Adecco Industrial Pty Limited v Bilaver
[2009] NSWWCCPD 77
•9 July 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Adecco Industrial Pty Limited v Bilaver [2009] NSWWCCPD 77 | ||||
| APPELLANT: | Adecco Industrial Pty Limited | ||||
| RESPONDENT: | Frank Bilaver | ||||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-9211/08 | ||||
| ARBITRATOR: | Ms S Duncombe | ||||
| DATE OF ARBITRATOR’S DECISION: | 6 April 2009 | ||||
| DATE OF APPEAL DECISION: | 9 July 2009 | ||||
| SUBJECT MATTER OF DECISION: | Partial incapacity; weekly compensation; section 40 Workers Compensation Act 1987. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Gillis Delaney Lawyers | |||
| Respondent: | Eugene Lepore & Associates | ||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 6 April 2009 is confirmed. The appellant employer is to pay the respondent worker’s costs, which I assess at $2,200.00 plus GST. | ||||
BACKGROUND
The appellant, Adecco Industrial Pty Limited (‘Adecco’), is a labour hire company. It placed the respondent, Mr Bilaver, on its books in 2006. In the first few months it found work for him at different locations on an “on call” basis, but not working a full week. After a few months, Mr Bilaver was placed with CSR Fibre Cement (‘CSR’) at Wetherill Park as a forklift driver/factory hand, a position he started in or about March 2007.
On 31 May 2007, Mr Bilaver fell while working at CSR’s premises and sustained a fracture at the base of the fifth metatarsal in his right foot. The occurrence of the injury is not disputed and the claim was accepted.
On 17 September 2008, Mr Bilaver claimed lump sum compensation in the sum of $11,000.00 in respect of an 8 percent whole person impairment as a result of his injury. That claim was denied. Liability for continuing weekly compensation was also denied by QBE Workers Compensation (NSW) Limited (‘QBE’) by notice dated 14 November 2008 on the grounds that Mr Bilaver’s treating physicians had certified him fit to resume his pre-injury duties from 30 April 2008.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 19 November 2008, Mr Bilaver sought weekly compensation from 1 May 2008 to date and continuing together with lump sum compensation in respect of an 8 percent whole person impairment.
Adecco disputed liability on the grounds set out in its Notice dated 14 November 2008.
On 26 February 2009, Dr McGroder, approved medical specialist (‘AMS’), assessed Mr Bilaver to have a 1 percent whole person impairment as a result of his work injury and issued a medical assessment certificate (‘MAC’) to that effect.
The matter was listed for hearing before Arbitrator Duncombe on 12 March 2009. Mr Bilaver gave oral evidence and was cross-examined and the parties made submissions through their respective counsel. In a reserved decision delivered on 6 April 2009, the Arbitrator found in favour of Mr Bilaver. The Commission’s Certificate of Determination dated 6 April 2009 records the following formal orders:
| “The Commission determines: |
| 1. That the Respondent pay the Applicant pursuant to s.66 of the 1987 Act the sum of $1375 in respect of 1% Whole Person Impairment as a result of injury on 31 May 2007 and in accordance with the Medical Assessment Certificate of Dr G. McGroder dated 26 February 2009. 2. That the Respondent pay the Applicant weekly compensation pursuant to s.40 of the 1987 Act at the rate of $238.80 per week from 1 May 2008 to date and continuing in accordance with the provisions of the 1987 Act. |
| 3. That the Respondent pay the Applicant’s expenses pursuant to s.60 of the 1987 Act on production of accounts, receipts and/or HIC charge. 4. That the Respondent pay the Applicant’s costs as agreed or assessed.” |
By an appeal filed on 30 April 2009, Adecco seeks leave to appeal the Arbitrator’s determination that it pay weekly compensation to Mr Bilaver from 1 May 2008 to date and continuing.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no issue that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)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 regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Mr Bilaver was born in 1970 and is currently 39 years of age. He completed his schooling to the equivalent of year 12. His first job was in the construction industry as a labourer, a job he continued for about four years. He then worked for Dairy Farmers for approximately ten years as an operator and forklift driver. He was made redundant with Diary Farmers in about 2006 and he then started his association with Adecco.
For his first few months with Adecco he was placed with different employers as a forklift driver on call, but not working a full week. After a few months he started work with CSR in or about March 2007 as a forklift driver/factory hand.
