Arnold v Holiday Coast Transportation Services Pty Ltd - [2012] NSWWCCPD 13

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Arnold v Holiday Coast Transportation Services Pty Ltd [2012] NSWWCCPD 13
APPELLANT:		Kenneth John Arnold
RESPONDENT:		Holiday Coast Transportation Services Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-3909/11
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:		9 December 2011
DATE OF APPEAL DECISION:		13 March 2012
SUBJECT MATTER OF DECISION:		Failure to give reasons; failure to consider relevant evidence; failure to consider the principles in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20; failure to properly assess worker’s ability to earn; relevance of non-work related medical conditions in assessment of compensation for partial incapacity where worker is still employed
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	MBT Lawyers
Respondent:	Mulcahy Lawyers
ORDERS MADE ON APPEAL:		Paragraph 2 of the Arbitrator’s determination of 9 December 2011, amended on 6 February 2012, is revoked and the applicant worker’s entitlement to weekly compensation from 19 January 2011 to date and continuing is remitted to a different Arbitrator for re-determination. All other orders made in the determination of 9 December 2011, amended on 6 February 2012, are confirmed. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

This appeal concerns the calculation a worker’s entitlement to weekly compensation for partial incapacity under s 40 of the Workers Compensation Act 1987 (the 1987 Act) in circumstances where the worker has returned to work on part-time suitable duties and has several concurrent non-work related health conditions that are said to affect his ability to earn.

BACKGROUND

The appellant worker, Kenneth Arnold, has worked for the respondent employer, Holiday Coast Transportation Services Pty Ltd, as a taxi- and minibus driver since October 1998. He injured his right knee and back when he slipped and fell in the course of his employment on 26 June 2009. As a result of his injury, he has suffered various periods of total and partial incapacity.
Mr Arnold’s main injury was to his right knee. He stopped work on 1 July 2009 and remained off work for several weeks before returning on part-time work in August 2009. He continued to have pain and restrictions in his knee and had a total knee replacement on 11 January 2010 at the hands of Dr Summersell. The insurer, QBE Workers Compensation (NSW) Ltd (QBE), accepted liability for that surgery. He returned to work on 19 July 2010 and worked full-time until he reduced his hours in January 2011.
His claim before the Arbitrator was for weekly compensation for two distinct periods: the first, for various periods of total and partial incapacity from 26 June 2009 to 19 July 2010 and, the second, for partial incapacity from 19 January 2011 to date and continuing. Though the insurer did not dispute that Mr Arnold injured his back and right knee as alleged, it disputed the quantum of his entitlement to weekly compensation.
The first period involved a dispute about the correct current weekly wage rate and is not the subject of challenge on appeal.
The second period concerned Mr Arnold’s entitlement to compensation under s 40 of the 1987 Act after he had returned to work on suitable duties on reduced hours from mid-January 2011 earning $300 per week. This period was contentious because the respondent alleged that any incapacity from 19 January 2009 related to a further injury to Mr Arnold’s right knee when he stepped into a hole in non-compensable circumstances in January 2011 and/or to his unrelated health conditions.
Mr Arnold alleged, in a late amendment to the Application to Resolve a Dispute (the Application), that the further injury to his right knee in fact happened in December 2010 and was a compensable injury while he was on a journey to his home under s 10 of the 1987 Act. In the alternative, Mr Arnold argued that the incident with the hole had no lasting effect on his knee and was irrelevant to the current claim.
In respect of his unrelated health conditions, Mr Arnold argued that most of those problems pre-dated his injury on 26 June 2009 and did not affect his ability to earn. He further submitted that, applying Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (Aitkin), his actual earnings were prima facie evidence of his ability to earn.
The Arbitrator found that Mr Arnold had not proved that the incident with the hole “occurred as a journey claim” and, in any event, Mr Arnold said, and I infer the Arbitrator accepted, that that incident only had a temporary impact on his right knee.
Relying on evidence from Mr Arnold’s general practitioner, Dr Knight, who certified the worker fit for work for 15 hours per week on 15 December 2010 because of his “multiple medical problems”, the Arbitrator did not accept that Mr Arnold’s restrictions (from 19 January 2011) resulted “solely” from the right knee condition. He assessed that, were it only for Mr Arnold’s right knee condition, he “would have put him on a restriction of 30 hours per week” (Statement of Reasons at [37]).
He therefore assessed Mr Arnold’s ability to earn to be $600 per week instead of his agreed actual earnings of $300 per week. As probable earnings but for injury were agreed at $929.35, and as he saw no reason to exercise the discretion in s 40(1), he made an award for $329.35 per week ($929.35 less $600) from 19 January 2011 to date and continuing.
The Commission issued a Certificate of Determination on 9 December 2011, which was amended by consent on 6 February 2012. The amended Certificate of Determination made the following orders:
“The Commission determines:
1. I find that the applicant’s current weekly wage rate pursuant to section 42 of the Workers Compensation Act 1987 as at 26 June 2009 was $1,161.90 per week. In accordance with the schedule agreed by the parties and filed after the 9^th December and which is attached to these reasons.
2. The respondent will pay the applicant pursuant to section 40 of the Workers Compensation Act 1987 from the 19 January 2011 to date and continuing at the rate of $329.35 per week to date and continuing.
3. The respondent will pay the applicant his costs as agreed or assessed to which costs I provide to both parties an uplift for complexity in the order of 30 per cent.
4. The parties have liberty to apply to the Registrar to settle the orders in this case in particular the terms of order 1 above.”
Mr Arnold has appealed the Arbitrator’s s 40 determination for the period from 19 January 2011 to date and continuing. Neither side has challenged the Arbitrator’s determination up to Mr Arnold’s return to work on 19 July 2010, or the findings about the incident when Mr Arnold stepped into a hole.

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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     failing to correctly apply step two in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell) relating to the calculation of Mr Arnold’s ability to earn;
(b)     increasing the amount of Mr Arnold’s ability to earn above his actual earnings, contrary to the principles in Aitkin;
(c)     determining that Mr Arnold’s restriction to 15 hours per week was not related solely to his right knee condition;
(d)     failing to give reasons for:
(i)departing from the principles in Aitkin,;
(ii)why he could not accept that the 15 hours per week restriction related solely to Mr Arnold’s right knee condition, and
(iii)why Mr Arnold’s restriction for work associated with his right knee condition was 30 hours per week.
(e)     finding that Mr Arnold’s restriction for work associated with his right knee condition was 30 hours per week when such finding was against the weight of evidence;
(f)      failing to properly consider or address all the relevant evidence;
(g)     failing to consider and apply the factors in s 43A of the 1987 Act, and
(h)     failing to consider or determine the application or otherwise of s 48 of the 1987 Act in relation to Mr Arnold’s pre-existing medical condition.

