Bombardieri v KU Children's Services Pty Ltd
[2006] NSWWCCPD 270
•11 October 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bombardieri v KU Children’s Services Pty Ltd [2006] NSWWCCPD 270
APPELLANT: Donna-Marie Fiona Bombardieri
RESPONDENT: KU Children’s Services Pty Limited
INSURER:Employers Mutual NSW Ltd
FILE NUMBER: WCC6544-06
DATE OF ARBITRATOR’S DECISION: 4 August 2006
DATE OF APPEAL DECISION: 11 October 2006
SUBJECT MATTER OF DECISION: Partial incapacity; section 40 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: P K Simpson & Co
Respondent: Edwards Michael Moroney
ORDERS MADE ON APPEAL: 1. Paragraph one of the Arbitrator’s decision of 4 August 2006 is revoked and the following order made:
“1.Award for the Applicant under section 40 of the Workers Compensation Act 1987 in the sum of $109.00 per week from 20 January 2005 until 5 March 2006 and in the sum of $119.00 per week from 6 March 2006 to date and continuing.”
2. The orders made by the Arbitrator in paragraphs two, three and four of his decision of 4 August 2006 are confirmed.
3. The matter is remitted to the Registrar for referral to an Approved Medical Specialist in accordance with order three made by the Arbitrator.
4. The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 14 August 2006 Donna-Marie Fiona Bombardieri (‘the Appellant Worker/Ms Bombardieri’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 August 2006.
The Respondent to the Appeal is KU Children’s Services Pty Limited (‘the Respondent Employer/KU’).
Ms Bombardieri was born on 7 February 1967 and is currently 39 years of age. On 27 April 2004 she started work for KU as a childcare worker working 22 hours per week. On 2 June 2004 she sustained an injury at work which has left her with continuing back and left leg pain. She was able to remain at work with KU until 15 December 2004 when she resigned and returned to live in Tasmania where she has family.
An Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 28 April 2006 seeking weekly compensation from 15 December 2004 (later amended to be 20 January 2005) to date and continuing plus lump sum compensation in respect of a 13% whole person impairment and $20,000.00 for pain and suffering.
The Application was listed for conciliation and arbitration before a Commission Arbitrator in Sydney on 20 July 2006 when it could not be resolved and proceeded to Arbitration. In a reserved decision the Arbitrator made an award for the Respondent Employer in respect of the claim for weekly compensation. The Appellant Worker seeks leave to appeal that part of the decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 4 August 2006, records the Arbitrator’s orders as follows:
“1.Award for the Respondent as regards Weekly Benefits.
2.The Applicant is entitled to recover her reasonable medical expenses pursuant to Section 60 of the Act upon production of accounts and/or receipts.
3.The Applicant’s claim for Permanent Impairment should be referred to an AMS in accordance with the referral completed by me in this regard.
4.The Respondent to pay the Applicant’s costs as agreed or assessed.”
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
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. No award of weekly compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parities 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 failing to make an award in favour of the Appellant Worker under either section 38 or, in the alternative, under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
SUBMISSIONS
The Appellant Worker submits that the decision should be reviewed and the “matter should not be dealt with as an error appeal” (Appellant Worker’s submissions, paragraph three). This submission misunderstands the nature of a ‘review’ under section 352 of the 1998 Act. What is involved in a ‘review’ has been considered by the Commission in many cases. In Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 it was noted 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.”
I intend to adopt the above approach in the present appeal.
The Appellant Worker further submits that the Arbitrator was in error in that he:
(a)failed to appreciate the evidence;
(b)failed to appreciate the effect of the salient facts established by the evidence;
(c)took an over technical approach to the evidence;
(d)was unduly concerned about the fine details that were not in evidence;
(e)unfairly failed to ask the Appellant Worker questions to clarify fine details that were not in evidence that were troubling him;
(f)was concerned with the technicalities or form of the Appellant Worker’s evidence rather than the content and substance of that evidence;
(g)adopted an approach to the matter that was unfair and unjust and not in keeping with the obligations the Commission has under section 354 of the 1998 Act;
(h)failed to consider the Appellant Worker’s incapacity for work in the proper context, namely, in a practical sense having regard to the realities of the labour market open to her (Arnott’s Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 and Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 (‘Wilson’)), and
(i)considered the Appellant Worker’s incapacity for work based on his theoretical assumptions and in disregard of her evidence that she had been rejected for jobs because of her injury.
