Bi-Lo Pty Ltd v Sorial
[2006] NSWWCCPD 271
•11 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bi-Lo Pty Ltd v Sorial & Anor [2006] NSWWCCPD 271
APPELLANT: Bi-Lo Pty Ltd
FIRST RESPONDENT: Romany Sorial
SECOND RESPONDENT: Franklins Ltd
APPELLANT’S INSURER: Coles Myer NSW Injury Services
SECOND RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 18603-04
DATE OF ARBITRATOR’S DECISION: 27 April 2006
DATE OF APPEAL DECISION: 11 October 2006
SUBJECT MATTER OF DECISION: Partial incapacity for work, and apportionment of liability for payment of weekly compensation
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Lander & Rogers Lawyers
First Respondent: Milicevic Solicitors
Second Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: The Arbitrator’s decision of 27 April 2006 is confirmed.
.
The Appellant, Bi-Lo Pty Ltd, is to pay Mr Sorial’s costs and those of the Second Respondent, Franklins Ltd, in this appeal.
BACKGROUND TO THE APPEAL
On 25 May 2006, Bi-Lo Pty Ltd sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 27 April 2006. The First Respondent in the appeal is Romany Sorial; the Second Respondent is Franklins Ltd. Franklins’ workers compensation insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’). Bi-Lo’s workers compensation insurer was Allianz from 8 October 2001 to 16 February 2002, and from 17 February 2002 Bi-Lo was a self-insurer through Coles Myer NSW Injury Services (‘Coles Myer’).
Mr Sorial was born in Egypt on 12 September 1961 and is aged 45. He migrated to Australia in 1992 and has a dependant wife and, at the time of the decision, had two dependant children, aged eight and nine, his wife also then being pregnant.
Mr Sorial was first employed by Franklins as a baker in their store at Campbelltown in about February 2000. With a change in ownership of the store, he was employed by Bi-Lo from 8 October 2001, and moved to the grocery section on 6 May 2002. Mr Sorial’s work in the grocery section involved “pushing and pulling pallets from the storeroom and distributing boxes on the floor” (statement dated 9 June 2004, paragraph 16). On 13 December 2002, in the course of working his shift, Mr Sorial experienced pain in his hands and wrists, shoulders, neck and back. On the next day he experienced numbness in his right leg. In the period before Christmas 2002, although continuing to work, Mr Sorial consulted his general practitioner, Dr R Lau, and was referred for x-rays, and for acupuncture and physiotherapy. On 10 January 2003, Dr Lau certified Mr Sorial as fit only for light duties. Mr Sorial remained on light duties until, on 28 July 2003, he was sent home.
Mr Sorial claims to have injured his left arm on 10 April 2000 when this was caught in a cooling machine, to have suffered burns to the back of his left hand in September 2000, and to have injured his arms, shoulders, neck, back and legs as a result of the incident on 13 December 2002 and the nature and conditions of his employment. After being sent home on 28 July 2003, his employment appears not to have been terminated formally until 25 August 2005. Bi-Lo paid Mr Sorial weekly compensation until 8 August 2003, but denied liability thereafter.
Mr Sorial has a Bachelor of Science and Education degree obtained in Egypt. In February 2004, Mr Sorial commenced a six months bridging course for teachers at TAFE. Having completed that course, from 19 August 2004 he was able to obtain occasional days of work as a casual teacher in Catholic schools in the diocese of Wollongong, earning $265.47 per day (statement dated 5 January 2005). However, because of the relatively few days teaching he was able to obtain and the relatively low level of pay, he undertook and completed a security officer course and obtained his security officer licence in September 2005 (statement dated 22 November 2005). Since 10 October 2005, he has been employed as a security officer.
On 29 September 2004 and 11 November 2004, Mr Sorial lodged ‘Applications to Resolve a Dispute’ with the Commission. These applications were consolidated in the proceedings before the Commission. The applications were in respect of Mr Sorial’s claims for (1) weekly compensation, (2) medical, hospital or related expenses, and (3) compensation for permanent impairment and pain and suffering.