EVIDENCE

Mr Arnold’s evidence

Mr Arnold was born in 1949 and is now 62 years old. He left school at the age of 16 and worked as a bank teller for five years before working for Telecom for 20 years. He has worked as a taxidriver with the respondent since 1998.
Mr Arnold relied on two statements and gave oral evidence at the arbitration. In his first statement, undated but attached to the Application filed on 12 May 2011, Mr Arnold said that, before his accident, he normally worked 42 hours per week. He briefly described the accident and coming under the care of Dr Knight. He said that “presently” Dr Knight had certified him fit for suitable duties for 15 hours per week. Exactly when “presently” was is not explained.
He said that he had problems with “getting in and out of cabs, being seated or standing for long periods of time, or driving for periods of more than 3 hours per shift”. He said he had pain in his right knee and his left knee every day. His left knee had become painful because he had been favouring his injured right knee. The pain (presumably in both knees) usually started “particularly on a shift after 2 hours”. Once he got pain in his right knee during a shift, which he rated between five and seven out of 10, it usually lasted for the rest of the day. The pain caused him difficulty sleeping, walking more than one kilometre, standing, lifting and carrying weights such as shopping bags or luggage, and playing golf (which he now does using a cart rather than walking).
Mr Arnold said he had not made a full recovery from his surgery, though his knee had improved with the operation. Because of his knee problems, he would prefer to work in the taxi bus rather than in the cab because it is easier for him to get in and out of the bus than the cab.
In his second statement, dated 10 August 2011, Mr Arnold acknowledged that he had been hospitalised in the past because of his various medical conditions, but those conditions (which he did not identify) had not prevented him from returning to, and continuing, his work as a taxidriver. He said that Dr Knight certified him fit to hold his taxi licence on 17 July 2008 and that he had clearances to work as a taxidriver from his cardiologist, Dr Waites, and his endocrinologist, Dr Linjawi. He did not say when his specialists gave those clearances.
Mr Arnold said he did his best to return to work after Dr Knight certified him fit to return to work on suitable duties. He worked as best he could despite ongoing problems with his right knee, and often worked shifts that were “beyond [his] limits because he needed the money to live on”. (The period of time that Mr Arnold was referring to is not clear because Dr Knight certified him fit for suitable duties on several different occasions.)
He tried to resume his pre-injury duties in July 2010, having been certified fit for those duties by Dr Knight from 20 July 2010, but, over the ensuing months, he was unable to cope because of the pain he experienced in his right knee. He was not coping, became depressed, and saw Dr Knight in November 2010.
In respect of the alleged journey incident, Mr Arnold said that one of the respondent’s directors had dropped him off at his home in December 2010. As he was getting out of the taxi, he put his foot in a hole in the road and he hurt his right knee. The pain in his knee was “worse temporarily” and it returned to the way it was before the incident. He did not say when his knee returned to its previous state.
As he was depressed and “fed up” with the ongoing pain in his right knee and dealing with the insurer, QBE, Mr Arnold applied for, and received, a disability pension from Centrelink. He saw Dr Knight in January 2011 and was certified fit for suitable duties for 15 hours per week from 19 January 2011.
Since his accident, Mr Arnold found sitting in the taxi for hours on end made his right knee painful and he “struggled to get in and out of the taxi or to assist passengers with their luggage”. He was usually very sore and worn out by the end of his shift and that was still the case as at 10 August 2011. He believed the work he was doing was the limit of his capacity working for the respondent. He has found the work difficult and that it has caused pain in his right knee. When he tried to do additional shifts in the past, it made his right knee worse and he was very sore at the end of the shift and the next day.
The respondent’s solicitor, Mr Harlen, cross-examined Mr Arnold and drew his attention to a medical report prepared by Dr Knight on 29 November 2010 in support of Mr Arnold’s application for the disability support pension. Mr Harlen put very few specific propositions to Mr Arnold and, as a result, elicited very few relevant answers. Mr Arnold said that he had tennis elbow seven or eight years ago but had completely recovered from it and that it was not a current problem.
Mr Arnold agreed in cross-examination that he returned to full-time work in July 2010 (T16.15) and, notwithstanding that he said in his statement that he had been unable to cope because of pain in his right knee, it was probably correct that he did not see a doctor because of his right knee between July 2010 and January 2011. Mr Arnold denied that his left knee was the more troublesome knee when he saw Dr Knight on 29 November 2010.
When asked what happened on 19 January 2011, noting that Mr Arnold saw Dr Knight on that day, Mr Arnold said (at T17.8):
“Yep. Because I was in pain and I couldn’t do my work and I was asked to attend there by, I, my knee was so sore that I went to him to report to him and I …”
Mr Arnold later clarified that the knee he was referring to when he saw Dr Knight on 19 January 2011 was his right knee (T17.21). He agreed that he did not see a doctor about the incident when he stepped into a hole in December 2010 (T18.5). Mr Arnold denied (at T19.28 and T20.6) that he had stepped into a hole on 19 January 2011, as suggested by Mr Harlen, a day on which he had not worked and therefore could not have been on a journey under the legislation.
Mr Arnold agreed that he worked 51 hours in the week up to 18 December 2010, 49 hours in the week up to 11 December 2010 (including one 12-hour shift) and longer hours in some weeks before that, and that he was “well and truly back to pre-injury” duties at that time (T21.21). Mr Harlen then put the following (starting at T21.23):
“Mr. Harlen: Again the week before that, 61 hours. That was a huge week. 47 hours, 61 again, 42, 60 and a half, these, these are big weeks that you, you were doing at that time. And then this, this incapacity arises again at about, well, there’s obviously you had a break for Christmas I’m assuming and the January you did not take up again the, the hours that you had previously worked. And so the incapacity arose around that December January period.
Mr. Arnold: I just, just say to you that one of the rules of the taxi department is if you are suffering pain and you cannot do wheelchairs, you cannot operate a Maxi taxi. That’s from the Ministry of Transport. Because my leg was sore, I went to the boss. I said I can’t work anymore hours on the, can’t do wheelchairs. These [sic, Knees] were hurting me and he said if you can’t do wheelchairs, you can’t do work. In other words, your hours have, have, have now been cut.
Mr. Harlen: Is, well, thank you, Mr. Arnold. If I can, just a couple more questions, if I can refer to page 46 again of the clinical notes [in exhibit 2]. Wednesday your hours had been cut because you, your boss cut your work. Didn’t Dr. Knight certify in December that you could only work 15 hours a week because of your various medical conditions?
Mr. Arnold: Yes.” (emphasis added)
I have listened to the recording of the evidence, which reveals that the emphasised part of the transcript is incorrect. Mr Arnold did not say, “[t]hese were hurting me”. He said, “Knees were hurting me”.
Mr Arnold denied telling Dr Knight that he could not work at all or that he was totally unfit, adding that he told him that he was working part-time. He also denied telling Dr Billett or Dr Hopcroft that he had stopped work completely, but he agreed he told both doctors that his incapacity was, in his view, due to his right knee injury. Mr Arnold said that he has continued to work for the respondent, but in a bus, not a normal taxi, and only for 12 hours per week spread over four three-hour shifts over two days.
In re-examination, Mr Arnold said that he stepped into the hole in December 2010, before Christmas, after being dropped off at the end of a night shift by Sebastian Lebolsi, one of the respondent’s directors, who lived next door to him. Mr Lebolsi did not witness what happened, he just dropped the worker off “and drove off” (T27.22). Mr Arnold’s knee pain was worse for about a week and “then it was just how it had been all the time before” (T27.28).
Mr Arnold agreed (at T28.28) that he told Dr Summersell on 10 February 2011 that, prior to standing in the hole, he was still getting pain in his knee after shifts, but he was coping with it and that, since the increased symptoms, he had reduced his hours to 15 per week. When asked why he reduced his hours, Mr Arnold said:
“The reason I reduced my hours is because I couldn’t cope with the work that I was been [sic] given in the Maxi taxis. I didn’t take a break over Christmas because I could have worked as many taxi hours, Maxi taxi hours as was required by me. That wasn’t the reason I took the break. I applied to go on the invalid pension because I didn’t want to be seen to be bludging on everybody or trying to claim compensation. So I thought the best effort for me was to go on a, the compensation, the invalid pension and stayed right out of it. And until I received the letter from the insurance company asking for a medical certificate to be written, given to them, I had no idea of claiming any more compensation.”
I have listened to the recording of the evidence and the transcript quoted is generally accurate. Mr Arnold gave inconsistent evidence about whether he took a break over Christmas. Regrettably, neither the legal representatives nor the Arbitrator asked him to clarify his evidence.
Asked about how he felt at the time of the arbitration, Mr Arnold said (at T29.28) that he felt much the same as before (presumably, before the incident when he stepped into the hole) and that his “knees [sic] still permanently swollen all the time” and he could not “work [sic] on it properly and I can’t do any bending”. The recording reveals that Mr Arnold said “walk” not “work”.
With respect to his other medical conditions, Mr Arnold said that he had those conditions before the accident in June 2009, but they had not prevented him from working after the accident. Dr Linjawi, his endocrinologist, and Dr Waite, his cardiologist, had both cleared him to drive.

