Briggs Veneers Pty Limited v Ayoub
[2009] NSWWCCPD 138
•27 October 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Briggs Veneers Pty Limited v Ayoub [2009] NSWWCCPD 138 | |||||
| APPELLANT: | Briggs Veneers Pty Limited | |||||
| RESPONDENT: | Basim Bani Ayoub | |||||
| INSURER: | QBE Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-2259/09 | |||||
| ARBITRATOR: | Mr J McGruther | |||||
| DATE OF ARBITRATOR’S DECISION: | 6 July 2009 | |||||
| DATE OF APPEAL DECISION: | 27 October 2009 | |||||
| SUBJECT MATTER OF DECISION: | Sections 36, 37 and 40 of the Workers Compensation Act 1987; total incapacity; partial incapacity; ability to earn. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Curwoods Lawyers | ||||
| Respondent: | Kheir & Associates Solicitors | |||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 6 July 2009 is revoked and the following decision is made in its place: | |||||
| “(1) The assessment of the claim under section 66 of the Workers Compensation Act 1987 in respect of left upper extremity (left shoulder) impairment is remitted to the Registrar for referral to an Approved Medical Specialist. The section 67 pain and suffering lump sum claim is reserved. | ||||||
| (2) The respondent to pay the applicant’s medical, hospital or related treatment expenses (section 60 of the Workers Compensation Act 1987) in the sum of $288.00. | ||||||
| (3) (i) Award for the applicant at the rate of $511.76 per week from 6 February 2007 to 7 August 2007 pursuant to section 36 of the Workers Compensation Act 1987 and at the rate of $511.76 per week from 8 August 2007 to 1 August 2008 pursuant to section 37 of the Workers Compensation Act 1987. (ii) Award for the applicant at the rate of $361.76 per week from 2 August 2008 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987. | ||||||
| (4) The respondent is to pay the applicant’s costs as agreed or assessed with a discretionary costs uplift factor for complexity of ten per cent (10%). | ||||||
| (5) The AMS referral is that the Applicant's s66 lump sum claim is to be referred to an AMS under delegation of the Registrar on the following basis: | ||||||
| (a) Date of injury 6 February 2007 | ||||||
| (b) Whole person impairment – WPI basis | ||||||
| (c) There is no material to be excluded to the AMS referral from either the ARD or the Reply or Late Documents except for the Briggs Veneers Pty Ltd copy letter to the Applicant of ‘17 January 2006’ (Late Document, rejected) | ||||||
| 2. The appellant pay the worker’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
Basim Bani Ayoub (‘the worker’), who is presently 24 years of age, commenced employment as a process worker with Briggs Veneers Pty Ltd (‘the appellant’) on 1 February 2007. On 6 February 2007 in the course of that employment he was manoeuvring a loaded trolley. As he was lifting and pulling the trolley over a small step he felt extreme pain in his left shoulder. The worker reported the injury to his manager and arrangements were made to have him transported to a medical centre at Wetherill Park where he was attended by Dr Foo, general practitioner.
Following the consultation with Dr Foo the worker returned to his employment and performed his usual duties, however experienced considerable pain over a period of two or three days.
On 9 February 2007 the worker consulted Dr Frederick Hoe, orthopaedic surgeon. Following examination by that practitioner the worker’s condition was diagnosed as being a grade II–III subluxation of the left AC joint. Dr Hoe had taken a history on that occasion of a left shoulder injury sustained on 5 December 2006 when the worker fell from his pushbike. Dr Hoe records that the worker suffered pain for three or four weeks following that pushbike incident following which he attended work where, while pushing a trolley, his left AC joint subluxed. Dr Hoe recommended surgery and the worker made a claim for workers compensation benefits. In the last week of March 2007 the worker was informed that his claim had been declined by his employer’s insurer and he was given notice of termination of his employment by his employer.
The dispute concerning entitlement to compensation benefits was referred to the Workers Compensation Commission (‘the Commission’) by registration of an ‘Application to Resolve a Dispute’ (‘Application’) on 24 March 2009. That Application came before the Commission for conciliation/arbitration on 23 June 2009 and a Certificate of Determination issued on 6 July 2009. That determination made findings in favour of the worker concerning proof of a compensable injury and entitlement to compensation benefits.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 6 July 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1. That Mr Ayoub’s employment with the Respondent was a substantial contributing factor to that injury. There is an Award for the Applicant with reference to his lump sum claim under s66 of the 1987 Act.
