APS Group (Placements) Pty Ltd v Clarke
[2013] NSWWCCPD 10
•6 March 2013
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | APS Group (Placements) Pty Ltd v Clarke [2013] NSWWCCPD 10 | ||||
| APPELLANT: | APS Group (Placements) Pty Ltd | ||||
| RESPONDENT: | Stephen Paul Clarke | ||||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-1998/12 | ||||
| ARBITRATOR: | Ms F Robinson | ||||
| DATE OF ARBITRATOR’S DECISION: | 28 November 2012 | ||||
| DATE OF APPEAL DECISION: | 6 March 2013 | ||||
| SUBJECT MATTER OF DECISION: | Challenge to Arbitrator’s factual findings; evidence of total incapacity. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Turks Legal | |||
| Respondent: | P K Simpson & Co | ||||
ORDERS MADE ON APPEAL: | 1. Paragraph 1(a) found in Certificate of Determination dated 28 November 2012 is amended by deletion of the money sum $1,287 and substitution with the money sum $973.43. The orders made in that Certificate are otherwise confirmed. 2. The appellant is to pay Mr Clarke’s costs of this appeal. | ||||
BACKGROUND
Mr Stephen Clarke claimed workers compensation benefits in these proceedings against his former employers Woolworths Limited and APS Group Pty Ltd (the appellant). The matter came before Arbitrator Faye Robinson for conciliation and arbitration on 11 May 2012. The matter proceeded to hearing and the Arbitrator reserved her decision. A Certificate of Determination was issued on 28 November 2012 in the following terms:
“The determination of the Commission:
1. APS Group Pty Limited, the second respondent, to pay to the applicant weekly benefits of compensation as follows:
(a)$1,287 per week from 6 November 2011 to 5 May 2012 pursuant to section 36 of the Workers Compensation Act 1987;
(b)$628 per week from 6 May 2012 to 30 September 2012 pursuant to section 37 of the Workers Compensation Act 1987;
(c)$638.10 per week from 1 October 2012 to date pursuant to section 37 of the Workers Compensation Act 1987, and
(d)such payments to continue, pursuant to section 37 and as adjusted, in accordance with the workers compensation legislation.
2. APS Group Pty Ltd, the second respondent to pay the medical and related expenses incurred by the applicant pursuant to s 60 of the 1987 Act on production of accounts/receipts and/or HIC charge.
3. APS Group Pty Ltd, the second respondent, to pay the costs of the applicant as agreed or assessed.
Certification
There were two respondents each with separate legal representation. The history of injury extended over a significant period of time. Accordingly I grant to all parties a 25 per cent costs uplift.”
The orders made reflected the Arbitrator’s findings that Mr Clarke was totally incapacitated as a result of a work related injury being aggravation of a disease, and that liability for compensation payments was that of the appellant, the last employer.
In the present appeal, the appellant makes no complaint concerning the finding as to the nature of the injury, nor concerning its liability for compensation payments. It is for that reason Woolworths Limited has not been cited as a respondent to the appeal. That employer has notified the Commission that it proposes to take no part in the appeal process. No complaint is made by that employer that no formal award had been entered in its favour.
ISSUES IN DISPUTE
The appellant challenges the Arbitrator’s finding that, as a result of injury, Mr Clarke is totally incapacitated.
I note that the Arbitrator’s finding that Mr Clarke’s relevant current weekly wage rate was $1,287 per week is also challenged. It is asserted that the correct figure, having regard to fresh evidence, which the appellant proposes be admitted on this appeal, is $973.43 per week.
The appellant argues that it is appropriate, should the finding of total incapacity be disturbed, that a determination of Mr Clarke’s entitlement as a partially incapacitated worker be made on this appeal.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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 Nos 1 and 6, the documents that are before me, and the submissions 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of 1998 Act have been met.