Medical evidence

Mr Arnold has been treated for numerous non-work related medical conditions over the years. These have included: diabetes, cellulitis, peripheral neuropathy, increased blood sugar, generalised osteoarthritis, elbow pain, ischaemic heart disease, hyperlipidaemia, burning (pain) in his feet, pain in his ankles and tennis elbow.
Dr Stephen, orthopaedic surgeon, saw Mr Arnold at the request of QBE on 1 October 2009. In his report of that date, he noted that Mr Arnold was markedly obese and was a borderline diabetic. He had had a coronary bypass in 2000 and a stent in 2007. He also had several episodes of cellulitis in the right leg below the knee, the first in about 2000/2001 and the last in 2007. On the last occasion, he was admitted to hospital for two weeks.
With respect to the injury on 26 June 2009, Dr Stephen diagnosed a continuing aggravation of a pre-existing degenerative condition. At the time of the examination, Mr Arnold was working his usual hours as a bus driver but “somewhat restricted hours as a taxi driver because he is unable to drive maxi taxis and cope with wheelchairs”. Dr Stephen thought that was appropriate and that Mr Arnold’s incapacity was ongoing.
Dr Knight has treated Mr Arnold since December 1999. He has produced a document headed “Patient Health Summary”, which lists all of the conditions for which he has treated Mr Arnold in that time. However, his detailed clinical notes do not commence until 16 November 2010 when Mr Arnold saw him, complaining of panic attacks, not coping with work, depression, and waking in the middle of the night with chest pain and a sensation of panic.
On 16 November 2010, Mr Arnold attended the Black Dog Institute. A Mood Assessment Program report was prepared and sent to Dr Knight. The copy included in the evidence is very difficult to read, but it records that Mr Arnold’s overall functioning score was 17. Above 12 was “severely impaired functioning”.
Dr Knight next saw Mr Arnold on 29 November 2010. Under “Reason for visit”, he wrote “NON-MELANCHOLIC DEPRESSION Centrelink form”. The Centrelink form is the document on which Mr Harlen attempted to cross-examine Mr Arnold. The document is headed “Medical Report Disability Support Pension”. Part 3 of the report seeks details of the “conditions that have a significant impact on the patient’s ability to function”. Conditions are to be listed in “order of degree of impact on ability to function, starting with conditions with most impact”. Under “diagnosis” for “condition 1”, Dr Knight listed “Diabetes/Cellulitis/Peripheral neuropathy”. Under “current symptoms”, he listed “constant burning feet secondary to peripheral neuropathy, some difficulty with BSL [blood sugar level] control”.
On the next page of the report, still under “condition 1”, Dr Knight listed under “diagnosis”, “generalised osteoarthritis, bilateral knee osteoarthritis, elbow pain”. Under “history”, appears “H/O generalised OA. Has had (R) TKR [total knee replacement] 2010”. Under “current symptoms”, appears “pain feet (L) knee & both ankles”. Under “current treatment” appears “some generalised osteoarthritis. Knee pain”. Under “Impact on ability to function” is recorded “difficulty sitting ~~from~~ for long periods”. The condition was expected to deteriorate within the next two years.
Under “condition 2”, Dr Knight noted “depression” with a history of mood instability and insomnia for the past two months. Under “Impact on ability to function”, Dr Knight recorded “difficulty at work place”. What difficulty is not explained.
The next two pages of the document are identical, but the top of the first page has been chopped off in copying. Under “condition 1” is listed “diabetes”. The impact of the condition on the patient’s ability to function is described as “difficulty sitting for long periods”.
The next page lists “condition 2” as “ischemic heart disease, CAGG [sic] 2000, hyperlipidaemia, infarct 2005, stent 2007”. The date of onset is given as 1999. His current symptoms were “SOB [shortness of breath]”. Under “impact on ability to function” is recorded “some palpitations & SOB”.
Mr Arnold saw Dr Stephen again on 9 December 2010. In his report of 15 December 2010, Dr Stephen noted that Mr Arnold had a right knee replacement on 11 January 2010 and had resumed work in July 2010, initially part-time and then full-time. His current situation was that he drove a bus on Mondays and Tuesdays, a hire car on Wednesdays, and a maxi-taxi on Thursdays and Fridays. On week two, he drove a bus on Monday, Tuesday and Wednesday, and a maxi-taxi on the Thursday and Friday. He worked up to 42 hours per week and was “managing”, but added that he had to “in order to make a reasonable income”.
Dr Stephen recorded that Mr Arnold got pain “particularly after a long day’s work”. He was occasionally pain free, but most of the time had some pain. His knee was swollen and tired at the end of the day, when he took analgesics. He had trouble putting on his socks. He was able to walk more than one kilometre, though the knee swelled and got sore. He was troubled by depression and took medication for it. Under “opinion of Mr Arnold’s fitness for work”, Dr Stephen wrote that Mr Arnold was back to his pre-injury duties “which is something of an achievement given his age and the hours of work”.
Dr Knight saw Mr Arnold on 15 December 2010. The doctor’s notes record a diagnosis of “paraesthesia ulnar nerve mononeuropathy”. Under “Reason for visit”, Dr Knight recorded:
“Centrelink TDR
Has been asked to reduce hours by Centrelink
Paraesthesia
Right forearm burning sensation
Ulnar nerve mononeuropathy”