2. That assessment of the lump sum s66 claim to left upper extremity (left shoulder) impairment is to be referred by the Registrar to an Approved Medical Specialist for such assessment, pending which the s67 pain and suffering lump sum claim is reserved.
3. That the Applicant is awarded s60 medical expense compensation at $288 as pleaded to be paid by the Respondent.
4. That the Applicant has made out his claim for weekly benefits determined at the level of total incapacity and awarded at $511.76 weekly from 6 February 2007 to date and continuing to be paid by the Respondent.
5. The Respondent is to pay the Applicant’s costs as agreed or assessed. I declare the proceedings as complex with a discretionary costs uplift factor at the level of ten per cent (10%) mutually applied.
6. The AMS referral is that the Applicant's s66 lump sum claim is to be referred to an AMS under delegation of the Registrar on the following basis:
(a)Date of injury 6 February 2007
(b)Whole person impairment – WPI basis
(c)There is no material to be excluded to the AMS referral from either the ARD or the Reply or Late Documents except for the Briggs Veneers Pty Ltd copy letter to the Applicant of ‘17 January 2006’ (Late Document, rejected)
(d)Body part – left upper extremity (left shoulder).
7. The Applicant's s67 pain and suffering claim is reserved pending the AMS outcome as above.”
ISSUES IN DISPUTE
The issue in dispute in this appeal is whether the Arbitrator erred in his determination that the worker was totally incapacitated to the date of his determination. The relief sought by the appellant is the substitution of that finding with one of partial incapacity and an assessment of the worker’s entitlement to weekly benefits in accordance with those principles stated in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’). The worker on this appeal seeks to maintain the finding and orders made by the Arbitrator with respect to weekly benefits compensation.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act.
The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
EVIDENCE
The documentary evidence adduced before the Arbitrator is described at [14] of the Arbitrator’s Statement of Reasons (‘Reasons’) which accompanied the Certificate of Determination. An application was made on behalf of the appellant before the Arbitrator seeking leave to cross-examine the worker. That application was refused and no oral evidence was adduced at the hearing.
A large proportion of the evidence addressed the issue of “injury” as raised by the appellant in its defence of the worker’s claim. That evidence, briefly stated, concerned the relevance of the worker’s pushbike accident to the state of the worker’s shoulder joint following the injury as alleged on 6 February 2007. A significant number of medical reports, hospital records and radiological investigation reports were adduced by each party. It was that evidentiary material that was addressed by the parties in argument concerning the cause of the worker’s undoubtedly abnormal shoulder joint, as well as the issue of the proper application of section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) to the relevant facts.
The appellant does not challenge the Arbitrator’s findings concerning the occurrence of injury and the proper application of section 9A of the 1987 Act. It is therefore unnecessary, for the purposes of this appeal, to attempt a summary of the evidence relevant to those issues.
It is proposed to deal separately with the evidence presented by each party relevant to the issue of incapacity.
Worker’s evidence on incapacity
There was a statement made by the worker dated 12 February 2009 in evidence before the Arbitrator. The worker states that on 9 February 2007 he was provided with a certificate by Dr Hoe certifying that he was unfit for work for a period of eight weeks. After presentation of that certificate at the workplace he ceased work. Apart from an attempt to perform cleaning work for one day at a childcare centre at some unknown time in 2007, the worker has not worked since. The worker’s evidence is that he returned to that cleaning work on a second date but could only manage two or three hours work by reason of his shoulder disability. It is to be noted that the worker, in his statement, said that the requirement that he wear a vacuum cleaner on his back caused pain not only to his left shoulder but to his back. He states that he could not use a mop to clean floors.
At [20] of that statement the worker describes his ongoing disabilities which include a limitation of weight bearing not exceeding 5 kilograms, pain in his left shoulder when lifting his arm above head height, inability to place his left arm behind his back, pain and stiffness in the left shoulder in cold weather, inability to push or pull heavy items with his left arm and difficulty lifting and manoeuvring “awkward weights”.
In evidence before the Arbitrator were seven WorkCover NSW medical certificates issued by Dr Foo. Each certified that the worker was fit for suitable duties and the period covered by those documents was between 6 February 2007 and 30 March 2007. Four of those certificates make reference to low back strain in that portion relating to diagnosis. This is confusing, given that there was no allegation of back injury, and is not explained.