The Respondent Employer submits:
(a)when an appeal attacks the weight to be given to the evidence before the Arbitrator, the decision should only be interfered with when it is “manifestly obvious” that the Arbitrator’s discretion to accept or reject evidence, or to attach weight to one aspect of the evidence in preference to another, has so miscarried that “it has not been exercised fairly or lawfully” (see Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73);
(b)no error of the relevant type can be shown in the Arbitrator’s approach to the present matter or the findings that he made;
(c)in respect of the Appellant Worker’s claim for compensation under section 38 of the 1987 Act, she has no entitlement under that section because she voluntarily resigned from her employment with the Respondent Employer and moved to Tasmania and she was therefore not “ready, willing and able” to accept an offer of suitable duties as required by section 38A(2)(a) of the 1987 Act;
(d)the Arbitrator adopted the correct approach to the section 40 assessment and correctly applied the steps set out in Mitchell v Central West Health Services (1997) 14 NSWCCR 527 (‘Mitchell’);
(e)the Appellant Worker only worked for KU for 22 hours per week and her probable weekly earnings but for injury were agreed at $308.82 from 20 January 2005 to 5 March 2006 and $319.00 from 6 March 2005;
(f)the Appellant Worker’s own medical evidence placed no limitation on the number of hours or days per week she could work;
(g)the Appellant Worker gave evidence that she had looked for work, the inference being that there was work she felt she could do;
(h)the Arbitrator was aware that he had to consider the labour market reasonably accessible to the Appellant Worker, namely, Hobart, a capital city not an isolated rural community;
(i)the Arbitrator had regard to the matters set out in section 43A of the 1987 Act and to the fact that the Appellant Worker has had considerable work experience in areas that might be considered light or sedentary, such as managerial, clerical, administrative and receptionist work. There was no evidence that this kind of work was not available in Hobart;
(j)the evidence before the Arbitrator supported the conclusions he reached;
(k)the Arbitrator did not deny the Appellant Worker procedural fairness;
(l)Ms Bombardieri made no application to put further evidence before the Arbitrator, and
(m)the Arbitrator’s decision reveals no error and should be confirmed.
DISCUSSION AND FINDINGS
Section 38
The Appellant Worker argues that she resigned because she was unable to perform her duties due to her injury and her symptoms were being aggravated by the duties she performed after 2 June 2004. Whilst that may well be the case, a worker is not entitled to an award under section 38 unless he or she is seeking suitable employment. A worker is not to be regarded as seeking suitable employment unless he or she is “ready, willing and able to accept an offer of suitable employment from the employer” (section 38A(2)(a)). The Appellant Worker in the present case could not satisfy that requirement as she had returned to live in Hobart prior to 20 January 2005, the date on which the claim for weekly compensation commences.
In addition, Ms Bombardieri obtained two conflicting medical certificates in December 2004. The first, dated 13 December 2004, certified her to be totally unfit for work until 11 March 2005, and the second, dated 15 December 2004, certified her to be fit for suitable duties until 21 January 2005. No explanation was given for the change in the certificates. In these circumstances there is further doubt as to whether the Appellant Worker was genuinely seeking suitable employment from the Respondent Employer when she produced the certificate of 15 December 2004.
The Arbitrator was not satisfied that Ms Bombardieri was ‘able’ to take up suitable employment with KU on 20 January 2005 and found that she had not satisfied the provisions of section 38A. I agree with the Arbitrator’s conclusion and his Statement of Reasons for Decision (‘Reasons’) disclose no error of fact, law or discretion on this issue.
Section 40
In considering this issue it is appropriate to consider the evidence in detail.
Medical Evidence
In a report dated 15 December 2005 Dr Horsley, occupational physician, noted that Ms Bombardieri’s job with the Respondent Employer was “primarily physical” (page two). The doctor took a history of the June 2004 injury and its consequences. Ms Bombardieri complained of back pain and intermittent discomfort radiating down the left leg as far as the foot. She also experienced intermittent numbness in the left leg. At times she experienced a sensation of giving way and weakness in the left leg. It was noted that Ms Bombardieri’s physical tolerances were poor: sitting 15-20 minutes, static standing about 10-15 minutes, walking 10-15 minutes and driving 15-20 minutes. As a result of inactivity Ms Bombardieri put on about eight kilos which exacerbated her reduced self esteem and self confidence. Her sleep was poor and that affected her concentration and attention span and general level of irritability which further impacted on her confidence. She described her back and leg pain as “wearing her down”. Her levels of anxiety had increased.