Dr Knight wrote to Centrelink on 15 December 2010 stating that, because of his multiple medical problems, he recommended that Mr Arnold reduce his work hours to no more than 15 per week for the next two years.
Mr Arnold failed to attend an appointment on 6 January 2011, but telephoned for a script for Plavix, a drug that helps prevent blood clots.
On 19 January 2011, Mr Arnold saw Dr Knight. The notes record:
“Diagnosis:
Right knee instability
Reason for visit:
Right knee replacement
Right knee instability
Collapsing right knee post TKR, joint not stable
Getting pain at night and has to take analgesic
Being reviewed by Dr Summersell
Actions:
Letter printed.
Letter written re. WC Progress 19/1/11.”
Dr Knight issued a WorkCover certificate on 19 January 2011, certifying Mr Arnold fit for suitable duties from that date for 15 hours per week. He said that Mr Arnold had the following capabilities for up to 15 hours per week: lifting up to 10 kg, sitting up to two hours, travelling up to six hours, walking up to 30 minutes, and standing up to 30 minutes.
Dr Knight saw Mr Arnold on 2 February 2011 because of pain in both knees. Dr Knight arranged for x-rays of the left knee and referred Mr Arnold to Dr Summersell. The x-rays revealed early osteoarthritis.
On 2 February 2011, Dr Knight completed a document headed “MLC Treating Doctor’s Report”. Under “Current diagnosis, when and how was this made?” Dr Knight wrote “bilateral knee osteoarthritis, IHD [ischemic heart disease], NIDDM [cellulitis]”. Dr Knight considered that Mr Arnold would suffer from residual disablement that may affect his ability to carry out his occupation.
Also dated 2 February 2011 is section C of a document headed “First Notice of Claim for Illness or Injury” on a letterhead for GE Money. Under diagnosis, Dr Knight listed “IHD, NIDDM, bilateral knee pain, (R) TKR, (L) OA”. Mr Arnold was first treated for the condition on 26 June 2009. Under “details of the accident” is recorded “Slipped on step”, which I assume was a reference to the work accident that is the subject of the current claim before the Commission. Under “Doctor’s Statement”, the following is printed on the form, with the dates added in the doctor’s handwriting:
“To the best of my knowledge, the patient has been entirely prevented from engaging in all the duties of an occupation for which he/she is reasonably suited by education, training or experience.
From 14.1.11 To: 14.4.11”
Dr Knight recorded that Mr Arnold last worked on 13 January 2011.
Mr Arnold’s employer allegedly completed section B of the document of 2 February 2011. In answer to the question “Has the employee returned to work?” the box “Yes” was marked but crossed out and a cross placed adjacent to the “No” box. It was “unknown” if Mr Arnold would return to partial duties.
On 10 February 2011, Mr Arnold saw Dr Summersell. Dr Summersell wrote the following report to Dr Knight:
“I saw John again today. He is now 12 months post right knee replacement. He feels he had been going along pretty well until three weeks ago when he slipped when he stood in a hole. The knee buckled on him. He has noticed significant anteriomedial pain since and he also feels that the knee swells. Prior to standing in the hole he was still getting some pain in the knee after a shift at work but was coping with regards to his knee. Since the increased symptoms he has reduced his hours at work to 15 hours a week, prior to this he was working normal hours.
Examination: tendor [sic] anteromedial aspect at proximal tibia, range of motion less than 5% fixed flexion deformity to 105% flexion, small effusion, knee stable.
I will see John again when he gets an x-ray of the knee.”
Dr Summersell reported again to Dr Knight on 17 February 2011:
“I saw John again today with his x-ray.
X-ray: good position and fixation.
John feels his knee is getting along pretty well today as he has not been at work.
John will see me again at about the five year mark with a new x-ray. He will see me earlier if there are problems but this would not be expected.”
On 25 February 2011, Mr Arnold saw Dr Knight, complaining of having had right heel pain for two days. Dr Knight certified him unfit for his usual occupation from 14 January 2011 until 11 April 2011 because of “diffuse osteoarthritis both knees”.
On 28 February 2011, Dr Hopcroft, general surgeon, examined Mr Arnold at the request of his solicitors. Dr Hopcroft recorded that Mr Arnold worked full-time until his injury to his right knee, “which ultimately saw him have to leave the workforce and he is now on a Disability Pension”. Under “current status”, Dr Hopcroft recorded that Mr Arnold continued to have significant ongoing soreness and swelling in his (right) knee joint and he hoped to control that with analgesics. He developed a reactive depressive illness and took Avanza for that. With respect to Mr Arnold’s cessation of duties, Dr Hopcroft said:
“Failing to be able to cope with the full-time return to work duties he finally went off work in December 2010 and is now on a Disability Pension.”
Though Dr Hopcroft did not expressly deal with Mr Arnold’s capacity for work, he said that employment had been a substantial contributing factor to the alleged injury and the worker’s continuing incapacity for employment.
Dr Knight wrote to GE Money on 9 March 2011 stating that, in view of the medical conditions Mr Arnold suffers, Mr Arnold was “still unable to perform the duties of any occupation for which he is reasonably suited by education, training or experience”. Dr Knight listed Mr Arnold’s numerous medical conditions and stated that the primary condition preventing him from returning to work was his osteoarthritis. He concluded:
“[Mr Arnold’s] prognosis is not good. He may be able to have a TKR of his other knee, but his IHD and diabetes make it unlikely that he will be able to return to work.”
Dr Knight provided a further certificate to GE Money in April 2011, in which he certified Mr Arnold unfit from 12 April 2011 to 12 July 2011 because of “osteoarthritis both knees, TKR R knee”.
Dr Knight prepared a WorkCover certificate on 8 April 2011, in which he certified Mr Arnold fit for suitable duties from 11 April 2011 to 13 July 2011 because of his right knee injury.
The next relevant attendance on Dr Knight was on 8 April 2011, when the reason for visit was recorded as “knee osteoarthritis NIDDM”.
On 19 April 2011, Mr Arnold saw Dr Billett, orthopaedic surgeon, at the request of MLC. In his report of 27 April 2011, Dr Billett took a brief history of the injury and the right knee surgery. He said that Mr Arnold was off work (after the surgery) until 1 July 2010, when he resumed driving a maxi-cab. However, that “aggravated his right knee and he had difficulty loading wheelchairs”. Thus, he ceased working. At the time of examination, Mr Arnold had marked swelling of his right knee, with constant daily pain, which increased at night. Kneeling, squatting and negotiating stairs or rough ground resulted in increased pain in his right knee. Giving way occurred on a few occasions. He also experienced a constant dull “toothache” in his left knee. He was not currently employed. If Mr Arnold sat in his automatic car for a long period with his right knee flexed, he experienced swelling and pain in the right knee.
Under “summary and assessment”, Dr Billett repeated that Mr Arnold was not currently working, as he could not drive a maxi-cab and could not unload luggage or wheelchairs. In addition to the marked swelling of the right knee, Dr Billett noted a decrease in active movements. Based on his physical examination, Mr Arnold was not fit to return to driving maxi-cabs, as he would have difficulty sitting for long periods, and frequently getting in and out of the vehicle would aggravate his knee symptoms. In addition, he could not load wheelchairs. He thought that Mr Arnold was permanently disabled “in relation to working as a maxi-cab driver”.
Dr Billett added:
“Mr Arnold could not return to work as a maxi taxi driver as sitting in the vehicle for a long period of time, getting in and out of the vehicle and loading and unloading luggage and wheelchairs would aggravate his knee symptoms. There would not be light duties associated with driving a maxi taxi. He would have difficulty loading and unloading wheelchairs and luggage and sitting for a long period of time and climbing in and out of the vehicle will aggravate his right knee symptoms. Thus, I do not consider that he could return to work as a maxi taxi driver, and his prognosis is guarded.”
On 9 May 2011, Mr Arnold saw Dr Linjawi for review of his type 2 diabetes mellitus. Mr Arnold’s blood sugar level was elevated, but Dr Linjawi gave him an authority to continue to drive taxis. Dr Linjawi understood that Mr Arnold had “ongoing issues with a recent knee replacement which continued to cause him discomfort”. He wondered if part of the cause of Mr Arnold’s elevated blood sugars related to that or whether his knee had been made worse by the impaired healing process as a consequence of the hyperglycaemia.
On 5 August 2011, Dr Waites completed a Medical Specialist Assessment Report Form, stating that Mr Arnold suffered from “stable coronary artery disease” and met the criteria for a “conditional driver authority” to drive a bus, taxi and/or private hire car.
On 15 August 2011, Dr Knight wrote to the respondent’s solicitors stating that the “incident at home” (the incident in either December 2010 or January 2011 when Mr Arnold stepped into a hole) had not affected the hours for which Mr Arnold was fit.