On 31 May 2007 he was carrying off-cuts to a rubbish bin when he slipped on a roll of plastic and fell heavily to the ground injuring his right foot sustaining a fracture to the fifth metatarsal. At the direction of CSR, Mr Bilaver came under the care of Dr Foo, general practitioner at Wetherill Park. Dr Foo referred him to Dr Burrow, shoulder, elbow and knee surgeon at Liverpool.
Dr Foo certified Mr Bilaver to be fit for pre-injury duties on 30 April 2008.
In his statement dated 30 October 2008, Mr Bilaver said:
“23 I continue to have pain in my right foot and I cannot wear work boots or heavy shoes. I can wear ordinary shoes for up to 2 hours before my foot becomes painful;
24 If I stand on my feet too long I get a sore foot;
25 I can stand on my feet for 30-45 minutes before I need to sit down for a short period of 10 minutes;
26 I cannot put much pressure on my right foot;
27 I cannot lift heavy objects.”
Mr Bilaver commenced part-time employment with AIM Bricklaying Pty Limited on 5 October 2008. That is a company in which his father had a one third share. Mr Bilaver worked up to 12 hours per week doing estimating and pricing for bricklaying jobs. He was paid $250.00 gross per week (an hourly rate of $21.00 per hour) and continued that work until 30 November 2008, when the company ceased business.
Mr Bilaver’s oral evidence may be summarised as follows:
(a)Mr Bilaver was aware that Dr Burrow declared him fully fit to return to normal duties on 25 March 2008;
(b)in respect of Dr Foo’s certificate of 30April 2008, Mr Bilaver said that his case manager from QBE, Mr Stephen Martin, was present when the certificate was issued. Mr Bilaver added: “I agreed in front of the case manger and doctor as long as Adecco would give me a go so I can try and work we’ll give it a go, and that is why the doctor gave me the certificate in front of Mr Martin. Okay?” (T15.56). Mr Martin then rang Adecco and “made sure work was guaranteed to me just to see if I could work and put a steel-cap boot on” (T16.5);
(c)Mr Bilaver denied that he was then offered work at Linfox (T16.9) and said that he called Adecco four weeks straight and was told, “It’s quiet at the moment. We can’t offer you nothing” (T16.13);
(d)Mr Bilaver could not recall having denied an offer of employment because he had a dentist’s appointment to attend and maintained for the first four weeks after “the medicals” that he was given the same answer “there is no work available” (T16.50) and that he had to join other agencies to find work;
(e)he disagreed that since 30 April 2008 he had been fit for full hours in his pre-injury duties (T18.11). He could not answer whether he would be fit for full-time duties because no one had offered him that work, and
(f)he agreed that if full-time estimating had been available in his father’s company, he would have given it a go (T18.36).
Medical Evidence
A further x-ray on 17 July 2007 revealed an overlap at the margins at the fifth metatarsal fracture site with an impression that there was non-union between the fragments. The final x-ray in evidence (dated 13 August 2007) revealed a “mildly comminuted fracture through the proximal end of the 5th metatarsal.” The fracture line entered the tarsometatarsal joint and there was “little evidence of callus formation” at that stage and there was a complete bone union radiologically.
Dr Burrow reported to Dr Foo on 14 August 2007 that Mr Bilaver’s fracture had “finally clinically and radiologically healed”. A month before the report, Mr Bilaver had been walking 40 minutes a day and found it very painful. As at 14 August 2007, Mr Bilaver had no pain and was walking without a limp, but had a “minimal local ache” on examination. Dr Burrow was happy for Mr Bilaver to return to office duties and to make a return to a “trial of normal duties in about one month.” In the meantime he suggested a supervised gym programme, hydrotherapy and a walking programme to increase his fitness, strength and weight bearing ability.
Dr Burrow reported again to Dr Foo on 25 March 2008 in the following terms:
“Frank has had trouble returning to normal duties as a forklift driver, despite my letter in December recommending a trial of return to normal duties. He has virtually no symptoms from his healed metatarsal fracture of the right foot, except for some discomfort on maximum leg press at the gym. Certainly for day-to-day activities, walking and running he is fine.
I reviewed x-rays today which show the fracture has completely healed and consolidated.
Frank is now fully fit to return to normal duties.
Thank you for asking me to see him initially.” (emphasis included)
Dr Foo reported to Mr Bilaver’s solicitor on 15 April 2008. In response to the question “What work restrictions would you place upon our client as a consequence of the injuries sustained”, Dr Foo referred to Mr Bilaver having been declared unfit for work between 31 May and 20 July 2007 and then fit for suitable duties from 23 July 2007, and added:
“He was certified fit for pre-injury duties from 12/12/2007 as recommended by Dr Burrow but he returned the next day complaining of pain in the right foot due to prolonged standing on the concrete floor.