The Arbitrator referred Mr Sorial to an Approved Medical Specialist (‘AMS’), Dr Peter Isbister, Orthopaedic Surgeon, for assessment of his impairment. On 27 June 2005, Dr Isbister’s Medical Assessment Certificate (‘MAC’) was issued, in which he assessed Mr Sorial as having a 2% permanent loss of efficient use of his left arm below the elbow attributable to an injury on 10 April 2000, a 5% whole person impairment of his lumbar spine in respect of his employment from 8 October 2001 to 28 July 2003 of which 2/5 was attributable to a pre-existing condition, and a 0% impairment in respect of other body parts. Mr Sorial’s application to appeal against this decision was rejected by a delegate of the Registrar because none of the specified grounds on which a medical assessment may be appealed (under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) had been made out.
On 1 December 2005, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing. On 23 December 2005, the Arbitrator made his decision. However, he later amended that decision and, on 27 April 2006, an amended determination was issued in the terms set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 27 April 2006, records the Arbitrator’s orders as follows:
“1. The Second Respondent to pay the Applicant weekly benefits pursuant to Section 38 of the Act between the 8th August, 2003, and the 7th February, 2004, at the award rate of $759.27, and totalling $19,741.02.
2. For the second period of 26 weeks from the 8th February, 2004 to the 7th August, 2004, the applicant is entitled to recover 80% of the Award rate being $607.41 totalling $15,792.80. This amount should be paid by the Second Respondent.
3. The Second Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act between the 8th August, 2004, and the 15th August, 2004, in accordance with the statutory maximum of $544.20 per week.
4. The Second Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act between the 16th August, 2004, and the 21st October, 2004, at the rate of $403.03 per week.
5. The Second Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act between the 22nd October, 2004 to the 31st March, 2005, in accordance with the statutory maximum of $554.20 per week.
6. The Second Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act between the 1st April, 2005 to the 30th September, 2005, in accordance with the statutory maximum of $563.00 per week.
7. The Second Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act between the 1st October, 2005 to the 9th October, 2005, in accordance with the statutory maximum of $574.50 per week.
8. The Second Respondent to pay the Applicant weekly benefits pursuant to Section 40 of the Act from the 10th October, 2005 to date at the rate of $103.64 per week and ongoing in accordance with the Applicant’s statutory entitlements.
9. The Second Respondent to pay the Applicant’s reasonable medical expenses pursuant to Section 60 of the Act upon production of accounts or receipts.
10. The First Respondent to pay the Applicant compensation with regard to 2% permanent impairment of his left arm below the elbow and in the amount of $1,400.00.
11. The Respondents to pay the Applicant’s costs as agreed or assessed (in equal shares).”
In his ‘Statement of Reasons for Decision’, the Arbitrator noted (at paragraph 3) that the parties had agreed that Mr Sorial became an employee of Bi-Lo on or about 8 October 2001, and that Allianz (which had been Franklin’s workers compensation insurer) was Bi-Lo’s workers compensation insurer until 16 February 2002, after which Bi-Lo was a self-insurer via Coles Myer.
The Arbitrator found that, on the balance of probabilities, the incident on 10 April 2000 was responsible for the injury to Mr Sorial’s left arm and, therefore, Franklins should pay Mr Sorial compensation for the 2% permanent loss of efficient use of that arm at or below the elbow in the amount of $1,400 (Statement of Reasons, paragraph B(ix)).
The Arbitrator made the following findings on incapacity for work (Statement of Reasons, page 12):
“i). The Applicant’s history is that he suffered an injury during the period of his employment with the Second Respondent [Bi-Lo].
He returned to work on suitable duties and was dismissed from that employment.
ii) There is no evidence before me which suggests that the Applicant would not still be in employment with the Second Respondent had his employment not been terminated. It may well be that the suitable duties would have altered to accord with a level of improvement, even if that improvement is not such as is argued for by Dr. Mastrionni, amongst others.
iii) Part of the Applicant’s history is of course that whilst he was employed by the Second Respondent he was prepared to accept a change in duties, appearing to reflect a lowering in status, from being a baker (who had formerly been a Head Baker) to the grocery section in which he appears to have had considerable manual duties. These ultimately gave rise to the injury which resulted from the lifting of boxes on the 13th December, 2002.
iv) Since his employment was terminated I am satisfied that the Applicant has sought alternative employment but has been forced to do so against the background of his having been terminated after a period on suitable duties.
v) I am satisfied that the Applicant has done the best he could to find new employment in the labour market which is available to him as a person who migrated to Australia in 1992, and to whom English is not his first language, although he now holds a teaching position.
vi) In the circumstances the Applicant has established an incapacity for work over the relevant period.”