Other documentary evidence

Mr Arnold claimed under what I assume is a personal accident and disability policy held with GE Money.
On 8 April 2011, he stated to GE Money that he had not returned to casual duties, but did not answer whether he had returned to light duties. He also said that he had not performed any other work for compensation or reward, or received any form of income other than the disability pension.
On 15 June 2011, he stated to GE Money that he had not returned to casual duties or light duties and had not performed any other work for compensation or reward or received any income except for the disability pension.
Driver earnings statements produced by the respondent suggest that Mr Arnold worked essentially full-time up to 18 December 2010. After that day, he worked on the following days in the 2010 Christmas and New Year period: 24, 25 and 31 December 2010 and then on 7, 8 and 14 January 2011. After that date, he worked on 21 and 31 January 2011 and 7, 8, 14, 15, 21 and 22 February 2011, and 1, 4, 7, 8, 14, 15, 21, 22, 28 and 29 March 2011. He also worked on 4, 5, 21 and 24 April 2011 and several days in May. Most of these shifts were from 6.30 am until 4.30 pm.
The driver earnings statements from May to August 2011 suggest that Mr Arnold worked 20 hours per week in that period, not 12 hours per week. However, the respondent agreed at the arbitration that Mr Arnold’s actual earnings (step two in Mitchell) were $300 per week (see Mr Harlen’s written submissions to the Arbitrator dated 14 September 2011 at [70]).