On examination Dr Horsley found forward flexion to be 80° with extension less than 10°. Left and right lateral flexion, left and right lateral rotation were limited in the last 10-15°. Peripheral nervous system examination revealed a reduction in light touch sensation down the lateral aspect of the left calf into the dorsum of the foot. Straight leg raising on the right was 80° with a negative sciatic stretch test and 70° on the left with an equivocal sciatic stretch test.
A CT scan dated 22 October 2004 showed a mild diffuse posterior bulge at L4/5 with a mild symmetrical impression on the thecal sac. In addition, there was mild narrowing of the spinal canal at L4/5 and early L5/S1 facet arthropathy.
Dr Horsley diagnosed Ms Bombardieri to be suffering from mechanical back pain with evidence of radicular pain down the left leg. She also felt there was clinical evidence of depression that required further evaluation and management.
In her opinion Ms Bombardieri is unfit for work in the area of childcare as the physical demands of the job are beyond her capacity. Dr Horsley identified the following activities that Ms Bombardieri should avoid:
· overreaching;
· pushing and pulling;
· lifting items greater than 10-12 kg on a permanent basis;
· lifting items up to 8-10 kg on a repetitive basis;
· repetitive bending and lifting;
· sitting for periods greater than 15-20 minutes without changing posture;
· static standing greater then 15-20 minutes without changing posture;
· repetitive stair climbing, and
· prolonged driving for greater than 20-30 minutes without taking a rest break.
Dr Horsley thought that Ms Bombardieri “is clearly in need of further assistance” (page seven). Specific reference is made to a need to upgrade her physical program to improve her physical tolerances and to counselling from a cognitive behavioural perspective.
Dr Giblin, orthopaedic surgeon, saw Ms Bombardieri at the request of her solicitors on 15 December 2005 and prepared a report on 19 December 2005. He took a history of Ms Bombardieri having constant low back ache with pins and needles radiating down the left leg as far as the lateral border of the foot with a numbing sensation. He noted her complaints that she was unable to walk more than half a kilometre or sit for more than 20 minutes. She also complained of difficulty bending over, vacuuming, lifting heavy baskets of wet laundry or groceries, making beds, or putting out the rubbish bin. She had not returned to her pre injury sporting activities.
Dr Giblin examined the CT scan of 22 October 2004 and confirmed that it showed disc bulging at L4/5 and L5/S1. His diagnosis was soft tissue injury to the low back consistent with the findings noted on the CT scan. He felt that she was permanently unfit for unrestricted pre injury duties and was unfit for heavy bending, lifting and twisting.
For the Respondent Employer Ms Bombardieri has been examined by Dr Machart, orthopaedic surgeon, on two occasions, the first on 6 December 2004 (report 7 December 2004) and again on 23 March 2006 (report 28 March 2006). He noted her complaints of back pain and pins and needles in the left leg in the L5 distribution. He diagnosed an “L4/5 disc injury-bulge” (report 7 December 2004, page three). He noted that attempts to upgrade Ms Bombardieri’s duties had failed and he recommended light duties (“essentially desk work”) with minimal or no physical activity for six months when her physical capacity to upgrade could be reassessed.
In his 2006 report Dr Machart recorded her symptoms to be intermittent back pain of variable intensity with left leg pain over the outer aspect of the left foot. There was a complaint of associated numbness with pins and needles in the same area of the left foot. His diagnosis had not changed from his first report. He felt that her symptoms were “in keeping with discogenic pain and left sided radiculopathy in the distribution of the L5 nerve root considered to be irritated by the L4-5 disc bulge” (report 28 March 2006, page three). He noted that since December 2004 Ms Bombardieri attempted a few days work and was assigned to an autistic child. She was unable to continue that work because the child kept jumping on her causing physical demands.