From 13/12/2007, he was placed on suitable duties again until further recommendations from Dr Burrow.
He remained on suitable duties until the certificate expires on 30/04/2008.
I received a further letter from Dr Burrow dated 25/03/2008 who recommended that ‘Frank is now fully fit to return to normal duties’.”
Dr Mastroianni, consultant occupational physician, examined Mr Bilaver for medicolegal purposes on 6 June 2008. He recorded that Mr Bilaver trialled selected duties in late 2007, but only lasted one hour because when he wore safety boots his foot swelled and became sore. The doctor noted that Mr Bilaver had been recently cleared to perform suitable duties and recorded that he had since been involved with four different employment agencies, but said that nobody wanted to know him when they knew about his injury.
Under “Present Complaints/Symptoms”, the doctor recorded that Mr Bilaver’s foot aches when weight bearing, more so in colder weather. He had recently tried wearing steel boots and tried work with his father, but his foot became very sore. He had trouble walking on uneven surfaces and problems fully weight bearing on the right foot.
Dr Mastroianni referred to the x-ray reports referred to above, but also to a further x-ray report dated 18 December 2007, which is not in evidence. He described that x-ray as revealing that the fracture line was still visible and also revealing “deformity at the fracture site”.
On examination, the doctor noted Mr Bilaver’s gait to be normal, however, when in bare feet he could not fully weight bear and he limped favouring the right foot. He could not fully weight bear on his toes. Examination of the foot revealed no deformity, but there was moderate tenderness at the fracture site.
Under “Opinion”, Dr Mastroianni concluded, “radiologically there is union however clinically the fracture has not fully united as there is marked tenderness still at the fracture site. This restricts him weight bearing normally and wearing safety boots, heavy or tight shoes.” The doctor thought a second opinion from an orthopaedic specialist would be appropriate as to whether surgical intervention is needed “as the injury is interfering with his employment.” He thought the prognosis was guarded and that if the pain persisted Mr Bilaver would need further reviews and “possibly a fusion of the joint”. Dealing with fitness for work, Dr Mastroianni concluded:
“Because of persisting tenderness at the fracture site and his inability to weight bear normally and particularly as he is unable to wear safety boots, he is unfit for his pre-injury duties.
In my opinion, he should not have been certified fit for pre-injury duties. He has the following restrictions:
He cannot wear safety boots. He is therefore restricted in working in environments where he is required to wear safety boots.
He cannot do very heavy lifting or jobs requiring him to be on his feet for prolonged periods.”
Dr Dave, orthopaedic surgeon, examined Mr Bilaver on 2 August 2008. In his report of 6 August 2008, Dr Dave noted that Mr Bilaver continued to have problems with his foot and that his main problem was of pain which he “rated constantly and graded as 4 out of 10” and was made worse particularly on uneven surfaces or when he has any inversion type stress. Dr Dave considered the prognosis to be guarded and he suspected that Mr Bilaver might have articular cartilage damage/incongruity. He expressed no opinion about Mr Bilaver’s fitness for work, but left that to his treating doctor to decide. He thought Mr Bilaver “may find it difficult to go [sic] on uneven surfaces or to do any heavy lifting, twisting etc”. He also observed that he had been cleared for normal duties and that his job had been terminated.
QBE referred Mr Bilaver to Dr Powell, orthopaedic surgeon, for medicolegal purposes on 7 October 2008. Dr Powell took a history of the injury and subsequent treatment. He noted that Mr Bilaver completed an extensive physiotherapy programme followed by a three-month gym programme that included hydrotherapy. That treatment ceased around December 2007 and was responsible for a significant improvement in his symptoms “though not resolution.” Mr Bilaver’s right ankle remained symptomatic at the time he saw Dr Powell. He reported intermittent sharp pain localised to the lateral aspect of his right ankle. The pain typically occurred in cold weather and after periods of prolonged weight bearing. He also complained of morning stiffness in his ankle and minor intermittent swelling. He had difficulty negotiating uneven ground and described “subjective instability” though he had not fallen over. He was unable to run.
On examination, Dr Powell observed Mr Bilaver to have a normal gait. There was no obvious swelling, wasting or asymmetry. Nor was there any focal tenderness to palpation over the fracture site at the base of the fifth metatarsal and the fracture was clinically united. There was, however, some minor tenderness to palpation over the anterolateral joint line. The range of motion of the right ankle was mildly restricted and movement of the forefoot was also a little stiff and uncomfortable.