THE ARBITRATOR’S DECISION

The Arbitrator noted the worker’s non-work related conditions (at [16]) to be diabetes, cellulitis, peripheral neuropathy, blood sugar control, generalised osteoarthritis, bilateral knee osteoarthritis, elbow pain, depression, ischaemic heart disease, a coronary artery bypass graft, hyperlipidaemia, infarction and stent, palpitations, shortness of breath, burning feet, pain in both ankles and tennis elbow.
The Arbitrator said at [32]:
“I accept the figures offered by the applicant in his submissions of his probable earnings as the first step in the Mitchell Test, being $929.35 less the $300 being the actual earnings providing a figure of $629.35, which will need to be adjusted for a statutory rate for a worker with a dependent spouse. However, before such an order is made I need to consider whether the evidence suggests that his incapacity is due to a novus actus or some other factor other than the 26 June 2009 injury or something which happened to the applicant in December 2010, when he alleges he was dropped off from work by a director of the respondent.”
Dealing with the hole incident, the Arbitrator said (at [35]):
“I do not believe that the applicant has proved that the incident occurred as a journey claim. In any event the applicant says that it only had a temporary impact upon his right knee.”
I assume that the Arbitrator accepted Mr Arnold’s evidence that the hole incident had only a temporary affect on his right knee and did not contribute to his continuing incapacity.
With respect to the issue in dispute on appeal, namely, Mr Arnold’s incapacity after 19 January 2011, the Arbitrator noted that Mr Arnold had suffered a significant injury on 26 June 2009 that led to a total knee replacement in January 2010. He then (at [36]) referred to Mr Arnold’s evidence about his continuing knee symptoms and that he often worked shifts that were beyond his limits because he needed the money to live on. Even since he had been on 15 hours a week, Mr Arnold said he still had difficulty sitting in the taxi for hours on end, which made his right knee painful, and he struggled to get in and out of the taxis or to assist passengers with their luggage.
The Arbitrator concluded at [37]:
“The applicant presents with a complicated medical presentation. He has a number of very significant medical problems. His weight also may have an impact upon his knees. However, in the circumstances, keeping in mind what Dr Knight said on 15 December 2010 as to his medical restrictions being due to his multiple medical problems, I cannot accept that the 15 hours restriction as a maximum per week results solely to [sic, from] the applicant’s right knee condition. I think in the circumstances and doing the best I can, were it only for the applicant’s right knee condition I would have put him on a restriction of 30 hours per week. That means that keeping in mind the figures earlier advanced by the applicant as his capacity to earn, I would suggest he has the capacity to earn $600 per week and that taking away from that the sum of his probable earnings of $929.35 per week, that presents him with a section 40 compensation amount of $329.35 per week. I can see no grounds as to why that sum should be reduced in the exercise of my discretion. No grounds were submitted by the respondent as to why I should exercise my discretion to reduce that sum of money.”

SUBMISSIONS

Mr Arnold’s main challenge is that the Arbitrator’s decision has not disclosed his reasoning for departing from the principles in Aitkin. Nor has he explained why he arbitrarily determined Mr Arnold’s capacity to work to be 30 hours per week. The appellant’s further submissions may be summarised as follows:
(a)     the Arbitrator failed to address the factors in s 43A of the 1987 Act in determining what was suitable employment for Mr Arnold;
(b)     the Arbitrator failed to consider or address the significant amount of other relevant medical evidence, as well as evidence from Mr Arnold, in making the assessment of 30 hours per week;
(c)     the Arbitrator focused exclusively on Dr Knight’s records without considering or weighing the other relevant evidence;
(d)     the Arbitrator appears to have accepted Mr Arnold’s evidence, though he did not say so in his reasons. He accepted that Mr Arnold had been very motivated to perform work and stoically put up with a lot of pain and worked on despite being in pain after his shifts. Mr Arnold’s credit was not damaged in cross-examination;
(e)     most, if not all, of Mr Arnold’s (non-work related) medical conditions existed before his injury on 26 June 2009 and did not prevent him from working as a taxidriver;
(f)      the Arbitrator referred to Dr Knight’s evidence and the restrictions on 15 December 2010 without considering and weighing the other relevant evidence;
(g)     Mr Arnold’s position was that his other medical conditions had not prevented him from returning to and continuing his work as a taxidriver;
(h)     the Arbitrator’s finding was against the weight of the evidence and the principles in Aitkin, and
(i)      the Arbitrator failed to deal with s 48 of the 1987 Act.
On behalf of the respondent, Mr Harlen submitted that, consistent with Aitkin, the Arbitrator said (at [32]) he had to consider whether the evidence suggested that Mr Arnold’s incapacity was due to a novus actus or some other factor other than the injury on 26 June 2009. He considered that evidence and concluded that Mr Arnold’s earnings had been reduced by something unconnected with his work injury, namely, his “complicated medical presentation”, including “a number of very significant medical problems”. He therefore assessed that Mr Arnold’s actual earnings were not a proper test.
The Arbitrator has given adequate reasons for finding that Mr Arnold’s restriction to 15 hours per week from 19 January 2011 is not related solely to the condition of his right knee and why his capacity to earn is $600 per week. The Arbitrator’s reasons should be read as a whole. It was not necessary for him to refer to every piece of evidence, but only to articulate the essential ground or grounds upon which the decision rests.
Concerning the finding that the restriction of 15 hours per week was not related solely to the right knee injury, the Arbitrator referred to the medical certificate of Dr Knight dated 15 December 2010 and stated that the restriction to 15 hours was because of “multiple medical problems”. Those problems were specified at [16] of his decision and, in the same paragraph, the Arbitrator referred to Mr Arnold having been cross-examined in relation to those multiple medical conditions and about the application to Centrelink. The Arbitrator referred (at [17]) to Mr Arnold having been asked why he did not seek treatment from Dr Knight in relation to his right knee in December 2010.
At [30], the Arbitrator noted that Mr Arnold had been certified fit for his pre-injury duties from 19 July 2010 and suffered no incapacity in respect of his right knee from that date until 19 January 2011. The Arbitrator pointed out (at [35]) that Mr Arnold was certified fit for work for 15 hours per week by Dr Knight on 15 December 2010, with no evidence in Dr Knight’s medical records that Mr Arnold was suffering from a right knee injury at that time.
Having highlighted the above parts of the evidence, the Arbitrator then found that 15 hours per week was not related solely to Mr Arnold’s right knee injury. It was open to him to make that finding and the Arbitrator articulated the essential grounds upon which the finding rests. In highlighting some pieces of evidence as carrying more weight than others, the Arbitrator has implicitly set out his preferences and reasons for coming to the conclusion he reached. It was not incumbent on the Arbitrator to list, refute or criticise every piece of evidence with which he did not agree.
After finding that the restriction of 15 hours per week was not referrable to the right knee injury only, it was incumbent upon the Arbitrator to then make a finding as to what restriction flowed from the work injury. Taking his reasons as a whole, it was open to the Arbitrator to find an ability to earn of $600 per week. His reasons were adequate and it was not necessary for him to consider s 43A.
Section 48 is not applicable because Mr Arnold does not have an incapacity as defined by that section, namely, a total incapacity for work by disease or other cause not entitling him to compensation under the 1987 Act at a time when the total or partial incapacity for work would otherwise have resulted from the injury.