In his second report, Dr Machart made no comment about Ms Bombardieri’s fitness for work but assessed her to have a 7% whole person impairment as a result of her work injury and disabilities.
The Appellant Worker has also been examined by Dr Lee, psychiatrist, on behalf of the Respondent Employer. In his report of 7 June 2006 Dr Lee concluded that Ms Bombardieri was not clinically depressed but did seem to have histrionic traits.
Appellant Worker’s Evidence
The Appellant Worker’s evidence is set out in her statement of 12 April 2006 which sets out the details of her work injury and the difficulties she experienced with her duties from June till December 2004. She also referred to part time work she obtained with Taroona Primary School (‘Taroona’) near her home in Hobart where she was employed as a childcare worker for a few hours a week between 24 August and 10 November 2005. I assume this is the job that Dr Machart referred to in paragraph [31] above. Her total gross earnings in this work were $845.00.
She stated that she has looked for more work and has applied for several jobs “but keeps getting knocked back because I have a back injury” (Appellant Worker’s statement 12 April 2006, paragraph 11). She also stated that her symptoms limit the length of time she can work without a break and limit the type of work she can perform (Appellant Worker’s statement 12 April 2006, paragraph 12). At paragraph 18 of her statement she stated that her injury “has reduced my capacity to fully participate in normal employment and social, domestic and recreational activities”. The injury has also affected her psychological outlook and mood.
Ms Bombardieri’s educational and work background is set out at page four of a report from Private Investigation Legal Services Pty Ltd dated 25 October 2005 and is reproduced in the Arbitrator’s Reasons at paragraph 32 as follows:
“The claimant left school in 1982 in Year 10. She was self-employed as the manager of a fashion boutique for four years in Sydney. In 1986, she moved to Tasmania and obtained a job at the Wrest Point Casino at the same time she studied hospitality.
Between 1989 and 1996, the claimant was the Assistant Manager of a jewellery shop and in 1997, the claimant was the Assistant to the manager of the Resource Centre at the Tasmanian University, Geography and Environmental Studies Branch.
In 1998, the claimant gave birth to her daughter and was unemployed till 2002 when she returned to work at the jewellery shop. She then undertook a course as a Teacher’s Aid and moved to Sydney in 2004 to take up a position with the insured”.
I assume that the jewellery shop referred to above was her father’s shop (see report Dr Lee 7 June 2006, page four). It was submitted to the Arbitrator that the ‘Resource Centre’ was a library (see Reasons, page seven).
Arbitrator’s Reasons and Relevant Authorities
In the text Workers Compensation in New South Wales, second edition, by C P Mills (‘Mills’), the following passage provides what I believe to be a fair summary of the law on incapacity and identifies the proper question to be asked. At page 285 the author said:
“The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity is less than it was before the injury (Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 per Starke J), and it is not limited to the effect on his capacity for his former work (per Dixon J). In Ball v Hunt [1912] AC 496, Lord Loreburn had said that there is incapacity when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity when such a defect makes his labour saleable for less than it would otherwise fetch: see Commissioner for Railways v Agalianos (1955) 92 CLR 390 per Dixon CJ.”
The Arbitrator referred to the Appellant Worker’s evidence that she had unsuccessfully looked for work and added that she “does not attempt to overcome the onus which is on her by stating whether they were in childcare or in one of the other areas of her competence” (Reasons, paragraph 38). Ms Bombardieri carries an onus to prove she has an entitlement to compensation. She discharges that onus by establishing that her work injury has left her in such a position that in the open labour market her earning capacity is less than it was before the injury. The question is not limited to the effect on her capacity for her former work.
The Arbitrator felt that the Appellant Worker did not “meet the onus” (Reasons, paragraph 38) when she gave evidence that she had been “getting knocked back because I have a back injury” because she did not indicate whether the prospective employer was offering ‘light duties’ or ‘desk work’. The kind of work Ms Bombardieri applied for is not determinative of the question of whether she has an economic incapacity. The relevance of her evidence is that the prospective employers were not offering her any employment because of her back injury. Merely applying for a particular job does not indicate that the wage for that job represents the worker’s earning capacity. Her evidence established that, as a result of her work injury, her labour is less saleable in the labour market available to her. This evidence was unchallenged by the Respondent Employer. As a result she has an economic incapacity and, subject to other evidence in the case, is entitled to weekly compensation. The Arbitrator was in error in holding that the Appellant Worker had an additional onus to overcome.