With regard to Mr Sorial’s claim for weekly compensation under section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’), the Arbitrator stated (Statement of Reasons, pages 12 to 13):
“As regards the ingredients of Section 38 and Section 38A which sets out the criteria for determining whether a Worker is seeking suitable employment it is clear that:-
Ø The Applicant sought suitable employment whilst still with the Second Respondent and was placed on suitable duties.
Ø This position was brought to an end by the Second Respondent not the Applicant.
Ø As regards Section 38A (ii) the evidence establishes that:
a) The Applicant has been ready, willing and able to accept (indeed accepted) an offer of suitable employment from the employer (see above);
b) The Applicant has supplied a WorkCover Certificate containing “all information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker”.
c) The Worker did request employment which was provided for a period;
d) The Applicant continued to take reasonable steps to obtain suitable employment “from some other person” and in fact has done so.”
The Arbitrator found that Mr Sorial had a section 38 entitlement for the period 8 August 2003 to 7 August 2004 (Statement of Reasons, page 13):
“ii) For the first 26 weeks from the 8th August, 2003, to the 7th February, 2004, the Applicant is entitled to recover the Award Rate of $759.27 totalling $19,741.02 from the Second Respondent.
iii) For the second period of 26 weeks from the 8th February, 2004, to the 7th August, 2004, the Applicant is entitled to recover 80% of the Award rate being $607.42 totalling $15,792.80 from the Second Respondent.”
With regard to the period from 8 August 2004 and Mr Sorial’s entitlement under section 40 of the 1987 Act, the Arbitrator’s findings are confusing and do not distinguish between Mr Sorial’s work as a casual teacher and his subsequent employment as a security officer. The Arbitrator concluded that there is a shortfall of $99.64 between his probable earnings and his actual earnings, but did not explain how he arrived at that figure. The Arbitrator found there was no evidence to rebut the presumption that his earnings at the present time are prima facie evidence of his earning capacity (JC Ludowici & Son Ltd v Cutri (1992) 26 NSWLR 580 (‘Cutri’)). The Arbitrator proceeded to apply the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’) in calculating Mr Sorial’s section 40 entitlement. In respect of the period in dispute from 10 October 2005, to date and continuing, the Arbitrator found (Statement of Reasons, page 15):
“i) The Applicant’s probable earnings [had he continued to be employed by Bi-Lo] would have been $834.41.
ii)His actual earnings [as a security officer] were $730.77;
iii)The difference is $103.64
iv) I have no evidence before me which suggests that I ought apply my discretion pursuant to Section 40 of the Act;
v) The applicant’s weekly entitlement is $103.64 per week from the 10th October, 2005, to date and ongoing in accordance with the Applicant’s statutory entitlements.”
ISSUES IN DISPUTE
Bi-Lo submits that (1) the Arbitrator’s award of continuing weekly compensation is mathematically incorrect, (2) the Arbitrator failed to provide reasons as to why Mr Sorial’s partial incapacity for work results from the lumbar injury and not from the injury to the left arm, (3) the Arbitrator has not provided reasons as to why the award of weekly compensation should not be apportioned between the insurers and, more specifically, as to why the award against Bi-Lo should not be apportioned between Allianz (as insurer for Bi-Lo until 16 February 2002) and Coles Myer (self-insurer from 17 February 2002), and (4) the award of weekly compensation made by the Arbitrator was made on the basis that Mr Sorial had no “ability to earn” for the entire period of partial incapacity, despite the fact that he was looking for suitable alternative duties and was subsequently able to find such work. Bi-Lo submits Mr Sorial had an ability to earn at all material times and the Arbitrator erred by failing to assess this. The parties’ submissions on these issues are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act states:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties that the appeal can 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.