DISCUSSION AND FINDINGS

While the Arbitrator acknowledged that Mr Arnold has a number of complicated medical problems, whether those problems meant that his earnings after 19 January 2011 were not a proper measure of his ability to earn required an assessment of all of the relevant evidence. There was extensive evidence tendered that the Arbitrator did not consider.
The Arbitrator did not refer to the majority of the evidence or the issues raised by that evidence. He merely concluded that Mr Arnold had a complicated medical history and a number of significant health problems. Notwithstanding his other medical conditions, Mr Arnold had continued to work full-time until mid-January 2011. The presence of a complicated medical history and other medical conditions did not automatically mean that Mr Arnold’s earnings from 19 January 2011 were not a proper measure of his ability to earn.
Mr Arnold’s oral evidence (see [31] above) suggested that his hours were reduced by his boss because he could not “do wheelchairs” because his knees were hurting him. The inference is that that occurred in January 2011. On the other hand, Dr Knight’s clinical notes for 15 December 2010 reveal that Centrelink had asked Mr Arnold to reduce his hours. Dr Knight made no reference to knee symptoms in the attendance on 15 December 2010 and his short report of that date merely referred to Mr Arnold’s “multiple medical problems”. Whether that included his right knee problems is unclear.
The Arbitrator did not refer to the evidence from Dr Waites and Dr Linjawi to the effect that, notwithstanding Mr Arnold’s heart condition and his blood sugar problems, he was able to work as a taxidriver. Nor did he refer to the evidence from Drs Hopcroft, Billett or Stephen, who all addressed the question of Mr Arnold’s incapacity as a result of his knee injury.
While an Arbitrator does not have to refer to every piece of evidence, “a failure to examine all of the material relevant to the particular issue” is an error (Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130]). The Arbitrator erred in failing to examine a substantial body of evidence relevant to the issues in dispute. If the Arbitrator was of the view that Mr Arnold’s actual earnings were not a proper measure of his ability to earn, he had to explain why that was so by reference to the relevant evidence. He did not do that. He merely decided that $300 per week was not a proper measure of Mr Arnold’s ability to earn because he had a number of significant medical problems and his weight may have had an impact on his knees. That did not comply with his statutory obligation to provide reasons for his determination (s 294(2) of the 1998 Act).
It is true that an attempt was made to cross-examine Mr Arnold about his multiple medical conditions and that the Arbitrator referred to that cross-examination. However, his only reference to it was at [16] of his decision, where he merely said that the “cross-examination consisted of attention to other non-work related medical conditions from which [Mr Arnold] suffers”. As I noted at [27] above, Mr Harlen put very few specific propositions to Mr Arnold and elicited very few relevant answers. One answer that was relevant was the answer (noted at [31] above) that Mr Arnold went to his boss and said he could not do wheelchairs because his leg was sore and his knees were hurting him, and the boss said his hours “have now been cut”. The Arbitrator did not refer to this important evidence, which was critical in determining if Mr Arnold’s wage after 19 January 2011 was a proper measure of his ability to earn.
It is also true that (at [17]) the Arbitrator referred to Mr Arnold having been asked why he did not go to see the doctor about his right knee in December 2010. However, the question was asked in the context of Mr Arnold’s allegation that the hole incident occurred in that month. In any event, the Arbitrator did not refer to Mr Arnold’s response, which was that his knee was hurting (T17.25–18.1).
The submission that the Arbitrator noted (at [30]) that Mr Arnold had been certified fit for his pre-injury duties from 19 July 2010 and suffered no incapacity in respect of his right knee from that date until 19 January 2011 was inaccurate. At [30], the Arbitrator merely set out the respondent’s argument and the worker’s claim. He made no finding that Mr Arnold suffered no incapacity in respect of his right knee from 19 July 2010 until 19 January 2011.
The reference to the Arbitrator saying (at [35]) that Mr Arnold was certified fit for work for 15 hours per week by Dr Knight on 15 December 2010, with no evidence in Dr Knight’s medical records that Mr Arnold was suffering from a right knee injury at that time, was misleading. The Arbitrator’s reasons at [35] were directed to whether Mr Arnold had suffered an injury to his right knee when he stepped into a hole on his way home from work in either December 2010 or January 2011. In that context, he said that Dr Knight’s records “did not reveal any incident occurring in December 2010 which led to an aggravation of [Mr Arnold’s] right knee”. He concluded that Mr Arnold had “not proved that the incident occurred as a journey claim” and, in any event, Mr Arnold said it only had a temporary impact on his right knee, which the Arbitrator accepted. These findings have not been challenged on appeal.
I do not accept Mr Harlen’s submission that the Arbitrator set out the essential ground for his finding. The Arbitrator said that he could not accept that the 15-hour restriction resulted “solely to [sic, from] [Mr Arnold’s] right knee condition”. He did not explain how Mr Arnold’s other health condition affected his ability to earn. In circumstances where the unchallenged evidence, which the Arbitrator did not refer to, was that Mr Arnold’s heart condition and his diabetes did not prevent him from holding a taxi licence, it is difficult to see why the Arbitrator formed the view he did. Contrary to Mr Harlen’s submission, the Arbitrator did not suggest that some parts of the evidence carried more weight than other parts; he failed to consider most of the relevant evidence.
Given that all of the orthopaedic specialists who examined Mr Arnold felt that he was totally unfit for his pre-injury job as a taxidriver because of his knee injury, albeit based on the wrong history that Mr Arnold was not working, it is difficult to see how the Arbitrator concluded that, having regard to the knee injury alone, Mr Arnold had a capacity to work 30 hours per week. Even if Mr Arnold’s other medical conditions have contributed to a reduction in his capacity to earn, that fact alone would not justify a finding of an ability to work for 30 hours per week based on the knee injury.
It may be that Mr Arnold’s inability to work more than his current hours is the result of several concurrent conditions, some work-related and some not. Even if that is so, if, regardless of his other medical conditions, his right knee injury is restricting him to his current hours, he may still be entitled to the full difference between his probable earnings but for injury and his actual earnings. While a worker is only entitled to compensation for so much of his or her loss as has resulted from the injury (Williams v Metropolitan Coal Co Ltd [1948] HCA 8; 76 CLR 431 per Starke J at 444), a loss can have more than one cause (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; 237 CLR 656; Calman v Commissioner of Police [1999] HCA 60 at [38]; 73 ALJR 1609; Conkey & Sons Ltd v Miller (1977) 51 ALJR 583). The Arbitrator failed to consider these principles.
Where a worker is earning after an injury, those earnings will provide prima facie evidence of his or her ability to earn (Aitkin). If it is proved that a worker’s actual earnings are not a proper test of his or her ability to earn, then the worker’s ability to earn on the open labour market must be used. That will occur where it is shown that the worker is “deliberately taking lower-paid work than he could get, or is idling and on this account receiving less than he could be reasonably expected to obtain, or where his actual earnings have been compulsorily reduced by something unconnected with his injury or general earning power” (Aitkin at 23).
The Arbitrator failed to apply the above principles. He merely said that he could not accept “that the 15 hours restriction as a maximum per week results solely to [sic, from] [Mr Arnold’s] right knee condition”. That was not the correct approach. He should have asked whether Mr Arnold was deliberately taking lower paid work, idling, or if his earnings had been reduced by something unconnected with his injury, and should have considered that question by reference to the relevant evidence.
If it were appropriate to find that Mr Arnold’s earnings of $300 per week were not a proper measure of his ability to earn, the Arbitrator was required to assess Mr Arnold’s ability to earn on the open labour market. This required him to consider all the relevant evidence and the terms of s 43A. He failed to do that.
The respondent submitted at the arbitration that Mr Arnold’s incapacity resulted from the hole incident, that his multiple medical conditions had a “major impact on [Mr Arnold’s] ability to function”, and that it was open to the Arbitrator to determine that the “other medical conditions are the cause of some of [Mr Arnold’s] incapacity” (Mr Harlen’s written submissions dated 14 September 2011 at [87]). In response, Mr Langler submitted, among other things, that the hole incident was only a temporary aggravation and that Mr Arnold’s other medical conditions had not stopped him from working in the past.
The Arbitrator determined that the hole incident had only a temporary effect and, as noted, neither side has challenged that finding. He appears to have accepted Mr Harlen’s submission that Mr Arnold’s other medical conditions caused some of his incapacity. He was wrong to do so without properly considering the principles in Aitkin and the evidence dealing with the effect of the work injury on Mr Arnold’s ability to earn.
It follows that the Arbitrator’s decision with respect to Mr Arnold’s entitlement to compensation from 19 January 2011 to date and continuing cannot stand.
Mr Langler has urged that the matter be re-determined in Mr Arnold’s favour. However, given the unsatisfactory state of the evidence, that is not the appropriate course in this case. The following matters need to be addressed before the case can be re-determined:
(a)     several of the doctors (including Dr Knight) have the incorrect history that Mr Arnold has stopped work. That needs to be addressed before a proper assessment can be made;
(b)     the resolution of the issues is difficult in the absence of a detailed medicolegal report from Dr Knight;
(c)     there is no proper explanation from Dr Knight as to why Mr Arnold reduced his hours;
(d)     there are several references in the evidence to Mr Arnold suffering from depression and Dr Hopcroft referred to him having developed a “reactive depressive illness”. Whether the depression has resulted from the knee injury is not properly addressed in the evidence and, on the history recorded by Dr Knight, seems to be of considerable importance, and
(e)     Mr Arnold’s evidence needs to be brought up to date and properly deal with all issues.
In addition, I have found the cross-examination of Mr Arnold to be unhelpful in determining the issues in dispute. If it is seriously suggested that Mr Arnold reduced his hours because of his other health conditions and not because of his knee injury (and this proposition is inconsistent with Mr Arnold’s evidence noted at [31] above), that has to be properly and fairly put to him. That was not done in any meaningful way at the arbitration.
Last, the evidence and the parties’ submissions have not properly addressed why Mr Arnold reduced his hours. If it was because of his other health problems, the principles in Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 may be relevant. Those principles state that, in calculating a worker’s probable earnings but for injury, it is assumed that the worker’s pre-injury work (and wage) would have continued. If that assumption is incorrect, because the worker would have ceased work for reasons unrelated to the work injury, that is a matter to take into account in the exercise of the discretion under s 40(1) of the 1987 Act. Neither side has addressed this issue.