The Arbitrator refers to the fact that the Appellant Worker’s job with KU was only for 22 hours per week and adds that the reports from Drs Horsley, Giblin and Machart “are strongly suggestive of a capacity to work at least twenty-two hours a week in a number of areas which the Applicant has experience, not including childcare” (Reasons, paragraph 41). Assuming that this conclusion is correct, the question remains: has the injury left the worker in such a position that in the open labour market her earning capacity is less than it was before the injury? This question is not answered by a theoretical analysis of what the worker might be able to do in a perfect world, but by looking at the real world.
This point was well illustrated by the Court of Appeal in Wilson, where Justice Mahony said at 213:
“Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, i.e. what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds 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 wholly 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.” (emphasis added)
The Arbitrator noted that Ms Bombardieri had moved from Sydney to Tasmania before returning to Sydney and back to Tasmania again and has demonstrated a capacity to find employment on each occasion (Reasons, paragraph 42). That is true but it fails to properly acknowledge that she is now seeking work with a back injury that places significant restrictions on her capacity to work. The Arbitrator then states that Ms Bombardieri has failed to explain why she sought work at Taroona Primary School and has not given evidence of attempts to seek work outside of childcare since returning to Tasmania. The work at Taroona was for significantly shorter hours and, in any event, was work with which she could not cope. The evidence she gave about seeking employment was not challenged by the Respondent Employer and, in these circumstances, it provided sound evidence, along with the other evidence in the case, that the Appellant Worker’s ability to sell her labour in the market available to her has been diminished. If the Arbitrator intended to draw an adverse inference against the Appellant Worker in circumstances where she had not been cross examined, he had an obligation to raise those issues with her or her counsel at the Arbitration, or in a subsequent teleconference. The failure to do so does raise an issue of procedural fairness, but I prefer to decide this case on the Arbitrator’s failure to refer to or apply the principles set out in Wilson and Mills, quoted above.
The case of Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571 is also instructive. In that case the worker suffered a repetitive strain injury to her left dominant arm whilst working for Alcan as a switchboard operator/telephonist. After being retrenched by Alcan and undergoing treatment the worker obtained employment as a telephonist with George Patterson & Co earning more than she earned with Alcan. The later employment ended because of a reason unrelated to her injury. In her claim for weekly compensation Alcan argued that the worker had no entitlement to compensation because she had a proven capacity to earn more than her pre injury earnings and, therefore, there was no economic loss as a result of her injury. The medical evidence established and the judge accepted that the worker had a continuing problem with her left arm as a result of her injury with Alcan and that that problem prevented her from doing rapid or repetitive work with her left arm. Prima facie, that finding indicated an incapacity on the open labour market.
In quantifying that incapacity the judge held, at 577F:
“…the appropriate way of looking at the case is that the applicant’s ability to get jobs such as the one she got with George Patterson & Co, is reduced. For example, she could not work where no headset was provided to her, where she would have to hold the telephone appliance in her dominant left hand. Nor would she be able to work with computerised switchboards which would require keying duties with her dominant left hand and which she has said she could not do and which I accept she could not do.
Therefore, the number of jobs which she could hold down has been reduced. That reduction means that if the applicant finds herself unemployed, it is harder and would take longer to obtain suitable employment - that is, employment suitable to a lady with her disability in her dominant left arm.”
The judge ultimately made an award in favour of the worker on a continuing basis in the sum of $83.00 per week.
A similar factual situation arose in Akawa Australia Pty Ltd v Cassells (2003) 25 NSWCCR 385. In that case the worker suffered an injury to his left foot which left him with a permanent restriction. He returned to work with Akawa in a light duties capacity but ceased when it relocated. He subsequently obtained employment at a wage higher than his pre injury earnings. He ceased that work partly because of his foot and partly because of poor relations with the staff. In his claim for weekly compensation the employer argued that the worker had a proven capacity to earn more than he did in his pre injury job and, therefore, he had no entitlement to compensation. That argument was rejected by the trial judge. On appeal the Court of Appeal held that once the trial judge found a partial incapacity he was entitled to quantify it and there was no error in the approach adopted. It was also noted that the Compensation Court was a specialised tribunal entitled to make assessments about earnings paid to injured workers (Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 and J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 at 632). A similar comment can be made about the Commission. In addition, the Commission has the power to inform itself of matters (section 354(2)), provided the evidence is probative and relevant.
