Bartter Enterprises Pty Ltd v Smith
[2006] NSWWCCPD 292
•6 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bartter Enterprises Pty Ltd v Smith [2006] NSWWCCPD 292
APPELLANT: Bartter Enterprises Pty Ltd
RESPONDENT: Daphne Betty Smith
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC19565-05
DATE OF ARBITRATOR’S DECISION: 23 March 2006
DATE OF APPEAL DECISION: 6 November 2006
SUBJECT MATTER OF DECISION: Reasons; weight of evidence; total incapacity
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Workplace Law
Respondent: White Barnes
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 23 March 2006 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 21 April 2006 Bartter Enterprises Pty Ltd (‘the Appellant Employer/Bartter’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 March 2006.
The Respondent to the Appeal is Daphne Betty Smith (‘the Respondent Worker/Mrs Smith’).
Mrs Smith was born on 3 September 1955 and is now 51 years of age. She completed her schooling in year eight and has not undertaken any additional training or education since then. Her working career started when she was about 20 years old when she worked at a cannery doing process work.
After a period out of the work force to care for her family she started work with Bartter as a process worker on 22 October 1998. Mrs Smith described the work as “basically work as a labourer” (Respondent Worker’s statement 7 September 2004, paragraph two).
On 30 March 2004 she fell at work and sustained injury to her face, head, neck and back. Her claim for compensation was accepted and she was paid voluntary compensation until 13 April 2005.
On 17 November 2005 an Application to Resolve a Dispute (‘the Application’) was registered in the Commission seeking weekly compensation from 14 April 2005 to date and continuing. By its Reply filed on 2 December 2005 the Appellant Employer denied that Mrs Smith was incapacitated. In the alternative, if she was incapacitated, such incapacity was unrelated to her injury of 30 March 2004. It also alleged that Mrs Smith was not entitled to compensation because she had failed to comply with the provisions of sections 47 and 48 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) in that she had failed to comply with Injury Management Plans and had failed to return to work on suitable duties with the Appellant Employer.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 15 March 2006 when it proceeded to arbitration hearing with oral evidence being given by Mrs Smith and oral submissions being made by the parties’ legal representatives.
In a reserved decision delivered on 23 March 2006 the Arbitrator made an award in favour of Mrs Smith for total incapacity under section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The Appellant Employer seeks leave to appeal that decision.
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 1998 Act.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. At least 20% of the amount awarded is “at issue” on appeal and, therefore, the condition in section 352(2)(b) is also 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.
PRELIMINARY MATTERS
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.”
The Appellant Employer submits that an oral hearing may be appropriate because of the wide ranging issues raised in the appeal. In addition, it submits that the intervention of the Easter holiday period has meant that its submissions are more concise than it would prefer and were made without the benefit of a transcript of the evidence or submissions.
In light of the above submissions I issued a Direction on 28 September 2006 inviting both parties to make further submissions. Each party has done so.
Having regard to Practice Directions Numbers 1 and 6, the documents that are now before me, and the submission by the Respondent Worker 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 DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 March 2006, records the Arbitrator’s orders as follows:
“1.Respondent pay the Applicant pursuant to section 37 of the 1987 Act weekly compensation at the maximum statutory rate for a worker with no dependants from 14 April 2005 to date and thereafter according to the provisions of the 1987 Act.
2.Respondent pay the Applicant’s medical expenses pursuant to section 60 of the 1987 Act upon production of accounts or receipts.