Based on his examination, Dr Powell considered Mr Bilaver to be fit to return to his pre-injury duties as a forklift driver and labourer. He added, however, that in view of his continuing symptoms, Mr Bilaver should avoid periods of prolonged standing, should alternate his tasks where possible, and should have the opportunity for regular rest breaks. With these restrictions, he was fit to work normal hours. Mr Bilaver’s overall prognosis remained a little guarded, as he remained symptomatic in his right foot and ankle almost 18 months after the injury and the fracture remained “troublesome”. The source of Mr Bilaver’s ongoing symptoms was not immediately clear, though Dr Powell felt that, in view of the intra-articular extension of the original fracture, it was possible that Mr Bilaver suffered some chondral damage leading to the development of some early post-traumatic arthritis. On that basis, Dr Powell felt that it was likely that Mr Bilaver’s “left [sic, right] foot will remain intermittently symptomatic.”
Adecco also relies on a file note prepared by Stephen Martin on 7 May 2008 that reads as follows:
“email D Cooper 7/5/08; Frank was offered work at Linfox Arontts [sic] huntingwood [sic] today and he advised that he was not avail [sic] as he had a dentist appointment, he was asked if he could reschedule the appointment and said he could not. He has been asked to call Marinda in the huntingwood [sic] office this afternoon to advise of his availability. Response: CM advised ER that IW has no further entitlement to either s38 or s40 benefits following issue of PID smedcert [sic] on 30/4/08. CM to advise IW”
Dr McGroder, AMS, assessed Mr Bilaver’s claim for whole person impairment on 26 February 2009. Under “Present Symptoms”, Dr McGroder recorded Mr Bilaver had constant pain in the outside of his right foot/ankle and that he could not wear work boots or heavy shoes. He could only stand for 30-45 minutes and could not lift heavy objects. He was only able to drive an automatic car and there was tenderness over the outside of the foot/ankle. At the time of the examination, Mr Bilaver was not working and he said that because of his injury history people did not want to employ him.
On examination, Dr McGroder recorded the right calf to be slightly larger than the left and observed Mr Bilaver to walk with a slight limp favouring his right leg on occasions though “basically the gait was normal”. Mr Bilaver had discomfort on walking on his heels and toes and there was tenderness around the proximal head of the fifth metatarsal. The ankle joint was stable but there was pain on stressing the lateral ankle mechanism. Under “Summary of injuries and diagnoses”, Dr McGroder noted the fracture of the proximal head of the fifth metatarsal had healed and consolidated, though there were ongoing problems with the fracture site. Dr McGroder assessed Mr Bilaver to have a 1% whole person impairment as a result of his injury.
THE ARBITRATOR’S REASONS
In a reserved Statement of Reasons (‘Reasons’) delivered on 6 April 2009, the Arbitrator set out a succinct summary of the evidence and the relevant authorities dealing with partial incapacity for work and concluded:
(a)she was satisfied that Mr Bilaver had some incapacity for work in the labour market in which he would normally have sought work. The fact that he had some difficulty walking on uneven ground or wearing safety boots was significant for a worker who was working as a forklift driver/storeman/labourer. She did not accept the assessments by Drs Foo and Burrow because of the specialist opinions of Drs Powell and McGroder which clearly noted limitations in Mr Bilaver’s ability to return to his pre-injury employment and restrictions on his employment which limits the saleability of his labour in the general labour market for him (Reasons at [32]);
(b)after noting that probable earnings under section 40(2)(a) were agreed at $998.80 per week, the Arbitrator assessed Mr Bilaver’s ability to earn under section 40(2)(b) to be $20.00 per hour for 38 hours per week ($760.00 per week), and
(c)the above figures gave a difference of $238.80 per week and the Arbitrator saw no reason to reduce that amount in the exercise of her discretion under section 40(1) and she made an award in that amount from 1 May 2008 to date and continuing together with a general order for the payment of hospital and medical expenses and for the payment of lump sum compensation in the sum of $1,375.00 in respect of a 1 percent whole person impairment.