In the present case the Arbitrator felt, wrongly in my view, that the Appellant Worker’s case was deficient because she did not put “the relevant evidence as to job seeking (and the market conditions if relevant) before” him. The evidence before the Arbitrator clearly established that the Appellant Worker was partially incapacitated for work and that that partial incapacity was producing an economic loss in the labour market available to her. In these circumstances the Arbitrator was in error in not making an award in favour of the Appellant Worker under section 40 of the 1987 Act.
CONCLUSION
For the reasons set out above, it is my opinion it is ‘manifestly obvious’ that the Arbitrator’s discretion has miscarried because he has failed to apply the correct principles in determining the Appellant Worker’s entitlement under section 40 and he has failed to properly consider the effect of the Appellant Worker’s uncontested evidence. In these circumstances his discretion has not been exercised fairly or lawfully and the decision not to award the Appellant Worker weekly compensation must be set aside and her entitlement reassessed.
REASSESSMENT
No credit issues have been raised in the case and I am therefore in as good a position as the Arbitrator to assess the Appellant Worker’s entitlement and that is the course I propose to adopt. In doing so I intend to adopt the five steps set out in Mitchell.
I have already reviewed the evidence in detail. In my opinion the evidence establishes that the Ms Bombardieri’s earning capacity has been reduced as a result of her injury and its consequences. Her earnings if uninjured (step one) were agreed before the Arbitrator at $309.00 (rounding up to the nearest whole dollar) from 20 January 2005 to 5 March 2006 and $319.00 from 6 March 2006 to date and continuing.
In assessing Ms Bombardieri’s ability to earn (step two) I have assumed, in the absence of evidence to the contrary, that the job market available to Ms Bombardieri in Hobart would be no less favourable to her than the job market in Sydney. I accept the medical evidence from Dr Horsley and Dr Giblin as to the nature and extent of Ms Bombardieri’s incapacity. In particular, I accept the evidence of Dr Horsley set out at paragraph [26] above which, among other things, restricts Ms Bombardieri’s capacity to sit and stand. Those restrictions will undoubtedly impact on her ability to obtain and retain employment, even if that employment is less physically demanding than the duties of a childcare worker. I accept Ms Bombardieri’s evidence that, because of her back injury, she has been unsuccessful in obtaining employment.
I note that Ms Bombardieri’s education has been limited to year 10 at high school, an unidentified hospitality course and a teacher’s aid certificate. Her transferable skills are limited. In my opinion her alternative employment prospects are limited to receptionist or clerical type duties. However, her ability to obtain work of that kind is greatly impaired as a result of her injury and disabilities. In addition, her ability to perform that work on an unrestricted basis is also doubtful given the restrictions noted by Dr Horsley.
Having regard to the whole of the evidence I find the Appellant Worker’s ability to earn in some suitable employment in the labour market accessible to her to be $200.00 per week.
The difference between step one and two is $109.00 per week from 20 January 2005 to 5 March 2006 and $119.00 per week for 6 March 2006 to date and continuing (step three).
There are no grounds that would warrant the figure arrived at in step three to be reduced in the exercise of my discretion under section 40(1) (step four). In my opinion the figures arrived at in step three are ‘proper’ in the circumstances and represent a fair assessment of the Appellant Worker’s reduced earning capacity as a result of her work injury.
It follows that there will be an award for the Appellant Worker in the amounts set out in paragraph [55] above.
DECISION
Paragraph one of the Arbitrator’s decision of 4 August 2006 is revoked and the following order made:
“1.Award for the Applicant under section 40 of the Workers Compensation Act 1987 in the sum of $109.00 per week from 20 January 2005 until 5 March 2006 and in the sum of $119.00 per week from 6 March 2006 to date and continuing.”
The orders made by the Arbitrator in paragraphs two, three and four of his decision of 4 August 2006 are confirmed.
The matter is remitted to the Registrar for referral to an Approved Medical Specialist in accordance with order three made by the Arbitrator.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
11 October 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
0
5
0