FRESH EVIDENCE
Section 352(6) of the 1998 Act provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Application by appellant
The appellant seeks leave to adduce additional documentary evidence which is described as “Wages Records” and “Clerk – Private Sector Award”. The first of those identified items takes the form of a document dated 11 May 2012 created by the appellant headed “To whom it may concern” in which details appear of Mr Clarke’s earnings, including week-to-week earnings and average weekly earnings. Also included is detail of the relevant award rate of pay. Mr Clarke takes no objection to the admission of that evidence on this appeal, he accepts the accuracy of the calculation of average weekly earnings found therein and concedes that the relevant current weekly wage rate is $973.43 per week.
That document, it is stated in submissions, had been made available to all concerned at the hearing, and submissions had been put by counsel founded upon its contents. The transcript (T) of proceedings before the Arbitrator recorded counsel for the appellant stating in relation to evidence concerning earnings: “I don’t think [counsel for Mr Clarke] has any problems with the figures that I read onto the record”. Counsel for Mr Clarke acknowledged that written material had been shown to him (at T26). The transcript does not reveal any record of the matters referred to during this exchange as having been placed “on the record”. It is not explained why the document was not tendered before the Arbitrator.
Having regard to the concession made by Mr Clarke concerning the quantum of relevant weekly earnings and his election not to take objection to the admission of the document, it is, in my view, appropriate that the document dated 11 May 2012 be admitted as additional evidence as is permitted by s 352(6) of the 1998 Act.
With respect to the appellant’s application seeking admission of the industrial award, I note that such award operates under the relevant Commonwealth FairWork legislation and is material of which the Commission may, in my view, take notice and from which it may inform itself: s 354(2) of the 1998 Act. In the circumstances, the application made pursuant to s 352(6) concerning the award is rejected.
Mr Clarke’s application
Mr Clarke seeks leave to tender fresh or additional evidence on this appeal which is identified as being clinical notes of Concord Repatriation General Hospital, dated 11 February 2013 and a copy of correspondence from Mr Clarke’s solicitors to the appellant’s solicitors enclosing a copy of that documentation.
The clinical notes demonstrate that Mr Clarke had been admitted for treatment of the subject injury at the Concord Pain Clinic in February this year. Those documents include detail of treatment during that admission. The appellant opposes the admission of that material and has filed supplementary submissions outlining the basis of its objection.
Having regard to my view concerning the outcome of the appeal which appears below, there is, in my opinion, no need to consider the admission of the hospital records. In the circumstances, Mr Clarke’s application is refused.
THE ARBITRAL PROCEEDINGS
There was no dispute that, as a result of relevant injury, Mr Clarke had sustained a disabling lumbar disc lesion which was revealed following conduct of radiological investigations. An MRI lumbar spine conducted on 1 February 2002 reported by Dr Rohan Sabharwal demonstrated the following findings:
“Comment: Moderate loss of disc height associated with a left paraforaminal/foraminal disc protrusion at the L5/S1 level with the disc abutting the descending left S1 nerve root within the lateral recess and resulting in mild to moderate left sided foraminal narrowing. There may be potential irritation of the descending left S1 nerve root and the exiting left L5 nerve root on weight bearing.”
The evidence before the Arbitrator concerning the question of the extent of incapacity suffered by Mr Clarke is addressed in the course of discussion below.
Submissions before the Arbitrator
Much argument advanced before the Arbitrator concerned liability and apportionment, issues which are not presently relevant. With respect to the question of Mr Clarke’s work capacity, counsel appearing for Woolworths Limited argued that a finding of partial incapacity should be made and further that, having regard to Mr Clarke’s ability to earn whilst incapacitated, the relevant calculations would suggest entitlement to weekly compensation “close to the statutory maximum for a single worker” (at T14). It had earlier been put by counsel that “there is no evidence that [Mr Clarke is] totally incapacitated” (at T5).
Counsel for the appellant adopted the submissions concerning incapacity put by counsel appearing for Woolworths Limited (at T26).
Counsel for Mr Clarke acknowledged that Dr Tang, general practitioner, had certified that Mr Clarke “could work full hours with [sic] some sort of restricted duties” (at T29), but proceeded to state that it was the opinion of Dr Miniter, orthopaedic surgeon, upon whom reliance was placed, that he was totally incapacitated. It was then put that the evidence supports a conclusion of total incapacity, with the qualification that “if he is not then he is pretty close to it” (at T30).
