by the Arbitrator. 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 all the material before the Arbitrator, the transcript, and both parties’ detailed submissions on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, in accordance with Practice Direction No. 1, and that this is the appropriate course in the circumstances.
THE ISSUES IN DISPUTE
The principal issue on appeal seems to be that the Arbitrator’s finding that Mr Ayoub was “totally incapacitated for work” was inconsistent with his ultimate determination and award pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Arbitrator however identified section 38 of the 1987 Act as being an ‘issue in dispute’ at paragraph 8 of the ‘Statement of Reasons’. He went on to note at paragraph 16 of those Reasons that “the claim is therefore for partial incapacity, deemed total”.
The real question to be determined is whether the Arbitrator’s reference to “total incapacity” can be construed as a reference to the provisions of section 38, as opposed to sections 36 and 37 of the 1987 Act, such that his award pursuant to section 40 can be interpreted as merely an error on his part.
THE GROUNDS OF APPEAL
A2Z lists six grounds of appeal as follows:
“1. The Arbitrator erred when he failed to make a finding of fact regarding whether or not the Respondent/Worker’s evidence was reliable.
2. The Arbitrator erred when he failed to apply the correct standard of proof in relation to the issue of whether or not the Respondent/Worker’s work related symptoms had persisted past the date when he was examined by Dr Muratore.
3. The Arbitrator erred when he failed to give reasons for the conclusion that the Respondent/Worker was entitled to weekly benefits (paragraph 34).
4. The Arbitrator erred when he concluded that the Respondent/Worker was ‘totally incapacitated for work’ (paragraph 38.2).
5. The Arbitrator erred when he ordered the Respondent to pay the Applicant weekly compensation under s40.
6. The Arbitrator erred when he awarded weekly compensation based on total incapacity (ss.36 and 37) when no such claim was made.”
SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Reliability of Evidence’ Issue
The objectives of the Commission provide for a fair, timely and cost effective resolution of disputes. An Arbitrator is not required to make specific findings on every issue in the proceedings, but must apprise the parties of the broad outline and essential grounds upon which a decision is based. [see Mahoney JA in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247].
In this case, the Arbitrator was clearly cognizant of A2Z’s submission that Mr Ayoub’s evidence was not “reliable”. At paragraph 24 of the ‘Statement of Reasons’, when summarising both parties oral submissions, he noted that Dr Muratore, who examined Mr Ayoub at the request of QBE, in his report dated 22 July 2004 opined that Mr Ayoub’s “… presentation at the time of examination was inexplicable and there was marked exaggeration and embellishment.”
The Arbitrator went on to note at paragraph 25 A2Z’s submission that:
“… There were further examples of lack of candour and/or reliability. For example, the Applicant indicated that he spoke to his employer hundreds of times after the accident in an effort to be re-employed on light duties”.
He noted at paragraph 26:
“This was inconsistent with his statement which referred to one conversation only. It was also inherently unlikely or improbable that there were so many conversations. All in all, it was submitted I could not be comfortably satisfied that the Applicant was truthful and reliable and that he had any ongoing disability as a result of this accident precluding [him] from working.”
The transcript records Mr Ayoub as having spoken to his employer about light duties in 2004 “200 times, probably more” (page 20 transcript). It was clear from the transcript however that there were difficulties with interpretation. Some questions seemed to have been answered by Mr Ayoub without the assistance of the interpreter, and some by the interpreter. This may be simply be an error in the transcribing.
Earlier, the Arbitrator had asked Mr Ayoub if he had sought suitable duties from his employer to which he responded: “I told them a few times but they haven’t responded … I tried many times but he [the employer] declined all my calls”. (See page 13 transcript).
The Arbitrator at paragraph 28 of his ‘Statement of Reasons’ concluded:
“Whilst the Applicant’s Statement only referred to one conversation with his employer, it was not inconsistent that there were others. The Statement clearly was a running commentary taken after a number of conferences. The Statement merely reflected those matters discussed at the time rather than being a comprehensive, unified summary of relevant matters. I accept this submission, as is obvious from reading the Statement.”
At paragraph 34, the Arbitrator concluded: “I accept that he has made reasonable attempts to find alternate work and at present none seems available.”