ISSUES IN DISPUTE
Adecco alleges that the Arbitrator erred in that she:
(a) found that Mr Bilaver was not fit for his pre-injury duties (‘fitness for pre-injury duties’);
(b) failed to ascribe sufficient weight to the evidence from Mr Bilaver’s treating doctor and treating specialist and the observation of the AMS in relation to Mr Bilaver’s capacity for work (‘weight of evidence’);
(c) relied on material that was not medically substantiated and did not adequately balance all of the medical evidence in coming to her conclusion in relation to Mr Bilaver’s capacity (‘unsubstantiated material’);
(d) failed to give sufficient weight to Mr Bilaver’s refusal to accept an offer of employment by Adecco (Mr Bilaver’s refusal to accept an offer of employment from Adecco);
(e) erred in calculating the amount of Mr Bilaver’s make up pay and did not consider his capacity to work and his employment history to determine that he had little or no reduction in his real capacity to earn (Mr Bilaver’s capacity to work and employment history);
(f) failed to adequately exercise her discretion in calculating Mr Bilaver’s loss of wages arising from his incapacity (‘failure to adequately exercise her discretion’), and
(g) awarded costs to Mr Bilaver in circumstances where the lump sum compensation recovered was identical to the offer of settlement made by Adecco on 21 October 2008 (‘costs of the arbitration’).
SUBMISSIONS, DISCUSSION AND FINDINGS
Fitness for pre-injury duties
Adecco submits that a review of the medical evidence demonstrates little support for the contention that Mr Bilaver suffers a physical disability to work as a result of his injury. While Dr McGroder did not rule out the possibility of some residual symptoms he found, “on the basis of medical experience there was no condition sufficient to conclude that the worker was not able to return to his pre-injury employment” (Adecco’s submissions, at [27]).
I do not accept this submission. First, there is abundant medical evidence to support the conclusion that Mr Bilaver suffers from a physical disability as a result of his injury. That evidence includes Mr Bilaver’s evidence in his statement of 30 October 2008, which is supported by the conclusions reached by Drs Mastroianni, Dave and McGroder.
Second, the submission that the AMS found there was no condition sufficient to conclude that Mr Bilaver was not able to return to his pre-injury employment is incorrect. Dr McGroder made no such finding and was not asked to consider Mr Bilaver’s fitness for work.
This ground of appeal has no merit.
Weight of evidence
It is submitted that the Arbitrator erred in relying on the opinion of a single medical examiner and disregarding the opinions of a number of examiners to the contrary, including the opinion of the AMS, Dr McGroder. The Arbitrator should, so it is argued, have given more weight to the opinions of Mr Bilaver’s treating doctors and treating specialist and the preponderance of the evidence is favourable to the conclusion that he is fit to return to his pre-injury employment.
I do not accept this submission. Having carefully reviewed all of the available evidence I agree with the Arbitrator’s conclusion that Mr Bilaver is partially incapacitated for employment as a result of his right foot fracture. Dr Burrow’s opinion is unpersuasive. It appears to have ignored his own history that Mr Bilaver had “trouble returning to normal duties as a forklift driver”. His history that Mr Bilaver was “fine” for day-to-day activities such as walking and running is inconsistent with other evidence, which I accept, that symptoms are continuing.
Similarly, I do not accept Dr Foo’s conclusion, which appears to be based solely on Dr Burrow’s report of 25 March 2008 rather than Dr Foo’s own independent assessment. I also note that Dr Foo is not Mr Bilaver’s regular treating doctor, but is a doctor who was selected for him by CSR.
The Arbitrator carefully considered the evidence from Drs Foo and Burrow and weighed that evidence against the other evidence in the case. I agree with her conclusion that Mr Bilaver remains partially incapacitated for work on the open labour market. The opinions from Drs Foo and Burrow are inconsistent with Mr Bilaver’s evidence, which I accept, and are unpersuasive.
Unsubstantiated material
Adecco argues that the Arbitrator relied on evidence that was “not direct medical evidence however rather based on observation and self reports of the worker” (Adecco’s submissions, at [32]).
I do not accept this submission. The x-ray reports and the findings of a restricted range of movement on examination by Drs McGroder, Powell and Mastroianni provide abundant objective evidence of the nature of the injury and that Mr Bilaver continues to have restricting symptoms as a result.
The claim for incapacity is also supported by Dr Powell. His examination revealed tenderness to palpation over the anterolateral joint and a restricted range of movement of the ankle. In addition, though Dr Powell declared Mr Bilaver to be fit to return to his pre-injury duties, he placed three significant restrictions on him. Those restrictions are that Mr Bilaver should:
(a)avoid periods of prolonged standing;
(b)alternate his tasks where possible, and
(c)have the opportunity for regular rest breaks
These restrictions clearly affect Mr Bilaver’s ability to earn in the labour market reasonably assessable to him.