3.Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)forming opinions that had no basis in evidence (‘reasons’);
(b)failing to give reasons for rejecting Dr Yuen’s opinion that employment was no longer a substantial contributing factor (‘reasons’);
(c)failing to give a logical and probative reasons for rejecting Dr Yuen’s opinion (‘reasons’);
(d)failing to give logical or probative reasons for finding that Dr Yuen’s opinion did not correctly reflect the Respondent Worker’s capacity to work (‘reasons’);
(e)finding the Respondent Worker to be totally incapacitated for work contrary to the evidence (‘incapacity’);
(f)failing to give logical or probative reasons for finding that there was no accessible labour market for the Respondent Worker (‘accessible labour market’);
(g)making findings contrary to Rule 70 of the Workers Compensation Commission Rules 2003 (‘the Rules’) (‘Rule 70’);
(h)failing to consider the Appellant Employer’s supply of suitable duties (‘suitable employment’), and
(i)failing to take notice of the proximity of Griffith, Wagga Wagga, Narrranderra and Junee together with the availability of employment with the Appellant Employer (‘suitable employment’).
REVIEW
In Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 it was held that:
“39. A Presidential Member on appeal has a specific and limited role in the review of the decision of an Arbitrator. The review is not a rehearing, nor is the Presidential Member dealing with the matter de novo, nor is he or she arriving at a fresh decision based upon all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
In reviewing a discretionary judgment it has been held in Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSW WCC PD 73 that:
“Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.” (at [40])
I agree with and intend to apply the above principles in the present appeal.
SUBMISSIONS AND FINDINGS
Reasons
An Arbitrator’s obligation to give reasons is set out in Rule 73(1) which provides that a statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
“(a)the findings on material questions of fact, referring to the evidence or
other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning process that lead the Commission to the conclusion it made.”
Rule 73(2) adds that the reasons set out in subrule (1) are to be stated “sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
An Arbitrator’s obligation to give reasons has also been considered in numerous decisions by the Commission. In Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1 it was noted:
“58. Arbitrators of the Commission have a common law and statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act, Rule 73 of the 2003 Rules, Absolon v NSW TAFE [1999] NSWCA 311). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision.
59. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
60. The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. This approach is also applicable to the preparation of statements of reasons. However, the reasons must adequately convey to the parties the basis upon which the Arbitrator came to his or her decision.”
In the present case the Arbitrator’s Statement of Reasons for Decision (‘Reasons’) were detailed, carefully prepared and clearly expressed. He set out and considered the evidence and the parties’ submissions in detail before making his findings.
The Arbitrator’s first finding was that he was satisfied that Mrs Smith was a “genuine and truthful witness” (Reasons, paragraph 44). In these circumstances it is appropriate to bear in mind that such a finding was made by the Arbitrator after he had the opportunity to hear and see Mrs Smith giving evidence, including being cross examined. In Department of Education & Training v Jeffrey Sinclair [2004] NSWWCCPD 90 the President of the Commission said at [158]:
“. . . a Presidential Member of this Commission, reviewing an Arbitrator’s decision on appeal, should upset such a finding only if there is other “incontrovertible” evidence indicative of error, not adequately dealt by the Arbitrator at first instance. Fox v Percy (2003) 77 ALJR 989, c.f. Abalos v Australian Postal Commission (1990) 171 CLR 167. (See also the useful discussion in the judgments of the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588, especially that of Kirby J at 508ff, and the decision of Deputy President Fleming in Mayne Health Group v Sandford [2002] NSWWCCPD 6, pars 35-41).”