This conclusion was open to the Arbitrator on the evidence before him. Mr Ayoub’s reference to “200” conversations with his employer may well have been an exaggeration, or the result of interpretation difficulties. These matters were the subject of lengthy submissions by A2Z’s Counsel before the Arbitrator. The issue for the Arbitrator to determine was whether Mr Ayoub had sought suitable employment such as to entitle him to an award pursuant to section 38 of the 1987 Act.
The Arbitrator was clearly aware of the submissions by A2Z as to the reliability of this evidence, but the obvious inference from the Arbitrator’s conclusion was that he accepted, despite some inconsistent responses from Mr Ayoub, that he had nonetheless made “reasonable attempts” to find suitable employment. As the Arbitrator pointed out at page 30 of the transcript:
“… You’ve got an argument … on credit and believability, but … we have uncontested evidence that he had applied one occasion, or at least one occasion, for light duties with Mr Loulach [the employer] and it wasn’t available, and that doesn’t appear to have been disputed.”
I cannot see any legal, factual or discretionary basis upon which it could be argued that the Arbitrator in some way “erred” in failing to make a specific finding as to the reliability of Mr Ayoub’s evidence.
The ‘Standard of Proof’ Issue
A2Z submits that the Arbitrator erred “… when he failed to apply the correct standard of proof in relation to the issue of whether or not the Respondent/Worker’s work related symptoms had persisted past the date when he was examined by Dr Muratore.”
This submission is really no more than a statement to the effect that the Arbitrator should have accepted the opinion of Dr Muratore.
The medical evidence in this particular case was scant indeed. The Arbitrator had before him a series of radiological reports, two reports from Mr Ayoub’s treating specialist, Dr Maniam, both dated 22 October 2004, and two reports from Dr Muratore, A2Z’s qualified orthopaedic specialist, dated 22 July 2004 and 28 July 2004 respectively. True it was, as A2Z submits, that Dr Muratore opined that:
“In summary, this man may have sustained generalised soft tissue injuries in the incident in question. I believe he has recovered from these and his presentation to me on 14 July 2004 could not be explained by the pathology demonstrated on the MRI performed on 15 July 2004.”
The Arbitrator weighed this medical evidence in paragraphs 31 to 33 of his ‘Statement of Reasons’ as follows:
“31. I accept Dr Muratore’s view that the annular tear is not convincingly attributable to this accident and that the Applicant’s complaints were wider spread than L5/S1.
32. However, that is not an end to the matter. Dr Muratore accepts that the accident caused soft tissue injuries to the low back [and] he felt it unlikely that symptoms would persist. I am not convinced that this correct.
33. The applicant was regularly complaining of low back pain. He was accepted as such by Dr Maniam who gave him a medical certificate on 14 August 2004 permitting him to return to work, but on light duties and to avoid lifting, bending and prolonged sitting or standing. The employer was unable to accommodate his injured worker with these restrictions. I am satisfied that the applicant sustained low back injuries in this work accident and has continued to be restricted in his work capacity.”
Given that the Arbitrator was confronted with two competing medical opinions, it was open to the Arbitrator to accept the view of Dr Maniam, Mr Ayoub’s treating specialist. Whilst not particularly detailed, I consider his reasons adequate given his ultimate finding that Mr Ayoub was indeed fit for some work but with restrictions.
The ‘Failure to Give Reasons’ Issue
A2Z submits that the Arbitrator erred “… when he failed to give reasons for the conclusion that the Respondent/Worker was entitled to weekly benefits” (paragraph 34)”. However, the Arbitrator clearly set out his reasoning in paragraphs 31 – 33 referred to above. As Deputy President Fleming said in Mayne Health Group v Sandford [2002] NSWWCC PD 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 inadequacies sufficiently demonstrate that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the Application.”
Moreover, an Arbitrator need not set out lengthy written reasons to comply with the Act and the Rules. This would be unreasonable and inconsistent with the objectives of the Commission (see Liverpool City Council v Trovato [2004] NSWWCC PD 15).
A2Z has failed to establish that the Arbitrator’s reasons demonstrate that he has not fairly and lawfully determined Mr Ayoub’s Application, and this ground of appeal therefore fails.
The ‘Total Incapacity’ Issue
A2Z submits that the Arbitrator “… erred when he concluded that the Respondent/Worker was ‘totally incapacitated’ (paragraph 38.2)”.