Next, it is submitted that it should not be accepted that Mr Bilaver has a “fundamental inability to walk on uneven surfaces as not [sic, no] medical evidence exists besides his own report this is the case” (Adecco’s submissions, at [34]). This submission ignores Mr Bilaver’s evidence, which I accept, of continuing symptoms in his right foot and ankle, and ignores Dr Powell’s acceptance of those symptoms and that it is possible that Mr Bilaver suffered some chondral damage leading to the development of some early post-traumatic arthritis. I find this submission unpersuasive.
Mr Bilaver’s refusal to accept an offer of employment from Adecco
Adecco argues that the Arbitrator erred in giving insufficient weight to Mr Bilaver’s refusal to accept the offer of employment referred to in Mr Martin’s memo of 7 May 2008 (see [35] above). There is no evidence as to the nature of the work that was offered, whether it was permanent or part-time, whether it was suitable, or any other aspect of it. In these circumstances there is no reason to give that evidence any weight at all. The question to be considered and determined is whether Mr Bilaver has a partial incapacity for work in the labour market reasonably accessible to him. That is the question the Arbitrator considered and answered and I agree with her approach and conclusions.
Mr Bilaver’s capacity to work and employment history
It is submitted that the Arbitrator’s finding that Mr Bilaver has an ability to earn $760.00 per week is “too low given the worker’s medically reported capacity to resume his pre-injury work” (Adecco’s submissions, at [42]) and the Arbitrator “ought to have exercised her discretion in increasing the worker’s probable earnings assessment in light of the medical evidence which indicated only minor permanent impairment and a capacity to resume pre-injury duties” (Adecco’s submissions, at [43]).
I do not accept the above submissions, which are based on the incorrect assumption that Mr Bilaver is fit for his pre-injury employment. Mr Bilaver’s evidence, which is supported by Dr Mastroianni and, to a lesser extent by Drs Powell and McGroder, is that he continues to have symptoms in his right foot and ankle. Those symptoms prevent him from wearing safety boots, restrict his ability to stand for prolonged periods, and his ability to lift heavy objects. Those symptoms have resulted in a significant incapacity for Mr Bilaver on the open labour market. After referring to the relevant authorities and the terms of the legislation, the Arbitrator assessed Mr Bilaver's ability to earn to be $760.00 per week. The difference between that figure and his agreed probable earnings but for the injury is $238.80 per week. For the reasons given by the Arbitrator, that assessment was entirely appropriate and agree with it.
Even if it were accepted that Mr Bilaver is fit for his pre-injury employment that does not determine his entitlement under section 40. The Commission is required to assess his ability to earn in the labour market reasonably accessible to him (see Steggles Pty Ltd v Aguire (1988) 12 NSWLR 693). That is the assessment the Arbitrator undertook and I fully agree with her approach and her conclusions.
Further, in assessing a worker’s ability to earn under section 40(2)(b) (step 2 under Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527 (‘Mitchell’)), an arbitrator is not required to exercise a “discretion”, but is required to apply the relevant authorities and the principles set out in section 43A of the 1987 Act. That is exactly what the Arbitrator did. The exercise of the discretion is applied at step 4 of the process, not step 2 (see Mitchell).
Failure to adequately exercise her discretion
Other than to repeat its earlier submissions as to Mr Bilaver’s fitness for work in general, Adecco has offered no reasons why the discretion in section 40(1) should be exercised to reduce the sum of $238.80 found by the Arbitrator to be the difference between probable earnings and Mr Bilaver’s ability to earn. There are no grounds for exercising the discretion in this case. I reject this submission.
Costs of the arbitration
It is submitted that the Arbitrator erred in not awarding costs in favour of Adecco, given that Dr McGroder’s assessment was the same as the offer put by QBE on 12 October 2008. The Arbitrator carefully considered this submission and determined that, in light of Dr Dave assessing an 8 percent whole person impairment, and in the context of a claim for weekly compensation, it was not unreasonable for Mr Bilaver to continue to prosecute the claim in the Commission. She therefore made the usual costs order that the employer pay the worker’s costs as agreed or assessed. I fully agree with that conclusion. Mr Bilaver was entitled to pursue his claim for weekly compensation and he succeeded with that claim. No additional costs were unreasonably incurred because the AMS certified a 1% whole person impairment. The claim for weekly compensation had to be determined regardless of the outcome of the AMS referral.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I agree with the Arbitrator’s conclusions and her reasons.
DECISION
The Arbitrator’s determination of 6 April 2009 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, which I assess at $2,200.00 plus GST.
Bill Roche
Deputy President
9 July 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
2
0