In summary, Mrs Smith’s evidence, which was accepted by the Arbitrator, was that:
· she lives on a farm at Wamoon near Leeton in NSW;
· she was one of 12 children and she left school at about year eight level to help out in the family business because her mother had died (transcript, page seven line 24);
· she has never used a computer (transcript, page seven line 52);
· she has never worked in a clerical job (transcript, page seven line 56);
· her work experience was limited to process work (transcript, page eight);
· she worked as a labourer with the Appellant Employer (Respondent Worker’s statement 7 September 2004, paragraph two);
· she has never held a driver’s licence (transcript, page nine line 28);
· Griffith was a 40 minute drive away (transcript, page eight line 25) and Wagga Wagga and Albury were two and a half hours away (transcript, page nine line 10);
· the only industry on Leeton is an abattoir and a rice mill where they do 12 hours shifts of the kind of process work Mrs Smith did at Bartter and for which she is now unfit (transcript, page eight line 39 and line 56);
· she was always in pain and cried for no reason (transcript, page 13 line 41);
· she complained to her general practitioner (Dr Yuen) about her low back on the day of her fall (transcript, page 14 line 28);
· she continued to have back, neck and left leg problems (transcript, page 14 line 36 to 56 inclusive);
· her pain has gotten worse (transcript, page 15 line two);
· she did not believe she could do any work at all (transcript, page 15 line five);
· she tried to go back to work with the Appellant Employer but couldn’t do it (transcript, page 15 line eight);
· pain in her neck and back stop her from working and the pain in each area is the same (transcript, page 15 line 11 to 14), and
· she has pain in her shoulders that stops her from lifting and carrying (transcript, page 15 line 23 to 26).
In cross examination Mrs Smith said:
· the contact with the rehabilitation people was not helpful and she used to leave “crying”, and she couldn’t do the exercises (transcript, page 18 line two to eight);
· she did not injure her back when she tripped over in the shower in July 2004 (transcript, page 18 line 21);
· she fell over when walking to get the phone at home on or about 11 August 2004 but that fall did not contribute to her injuries (transcript, page 18 line27 to 35);
· she was pushed in the back by children at Woolies in December 2004 which made her back feel worse (transcript, page 18 line 41 to 54);
· her neck pain was not her only problem when she first saw Dr Yuen (transcript, page 19 line 10 to 27);
· she denied not wanting to go back to work adding that she enjoyed work at Bartters and had friends there (transcript, page 20 line nine), and
· she resigned in May 2005 because she was told to.
After referring to the medical evidence the Arbitrator stated at paragraph 48 of his Reasons that he was:
“…satisfied on the medical evidence that despite the degenerative changes, that this woman fell heavily at work, which changed her from an active employee to one who is suffering considerable disability after injury due to her pain.”
The Respondent Worker’s medical case is fairly summarised in the reports of Dr Todhunter, specialist in anaesthesia and pain medicine, dated 14 September and 19 October 2005. In the September 2005 report the doctor said:
“While she might have some degenerative changes her pain cannot be attributed to that because almost certainly the changes were there prior to the fall and she had no pain prior to the fall. Logically therefore her pain is due to the fall and nothing else in a direct sense. To argue anything else would be illogical and not based on the history and what is known about persistent chronic pain.”
In his report of 19 October 2005 he stated:
“It is my opinion that as Mrs Smith’s pain came on after she fell heavily on to her forehead and face on a metal track system at work, there is no other reasonable explanation for her ongoing pain. Time wise it must be related to that event as prior to that she was very fit and active and had worked at Baarters [sic] for eight years doing heavy manual work whereas since the fall she has been quite incapacitated by her pain.”
The Arbitrator accepted the evidence of Dr Todhunter that Mrs Smith’s continuing incapacity for work resulted from her injury on 30 March 2004 (Reasons, paragraph 53).
The Arbitrator considered the Appellant Employer’s medical case in detail and found at paragraph 49 of his Reasons:
“I do not accept the Respondent’s case that this was a simple fall, and a short term aggravation of a pre-existing degenerative back, and that those symptoms had vanished by April 2005, enabling the worker to return to pre-injury duties, or light duties, as outlined above on the Respondent’s medical evidence.”
All of the above findings were open to the Arbitrator and I see no error of fact, law or discretion in them.
The more contentious evidence on appeal is the evidence of Mrs Smith’s treating general practitioner, Dr Yuen. His evidence consisted of several medical certificates together with his clinical notes. Apart from several brief periods in 2004 when he declared Mrs Smith fit for suitable duties, Dr Yuen declared her to be “unfit to work” from 6 September 2004 until his certificates of 13 April 2005. In the same period he certified that her employment was a substantial contributing factor to her injury.