The Arbitrator’s summary of “the resolution of the issues in dispute” is set out in paragraph 38 of the ‘Statement of Reasons’ as follows:
·“On 14 May 2004, Omran Ahmed Ayoub received an injury to his low back when he was bending over undertaking work duties when he was struck by heavy pieces of metal which fell from a forklift truck arising out of or in the course of his employment as a formworker with A2Z Formwork Pty Limited.
·Omran Ahmed Ayoub was totally incapacitated for work as a result of his injuries from 14 August 2004 to date and continuing.
·Omran Ahmed Ayoub’s probable weekly earnings, but for the injury, had he continued to be employed in the same or same comparable employment, are $800.00 per week.
·He did seek suitable employment, and was not able to obtain it.”
Point 2, read alone, is clear in its terms. The Arbitrator’s finding at point 4 that: “He did seek suitable employment, and was not able to obtain it” is similarly clear.
The question is, is it reasonable to draw the inference that the Arbitrator was referring to ‘partial incapacity, deemed total’ pursuant to the provisions of section 38 of the 1987 Act from those statements?
Whilst there is no reference in the body of the Arbitrator’s ‘Statement of Reasons’ to section 38, he has, as I have said, identified it as an issue “… in dispute in relation to the claim for weekly benefits …” in paragraph 8 of the ‘Statement of Reasons’.
The transcript is of considerable assistance on this point. Counsel for A2Z made lengthy submissions to the Arbitrator at pages 24 to 33 inclusive of the transcript. Pages 28 to 33 deal solely with the issue of Mr Ayoub’s “attempts” to obtain suitable employment. At page 31, Counsel for A2Z submitted “… to succeed under section 38 you have to be satisfied that this gentleman is genuinely interested in performing light work.”
Mr Ayoub’s solicitor made submissions on this issue at pages 38 to 40 of the transcript.
The Arbitrator said at page 30 of the transcript “… if this issue in relation to Mr Loulach [the employer] is a hot issue in relation to credit, why didn’t we have a statement from Mr Loulach on the Respondent’s case?” A2Z’s response was that “… all that we were on notice of by way of the statement was one application.”
The Arbitrator then said to A2Z’s Counsel:
“… You’ve got an argument … on credit and believability … we have uncontested evidence that he had applied on one occasion, or at least one occasion, for light duties with Mr Loulach and it wasn’t available, and that doesn’t appear to have been disputed.”
A2Z’s Counsel replied: “No.”
There is no doubt that the principal issue occupying A2Z at the arbitration hearing was whether or not Mr Ayoub’s evidence as to his attempts to obtain suitable employment was sufficient to entitle him to an award pursuant to section 38 of the 1987 Act. The Arbitrator was clearly aware of that. At page 31 of the transcript in response to A2Z’s Counsel he stated:
“… You were entitled to raise the submission, as you very fairly have, about credibility and believability by reason of the way the worker put himself across compared to his statement, and I understand that submission. I understand that submission, but at the end of the day there was a point that has to be at some stage reviewed, which is the fact that unless you are going to say that his evidence is of such exaggeration that I couldn’t accept a word he had to say, we have no evidence to rebut at least the fact that on one occasion he did, on 28 August.”
Counsel for A2Z replied: “Correct”.
In other words, A2Z was, and is, well aware, as the Arbitrator pointed out at paragraph 16 of the ‘Statement of Reasons’, that “the claim is therefore for partial incapacity, deemed total.” Further, at paragraph 29 the Arbitrator noted:
“The fact was that the Applicant’s assertion that he raised possible employment on light duties was not put in issue. It was submitted I should accept the Applicant on this point, with the legal consequence that as he had applied for light duties from his pre-accident employer as these were not available, there is a partial incapacity deemed total.”
The logical inference in these circumstances is that the Arbitrator’s reference to “total incapacity” was in the context of section 38 of the 1987 Act.
The ‘Section 40’ Issue
A2Z submits that the Arbitrator “… erred when he ordered the Respondent to pay the Applicant weekly compensation under s40.” Given the Arbitrator’s findings on the evidence before him, this is clearly an error. Is it an obvious error? Section 294(3) of the 1998 Act provides that:
“If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing a replacement certificate or statement to correct the error.”
What constitutes an ‘obvious error’ is defined in Practice Direction No. 4 as “… A factual error that is apparent on the face of the document … it does not relate to the basis upon which the substantive decision or assessment was made, nor to the substance of any such claim or assessment.” (See Grafton Aged Care Home Pty Limited v Wilkes [2004] NSWWCC PD 16).