OTHER MATTERS

Mr Langler’s submissions about s 48 are misconceived. That section has no application to the facts of this case. It provides that compensation is payable in respect of an injury which, but for an existing incapacity, would have resulted in total or partial incapacity. The words “existing incapacity” are defined in s 48(3) to mean, “total incapacity for work by disease or other cause” not entitling the worker to compensation and existing at the time when the total or partial incapacity for work would otherwise have resulted from the injury. As there is no evidence that Mr Arnold suffered from an “existing incapacity”, as defined, s 48 has no application in this case.

CONCLUSION

The Arbitrator failed to consider relevant evidence, failed to give adequate reasons for his decision, and failed to consider the principles in Aitkin. The worker’s entitlement to compensation from 19 January 2011 to date must be re-determined. The fairest course is to remit the matter to another Arbitrator for re-determination in the light of such further evidence and submissions as the parties may present.
As neither party challenged the Arbitrator’s findings that the hole incident did not occur on a journey and was no more than a temporary aggravation that has not affected Mr Arnold’s capacity, those matters are no longer in dispute.

DECISION

Paragraph 2 of the Arbitrator’s determination of 9 December 2011, amended on 6 February 2012, is revoked and the applicant worker’s entitlement to weekly compensation from 19 January 2011 to date and continuing is remitted to a different Arbitrator for re-determination.
All other orders made in the determination of 9 December 2011, amended on 6 February 2012, are confirmed.

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
13 March 2012

I, MARGOT UNDERCLIFFE, 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