On 13 April 2005 Dr Yuen was contacted by Jodie Trembath, occupational therapist engaged by The Rehabilitation Company (‘Rehabco’), the Appellant Employer’s rehabilitation provider. What was said at that meeting is partly set out in Ms Trembath’s report of 19 April 2005 at page three which reads:
“Rehabco met with Dr Yuen on 13 April 2005. The Occupational Therapist discussed Dr Huntsdale’s findings with Dr Yuen and advised him that Ms Smith’s NSW Workers Compensation Claim would now be finalised. Rehabco provided Dr Yuen with a copy of Dr Huntsdale’s report.
Dr Yuen met with Ms Smith later that day. He provided Mrs Smith with a final Workers Compensation Medical Certificate, on it marking that employment was not a contributing factor to her ongoing symptoms. Dr Yuen did however mark that Ms Smith had reached maximum medical improvement and was now fit for permanently modified duties.
Rehabco have since contacted Dr Yuen and requested that he amend the certificate taking into consideration only the initial work place aggravation and not the ongoing symptoms. Rehabco suggested that the final medical certificate should certify Ms Smith as fit for pre injury duties as the initial work place aggravation had now subsided. Dr Yuen has since amended the certificate as requested (see attached).
As Ms Smith’s Workers Compensation Claim is now finalised, Rehabco will close her [sic] occupational rehabilitation file. Please don’t hesitate to contact Rehabco if you have any further queries on 02 6964 9811.” (emphasis added)
Dr Yuen did prepare two certificates dated 13 April 2005, but not exactly as outlined above. One declares Mrs Smith “fit for pre injury duties”, and that employment is not a substantial contributing factor to the injury. The other certifies that Mrs Smith has reached maximum medical improvement and is fit for permanent modified duties.
In his report of 8 March 2005, Dr Huntsdale expressed the view that the original injury probably aggravated minor degenerative spondylosis and that the aggravation had “well and truly ceased” (page three). The Arbitrator rejected that evidence and it was open to him to do so. Dr Huntsdale also expressed the view that Mrs Smith was “unfit for work as she stands at the moment. There is no job she could do”. The view that Mrs Smith was not fit for any work was also shared by another of the Appellant Employer’s doctors, Dr Langenegger, who said at page five of his report of 16 October 2004 that he considered “that Betty is unfit for all duties” though he felt that that was largely due to “deconditioning”.
The Arbitrator concluded that he was not satisfied that Dr Yuen’s certificate’s correctly reflected Mrs Smith’s capacity to “return to pre injury duties in April 2005” (Reasons, paragraph 52). The Appellant Employer’s complaint is that this finding “appears to have been based on a finding that Dr Yuen had been convinced to change his opinion based on, but also contrary to, a suggestion of coercion by Ms Trembath” (Appellant Employer’s submissions B, paragraph one). I do not accept that submission. Whilst such a finding would have been open to the Arbitrator, he in fact said at paragraph 48 of his Reasons that he made:
“…no finding on any suggestion of coercion of Dr Yuen by the rehabilitation provider, but it is a co-incidence that Dr Yuen changes his view on total incapacity after a meeting with the rehabilitation provider on 13 April 2004 [sic 2005] and certifies that work is not a substantial contributing factor to injury after that time.”
It is also submitted that if the Arbitrator formed the view that Dr Yuen had been coerced into changing his mind then, in the absence of any suggestion by Mrs Smith that that was the case, the Arbitrator should have put the Appellant Employer on notice and allowed it to call evidence on that issue. I reject that submission as it incorrectly assumes that the Arbitrator formed the view that Dr Yuen had been coerced into changing his mind. In addition, the Appellant Employer was well and truly on notice that the Respondent Worker’s case was that the rehabilitation provider was “dictating to doctors…with a view to shoring up the position of the employer with respect to what this worker’s entitlements are” (oral submissions by counsel for Mrs Smith, transcript page 29 line eight). On behalf of the Appellant Employer it was submitted to the Arbitrator that there should have been a report from Dr Yuen explaining how he’d come to his conclusion. In the absence of such a report the following is beyond doubt: Ms Trembath set out in clear terms that she had:
· told Dr Yuen that the claim would now be finalised;
· discussed Dr Huntsdale’s findings with Dr Yuen, and
· requested that he amend his certificate taking into consideration only the initial work place aggravation and not the ongoing symptoms.