The Arbitrator’s decision
The Arbitrator accepted the evidence that Mr Clarke’s partner and one child were dependent upon his earnings at relevant times.
The question of causation of Mr Clarke’s incapacity, which is presently of no relevance, was then considered by the Arbitrator. Findings were made that Mr Clarke had suffered an aggravation, acceleration, exacerbation or deterioration of a disease and, further, that the appellant was the employer “which last employed [Mr Clarke] in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease” and that, on the evidence concerning the onset of incapacity “the deemed date of injury is 5 November 2011” (at [44] and [45] of Reasons).
The Arbitrator, who had earlier summarised the evidence before her, proceeded to determine the question of the extent of incapacity as follows (at [46]):
“The applicant is unable to perform any duties within his skills and experience. Due to the serious nature of his medical condition his prospects of obtaining other employment is (sic) remote. He is entitled to benefits pursuant to s 36 and thereafter s 37 of the 1987 Act. Neither respondent has made any real attempt to suggest otherwise.”
The Arbitrator proceeded to make the orders noted at [1] above. It is to be noted that no formal award had been entered in favour of Woolworths Limited.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The Arbitrator’s finding of total incapacity
The question as to the extent of incapacity, that is whether it be either partial or total incapacity, is essentially one of fact. It is thus necessary, to succeed on the appeal, that the appellant establish that the conclusion reached by the Arbitrator was wrong. Such error may be established by showing, as stated by Barwick CJ in Whiteley, Muir & Zwanenberg Ltd v Kerr (1996) 39 ALJR 505 (at 506) that:
“material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The appellant draws attention to the evidence of the expert medical witnesses including Dr Giblin (orthopaedic surgeon), Dr Chara (occupational health practitioner), Dr Tang and Dr Miniter. It is also asserted in argument that counsel appearing for Mr Clarke “conceded during submissions that [Mr Clarke] was fit for suitable duties”. The contention made is that the evidence identified in that submission “proved, on the balance of probabilities, that the worker was partially incapacitated for work”.
The evidence of Dr Giblin as found in his report of 1 February 2012, includes the following statements:
“I assess [Mr Clarke] as being permanently unfit for his pre-injury work environment.
He may be fit for a sedentary work environment avoiding the aforementioned physical restrictions and preceded by the appropriate vocational rehabilitation.”
It may be seen that Dr Giblin’s view as to capacity for sedentary work is expressed by way of prognosis upon the assumption of Mr Clarke pursuing “appropriate vocational rehabilitation”. Such expression of opinion falls short, in my view, of suggesting that Mr Clarke was, at the date of that examination, fit for sedentary work.
The appellant relies upon a medical certificate issued by Dr Chara, dated 22 November 2011, tendered on behalf of Mr Clarke, which certifies him to be fit for pre-injury duties as at the date of that certificate. The probative value of that certificate must be assessed having regard to Mr Clarke’s evidence as found in his statement dated 25 January 2012, where the following appears:
“I then went back to see Dr Chara on 22 November 2011 and asked him to give me a medical certificate clearing me fit for my pre-injury duties because I needed some money coming in to support my family. I knew that my back was not 100 per cent but I did not want to lose any work opportunities since I was told that my claim was not going to be accepted.”
It is reasonably clear that the Arbitrator did not find the content of that certificate persuasive with respect to the question of incapacity. That is not surprising given the tenor of the medical evidence generally, including evidence tendered on behalf of the appellant.
The appellant correctly states in submissions that Dr Tang issued a certificate, on 1 December 2011, stating that Mr Clarke was fit for suitable duties from that date. It is important, in my view, to note that the certificate included a summary of restrictions which included no lifting greater than 2 kg, no walking for more than 20 minutes per hour, no sitting for more than 20 minutes per hour and no standing for more than 20 minutes per hour. That certificate included a statement that Mr Clarke’s fitness for work was to be reviewed on 29 December 2011.