None of the parties sought to adduce new evidence.
LEAVE
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 appeal was originally made on 25 May 2006, within 28 days of the Arbitrator’s decision, as required by section 352(4). I note the Registrar rejected the appeal for failure to attach submissions on threshold issues, specifically as to the amount of compensation at issue and the percentage of the amount awarded which is the subject of the appeal. Bi-Lo re-lodged the appeal on 31 May 2006, including submissions on these threshold issues. My view is that despite the rejection of the original application, the appeal was in fact “made” within 28 days as required by section 352(4). As Deputy President Byron said in Rowe v NSW Department of Education and Training [2006] NSWWCCPD 27, at paragraph 46:
“Section 352(4) provides only for the making of an appeal, and is silent as to the date of registration of the appeal in the Commission. Registration is an internal Commission procedure, following the making of an appeal.”
With regard to section 352(2), I am satisfied that the weekly compensation at issue exceeds $5,000 and is more than 20% of the amount awarded in the decision appealed against. I therefore grant leave to appeal.
SUBMISSIONS, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Bi-Lo must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
The Award of Continuing Weekly Compensation
Bi-Lo’s first submission, with which Franklins agrees, is that the Arbitrator’s award of continuing weekly compensation is mathematically incorrect. Mr Sorial’s solicitors submit there is no error or miscalculation. None of the parties go beyond making an assertion to actually undertake the required calculation.
It is true that the Arbitrator’s continuing award of $103.64 per week is at odds with his finding at paragraph G (ii) of his Statement of Reasons (page 13) that “currently there is a shortfall of $99.64 per week between the Applicant’s probable earnings and his actual earnings”. As I have noted at paragraph 15 above, it is not clear how he arrived at that figure. In my view, the award of $103.64 is correct, based on a deduction of actual earnings of $730.77 from probable earnings of $834.41. I therefore reject this first ground of appeal.
The Cause of the Partial Incapacity for Work
Bi-Lo’s second ground of appeal is that the Arbitrator failed to provide reasons as to why Mr Sorial’s partial incapacity for work results from the lumbar injury and not from the injury to the left arm. Franklins states that the evidence before the Arbitrator was that Mr Sorial lost one day’s work following the accident on 10 April 2000 – namely 11 April 2000 – but otherwise continued to perform his normal duties. Moreover, after 10 April 2000, Mr Sorial did not consult a doctor for any complaint for over two years until May 2002 (transcript page 21, line 40). Mr Sorial’s solicitors state it was not contended at the arbitration hearing that Mr Sorial’s incapacity was as a result of anything other than the back injury.
In my view, the Arbitrator’s reasons are difficult to understand. However, the relevant parts of the transcript appear to confirm what seems to be implicit in the Arbitrator’s Statement of Reasons - that it was not contended before the Arbitrator that Mr Sorial’s incapacity was caused by the injury to his left arm. Indeed, as Franklins submit, such a proposition is not supported by the evidence, which indicates that it was the incident on 13 December 2002 which caused the most significant incapacitating injury. I therefore conclude that although the Arbitrator’s Statement of Reasons are less than adequate on this issue, I am not satisfied that the inadequacy indicates that the Arbitrator failed to fairly and lawfully determine the application: YG & GG v Minister for Community Services [2002] NSWCA 247 (‘YG & GG’). I therefore reject this ground of appeal.
No Apportionment of Weekly Compensation
Bi-Lo’s third and fourth grounds of appeal is that the Arbitrator has not provided reasons as to why the award of weekly compensation should not be apportioned between the insurers, and as to why the award against Bi-Lo should not be apportioned between Allianz (as insurer for Bi-Lo until 16 February 2002) and Coles Myer (self-insurer from 17 February 2002).
Franklins points to the Arbitrator’s finding at paragraph E (iii) (Statement of Reasons, page 12) that as a result of Mr Sorial’s change in duties from being a baker to working in the grocery section (in May 2002), Mr Sorial “appears to have had considerable manual duties”, and it was these manual duties which “ultimately gave rise to the injury which resulted from the lifting of boxes on the 13th December 2002”. Moreover, there is no evidence that Mr Sorial was unable to perform these heavier manual duties as a result of the 2% loss of efficient use of his left arm below the elbow.