Given the above evidence the only reasonable inference is that Ms Trembath did influence Dr Yuen to change his certificates. I consider her actions to be more in line with those of an advocate for the employer than a rehabilitation provider. The manner of her approach to Dr Yuen was unreasonable and inappropriate.
Further, Dr Yuen did not certify that employment was not a contributing factor to Mrs Smith’s ongoing symptoms, as claimed by Ms Trembath. He certified on 13 April 2005, contrary to all of his earlier certificates, that employment was not a substantial contributing factor to the injury. Such a change of opinion was not entitled to be given any weight for two reasons: first, it was contrary to the well reasoned opinion of Dr Todhunter, a pain specialist, which the Arbitrator accepted, and, second, it involved a change of opinion that was unexplained.
Ms Trembath’s assertion that Dr Yuen certified that employment was not a contributing factor to Mrs Smith’s ongoing symptoms indicates a fundamental misunderstanding of the test to be applied. The proper question is: was employment a substantial contributing factor to the injury, not the symptoms flowing from the injury (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725 (‘Rootsey’)). If the answer to that question is ‘yes’, the next question is whether there is a direct chain of causation between the injury and the subsequent incapacity so that the latter can be said to have resulted from the former (Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 and Rootsey at 731). If Ms Trembath’s misunderstanding of the law was conveyed to Dr Yuen that may well explain his change in opinion. It is not necessary for me to decide this issue as the Arbitrator gave adequate reasons for not accepting Dr Yuen’s view set out in the two conflicting certificates of 13 April 2005.
The Arbitrator was satisfied on the issue of causation and I see no error of fact, law or discretion either in his conclusion or his approach.
Next, it is submitted that “if the Arbitrator formed the view that Dr Yuen was convinced that the worker’s employment was no longer a substantial contributing factor for medical reasons he should have given reasons for rejecting that opinion” (Appellant Employer’s submissions B ii). I do not agree that the Arbitrator has failed to give adequate reasons for rejecting Dr Yuen opinions as set out in his certificates of 13 April 2005. Dr Yuen’s opinions were not supported with any reasoning, but were merely ticks in a box on a WorkCover medical certificate. I have noted above why the Arbitrator was entitled to reject those opinions. His reasons were that he accepted the opinions of Dr Hillier and Dr Todhunter and he accepted the evidence of Mrs Smith about her continuing symptoms. He expressly rejected the Appellant Employer’s case that those symptoms had “vanished” by April 2005. Those reasons were adequate to comply with the Arbitrator’s statutory obligation to make known the reasoning process which led him to his ultimate conclusion. Neither his conclusion nor his reasoning process discloses any error of fact, law or discretion.
Having regard to the whole of the evidence it is my view that it was open to the Arbitrator to reject the opinions expressed by Dr Yuen in the two certificates of 13 April 2005.
Incapacity
It is submitted that the Arbitrator’s finding that the Respondent Worker was totally unfit for work was contrary to the evidence or based on inference without adequate evidentiary support (Appellant Employer’s submissions, A 3). Apart from this bald assertion, no other submissions are made to support this ground of appeal.