On one view, this is an error that does indeed go to a substantive issue in the proceedings, in that it is relevant to the nature of the claim for weekly benefits. However, in the context of the Arbitrator’s whole ‘Statement of Reasons’ which, as I have said, clearly demonstrate that the claim was brought pursuant to section 38 of the 1987 Act, I consider that it is a factual error apparent on the face of the document. Were it not for the matters raised in the preceding paragraphs on the section 38 issue, together with the transcript, it may well have been more properly argued that it was indeed an error that went to the substance of the claim.
Further, it should be noted that the amounts set out in paragraph 3 of the Arbitrator’s Determination clearly reflect an award pursuant to section 38, not section 40 of the 1987 Act. Mr Ayoub’s pre-injury earnings were agreed at $800.00 per week. The sum of $544.20 is the relevant statutory rate as at November 2004 for a worker with three dependants.
In the circumstances, I consider it an ‘obvious error’ which could have been rectified by either party by application to the Registrar in accordance with Practice Direction No. 4.
The Sections 36 and 37 ‘Total Incapacity’ Issue
This has been dealt with to some extent in the preceding paragraphs. It is clear from the Arbitrator’s findings at paragraph 33 of the ‘Statement of Reasons’ that he accepted that Mr Ayoub suffered back pain which permitted him: “… to return to work, but on light duties and to avoid lifting, bending and prolonged sitting or standing.”
At paragraph 34 of the ‘Statement of Reasons’ he concluded:
“Accordingly, I am of the view that the Applicant is entitled to weekly benefits. I accept that he has made reasonable attempts to find alternate work and that presently none seems available. Perhaps the Workers Compensation Insurer may be in a position to assist with redeployment.”
There is no reference in the Arbitrator’s ‘Statement of Reasons’ to the effect that Mr Ayoub was totally incapacitated or totally unable to engage in employment within the meaning of sections 36 and 37 of the 1987 Act.
As Mr Ayoub points out in his submissions, he “… did not present the case on the basis that he was totally incapacated for work, but rather that he was entitled to compensation pursuant to section 38, thus his partial incapacity is deemed total.” This is also reflected in the Arbitrator’s questions to Mr Ayoub at pages 13 to 15 of the transcript.
Moreover, as I said earlier, it was quite clear from A2Z’s submissions in reference to section 40 of the 1987 Act, that the Arbitrator’s findings and reasons, read in context, do not support the submission that the award was in accordance with either section 36 or 37, such that there has been no error by the Arbitrator on this issue.
CONCLUSION
The logical and reasonable inference from the Arbitrator’s ‘Statement of Reasons’ read with the transcript is that the award of weekly compensation should have been made pursuant to section 38 of the 1987 Act.
The medical and other evidence was sufficient to support this finding, the Arbitrator’s reasons were adequate in line with the authorities to which I have referred, and his decision reflected a fair and proper exercise of his discretion.
The Arbitrator has erred in describing the award as pursuant to section 40 of the Act, but I regard that as an obvious error within the meaning of section 294 of the 1998 Act and Practice Direction No. 4.
As a matter of law, Mr Ayoub would not be entitled to an award of $800.00 per week pursuant to section 40 given the ‘capping’ provisions set out in section 40(5).
Whilst the Arbitrator has not made any error of law, fact or discretion in his reasons, his formal order entering an award in favour of Mr Ayoub pursuant to section 40 of the 1987 Act does not accurately reflect the findings he made. It is an error which must be corrected on appeal. The Arbitrator’s finding of fact that Mr Ayoub had sought suitable employment as set out in paragraph 38 of his ‘Statement of Reasons’ means that the appropriate order is an award pursuant to section 38 of the Act.
DECISION
Paragraph 2 of the decision of the Arbitrator dated 14 April 2005 is revoked and the following substituted:
(2)The Respondent to pay the Applicant’s weekly benefits under section 38 of the Workers Compensation Act 1987, noting the Applicant has a dependant wife and two dependant children.
Paragraphs 1, 3 and 4 of the Arbitrator’s decision are confirmed.
COSTS
The appeal has been unsuccessful save for the ‘obvious error’ in the description of the award referred to above. In those circumstances, I order A2Z to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
19 May 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.
ASSOCIATE
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