Mr Sorial’s solicitors submit that it was not contended at the hearing that Mr Sorial’s incapacity was caused by anything other than his back injury:
“On the evidence the back injury which occurred in December 2002 was the injury which caused incapacity as the worker had been on full duties after his arm injury for some time.”
They contend apportionment has never previously been sought by Bi-Lo.
I can find no reference in the transcript to the issue of apportionment being raised by Bi-Lo’s counsel before the Arbitrator. A review of the voluminous medical evidence indicates it was the incident on 13 December 2002 that is the most significant cause of Mr Sorial’s incapacity for work, so that there was good reason for not raising the question of apportionment under section 22 of the 1987 Act. For example, I note WorkCover medical certificates issued by Mr Sorial’s general practitioners refer to neck and back pain as being the condition restricting his capacity for work (Dr Magdy Girgis, dated 13 January 2005 and 8 November 2005; Dr M Lodin, dated 4 January 2005). Moreover, much of the specialist opinion recommends a restriction on Mr Sorial’s lifting and bending (for example, Dr TJ Connelly, Neurosurgeon, dated 16 November 2004; Dr T Mastroianni, Occupational Physician, dated 12 November 2004; Dr Medhat Guirgis, Orthopaedic Surgeon, dated 15 September 2003). Since the injury on 13 December 2002 occurred after the period when Allianz was at risk (until 16 February 2002), the risk having passed to Bi-Lo (or more specifically to Coles Myer as the self-insurer) on 17 February 2002, there is also no reason for apportionment between insurers since the incapacitating injury of 13 December 2002 occurred during the period when Coles Myer was solely at risk.
I therefore assume the Arbitrator did not address this issue because it does not appear to have been raised before him and did not appear relevant, there being no evidence to support apportionment as a live issue. For this reason, I reject the third and fourth grounds of appeal.
Ability to Earn
Bi-Lo’s fifth ground of appeal is that the award of weekly compensation made by the Arbitrator was made on the basis that Mr Sorial had no “ability to earn” for the entire period of partial incapacity, despite the fact that he was looking for suitable alternative duties and was subsequently able to find such work. Bi-Lo submits Mr Sorial had an ability to earn at all material times and the Arbitrator erred by failing to assess this. Franklins respond that this is a matter for comment by Mr Sorial’s solicitors.
Mr Sorial’s solicitors submit the Arbitrator correctly applied the steps prescribed in Mitchell. In particular, the section 40(2)(b) findings (Mr Sorial’s solicitors cited section 40(1)(b) but I assume this was an error) were “those as expressed in the Applicant’s Wages Schedule which was not traversed”. There was no evidence that Mr Sorial could earn more than he could in some suitable employment, and the Arbitrator correctly applied the ratio of Cutri.
In my view, the Arbitrator correctly addressed the steps prescribed in Mitchell. With regard to step 2 and his finding in relation to section 40(2)(b), the Arbitrator correctly relied on evidence of Mr Sorial’s current earnings as a security officer, rather than his (much more limited) earnings as casual teacher in the period from 19 August 2004, there being no evidence (Cutri) that Mr Sorial would be able to earn more as a teacher since he was only ever able to obtain occasional casual work of this kind. I am therefore not satisfied that Bi-Lo has made out their fifth ground of appeal.
Bi-Lo having failed to establish any of its grounds of appeal, the appeal must be dismissed. I have commented that the Arbitrator’s are at times less than adequate. However, I reiterate that I am not satisfied that the inadequacy indicates that the Arbitrator failed to fairly and properly determine the application (YG & GG), and even if I were to make such a finding and substitute my decision, that decision would be to the same effect as the Arbitrator’s. The Arbitrator’s decision must be confirmed.
DECISION
The Arbitrator’s decision of 27 April 2006 is confirmed.
COSTS
The Appellant, Bi-Lo Pty Ltd, is to pay Mr Sorial’s costs and those of the Second Respondent, Franklins Ltd, in this appeal.
Robin Handley
Acting Deputy President
11 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
7
0