I do not accept this submission. The finding that the Respondent Worker is totally unfit for work is supported by the following evidence:
· the Respondent Worker’s own evidence at page 15 line five of the transcript was that she did not think she could do any work. This evidence was not challenged in cross examination;
· the opinion of Dr Huntsdale that Mrs Smith was unfit for work (report 8 March 2005);
· the opinion of Dr Langenegger that Mrs Smith was unfit for all duties (report 16 October 2004), and
· the opinion Dr Todhunter that “unfortunately she can not work” (report 14 September 2005).
The question of total incapacity was considered by the Court of Appeal in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 at 213 where Justice Mahony said:
“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 in the context which will produce income. I do not wish by what I say to narrow the scope of the enquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is highly or partially incapacitated and to what extent, the Court will not ordinarily 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 would permit him to do work in the relevant labour market.”
The principles set out by Justice Mahony are applicable in the present case. In light of the above authority, the evidence in the case and the Arbitrator’s finding as to the Respondent Worker’s credit, it is my opinion that the Arbitrator’s decision disclosed no error of fact, law or discretion.
Accessible Labour Market
It is submitted that the Arbitrator’s finding the there is no accessible labour market was unsupported by reasons or that the reasons were neither logical nor probative. I reject this submission.
The evidence about the labour market accessible to Mrs Smith was given in her oral evidence. That evidence was that Griffith was a 40 minute drive away (transcript, page eight line 25) and Wagga Wagga and Albury were two and a half hours away (transcript, page nine line 10). Significantly, the evidence is that Mrs Smith does not hold a driver’s licence (transcript, page nine line 28). The only industry in Leeton is an abattoir and a rice mill. The abattoir is “for the males” (transcript, page eight line 42). The rice mill provides 12 hour shifts in the kind of process work Mrs Smith did at Bartter and for which she is now unfit (transcript, page eight line 39 and line 56).
These matters were referred to in clear terms by the Arbitrator at paragraph [46] of his Reasons. I believe his reasons are adequate and disclose no error of fact, law or discretion.
Rule 70
Rule 70 provides:
“Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
The Arbitrator did not ‘inform himself on any matter’, but based his decision on the documentary and oral evidence before him. I reject the Appellant Employer’s submission that the Arbitrator’s findings were contrary to the principles set out in Rule 70. For the reasons set out above, I believe the Arbitrator’s reasons were adequate to comply with his common law and statutory obligation to give reasons. He relied on evidence that was logical, probative and, on several issues, unchallenged. The Appellant Employer had every opportunity to respond to that evidence and to cross examine Mrs Smith.
Suitable Employment
It is submitted that the Arbitrator failed to consider the Appellant Employer’s offer of suitable employment. I do not accept that submission. The Arbitrator dealt with the attempts at rehabilitation at paragraph 50 of his Reasons where he said:
“The Applicant’s attempts at rehabilitation show clearly that she was unable to do so due to that level of pain and disability. Her evidence of pain and disability in the hearing was impressive, and I am surprised at the suggestion that she is a malingerer. That is not her work history, and I accept her genuiness [sic] to attempt rehabilitation as required, and her attempts to return to work. I accept that she could not do either due to her continuing pain symptoms, caused by her injury at work with the Respondent.”
The Arbitrator also had regard to the content of Dr Yuen’s clinical notes which recorded Mrs Smith’s unsuccessful attempts to return to work with Bartter (Reasons, paragraphs 60 and 61).
The Appellant Employer argues that the Arbitrator drew inferences beyond the available evidence. I do not agree. The Arbitrator accepted the Respondent Worker as a genuine and truthful witness and accepted her medical case. It was open for him to do that and his approach discloses no error.
It is argued that the Arbitrator failed to take notice of the proximity of Griffith, Wagga Wagga, Narranderra and Junee together with the availability of employment with the Appellant Employer. I reject that submission. The Arbitrator made specific reference to Griffith, Wagga Wagga and Albury (Reasons, paragraph 46). The failure to refer to Narranderra and Junee is of no consequence and discloses no error.
DECISION
The Arbitrator’s decision dated 23 March 2006 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
6 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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