The appellant submits that the evidence of Dr Miniter included the expression of his view that Mr Clarke “could work as a chef or attend vocational training”. I note that Mr Clarke, earlier in his working life, had qualified as a chef and had worked in that trade for a relatively short period before changing occupations. The appellant’s submission, in my opinion, misstates Dr Miniter’s views concerning Mr Clarke’s incapacity. Dr Miniter noted that the nerve root compression resulting from the injury “is ongoing and [Mr Clarke] justifies surgical exploration and decompression”. He then stated:
“He has every reason to do well from such surgery and should expect to return to work. I would not however advise that he return to work as a picker and packer, but rather that he work as a chef or attend vocational retraining. This is of course the most sensible alternative but his limited education may preclude such management.”
Having regard to the medical evidence summarised above it may plainly be inferred from the evidence of Dr Giblin that Mr Clarke, as a result of injury, was totally incapacitated. It is clear that the certificate issued by Dr Chara was issued by reason of an express request made by Mr Clarke. In such circumstances the probative value of that certificate may, in my view, be open to question. It is clear that the Arbitrator rejected the certification of fitness as is evidenced by that certificate. So far as the certificate of Dr Tang is concerned, it is clear that at the date of the issue of that certificate he was of the view that Mr Clarke was greatly restricted in terms of work capacity. Dr Miniter also states in his report, dated 17 April 2012, that “[Mr Clarke] is not currently fit for employment and needs to see either a neurosurgeon or an orthopaedic spinal surgeon to have this matter resolved”.
I am unable to accept the appellant’s submission that a concession of partial incapacity may be inferred from anything stated by counsel during the course of the hearing before the Arbitrator. I have, at [22] above, noted that which was observed during argument by Mr Clarke’s counsel. Such statement may not, in my view, be treated as an admission concerning partial incapacity.
The conclusion reached by the Arbitrator was one open on the evidence and the appellant, in my view, has failed to make out any relevant error. Whilst it is true that the Arbitrator’s reasons for her conclusion were stated very briefly, no complaint is made on this appeal concerning the sufficiency of Reasons as they appear in the Arbitrator’s determination. Having regard to the state of the evidence, the Arbitrator’s conclusion cannot be criticised and, in my view, is consistent with those matters stated by the Court of Appeal in the matter of Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206, an appeal by way of rehearing, where it was stated by Mahoney P (Handley JA and Powell JA agreeing at 213 -214):
“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 Ltd v Yacob (1983) 155 CLR 171 at 177. That principle has been applied frequently by this Court: see, eg, Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222 at 226-9. As the Arnotts case illustrates, 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, ie, what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities, as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income. I do not wish by what I say to narrow the scope of the inquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. 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. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he is able to do those things which will permit him to do work in the relevant labour market. The provisions of, for example, s 70 of the Act contemplate in my opinion that, in an appropriate situation, the Court will make assessments of this kind.
In the present case, the injuries to the worker's back were serious. It is clear that he could no longer do the landscape work which previously he had done. It has been suggested that, in such a case, the worker is to be seen to be totally incapacitated unless the employer shows the contrary: cf Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 at 539. It is not necessary in the present case to determine whether that is the approach to be adopted. I shall assume that the onus of proof upon the worker required that he show incapacity for the things in the ‘market’ to which ordinarily he would be expected to go.”
Quantum of the award
As earlier noted there is no dispute between the parties that the current weekly wage rate relevant to the calculation of Mr Clarke’s entitlement for the first 26 weeks of total incapacity is $973.43 per week. In the circumstances it is appropriate that paragraph 1(a) of the Arbitrator’s award be amended to reflect that agreement. Subject to that amendment, the Arbitrator’s determination must be confirmed. Appropriate orders appear below.
DECISION
Paragraph 1(a) found in Certificate of Determination dated 28 November 2012 is amended by deletion of the money sum $1,287 and substitution with the money sum $973.43. The orders made in that Certificate are otherwise confirmed.
COSTS
The appellant is to pay Mr Clarke’s costs of this appeal.
Kevin O'Grady
Deputy President
6 March 2013
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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