A report of Dr Hoe dated 26 March 2007 addressed to Dr Foo states in part:
“Mr Ayoub has significant ongoing left shoulder pain due to AC joint dislocation and would benefit from excision of the outer end of clavicle and reconstruction of the coraco-clavicular ligaments.”
Included in the evidence were three reports from Dr David Manohar, the last of which is dated 1 October 2008. Dr Manohar records that the worker had undergone surgery to the left shoulder on 31 March 2008. Dr Manohar recorded a history that the worker has not experienced any dislocations of the shoulder since that surgery. Also recorded is the worker’s report of weakness and difficulty with range of motion in the left shoulder joint. Following examination it was Dr Manohar’s opinion that the worker had suffered a 16.3 per cent whole person impairment (WPI).
A report of Dr Peter E Giblin, orthopaedic surgeon, dated 30 January 2009 was in evidence before the Arbitrator. Dr Giblin expressed a diagnosis that the worker had sustained a significant soft tissue injury to his left shoulder “…leading on to the subsequent need for surgery, and as a result he has current permanent physical restrictions.” Dr Giblin also expressed the view that the worker is “…permanently unfit to use his left arm at or above shoulder height in a heavy repetitious or impact fashion or for long periods of repetitive pushing, pulling, or lifting.” These views were expressed by Dr Giblin following physical examination of the worker at which time it was noted by that practitioner:
“I observed through passive range of motion testing, comparing each shoulder, a degree of significant adhesive capsulitis on the left side.”
In a separate report bearing the same date, 30 January 2009, Dr Giblin expressed the view that the worker’s condition had stabilised and reached maximum medical improvement and that he had suffered an 11 per cent WPI.
I note in passing that a study of the left clavicle which appears to be a radiological report signed by a Dr Allan Aho, the surgeon who ultimately carried out what is described in the evidence as a left acromio-clavicular reconstruction on 31 March 2008, contains the following notation:
“The distal clavicular fracture has been secured by two surgical screws. The union has occurred solidly in good alignment. The distal end of the clavicle has been excised resulting in some widening of the acromio-clavicular joint. The shoulder joint appears normal.”
Appellant’s evidence concerning capacity for work
A report dated 14 March 2007 from Dr Roger Rowe, consultant orthopaedic surgeon, addressed to the appellant’s insurer was relied upon and served with the appellant’s notice issued pursuant to section 74 of the 1998 Act. That report addressed, primarily, the question of causation of the worker’s dislocated left acromio-clavicular joint. Whilst such subject is not relevant to the matters raised on this appeal it is to be noted that Dr Rowe, after expressing the view that there was no doubt that the worker suffered such a dislocation, stated:
“He is fit for fulltime light duty without heavy use of the left arm and without use of the arm above shoulder level. However, at the time of my assessment his response to examination was such that it was difficult to understand how he would work at all. Clearly, there would appear to be much variability in his level of activity in regard to his left shoulder.”
The appellant relied upon a report from Strategic Industry Solutions (SIS) dated 21 February 2007. That document is headed “Initial Assessment Report” and addressed matters relevant to the rehabilitation of the worker. It was noted in that report that the worker was then certified as being unfit for work. It was recorded that the anticipated date for return to work to perform selected duties was 26 February 2007. The evidence does not include any subsequent report from that organisation.
A report dated 9 February 2007 from Dr Hoe addressed to Dr Foo was also served by the appellant with its section 74 notice. The view was expressed by Dr Hoe that the worker “…should remain on light duties for the next couple of months.”
The appellant relied on two reports of Dr Richard Sekel, consultant in occupational medicine, dated 30 October 2007 and 19 November 2007. The first of those reports contains a notation that the worker has “…a recurrent dislocating left acromio-clavicular joint”. Both of those reports focus upon the question of causation of the worker’s left shoulder joint injury. It is to be noted that Dr Sekel did not examine the worker but rather conducted what is described as a “file review”, and the opinion expressed as to the question of causation was founded upon the documentary material which is referred to in those reports. Nowhere in the reports does Dr Sekel express any view as to capacity for work and it seems clear that Dr Sekel had been qualified by the appellant to provide expert opinion limited to the question of causation.
SUBMISSIONS, DISCUSSION AND FINDINGS
The arguments advanced on behalf of the appellant concerning the extent of incapacity suffered by the worker are to be found at page 15 of the transcript of proceedings recorded at the hearing (‘transcript’). Counsel made reference to the various medical certificates which were in evidence placing emphasis upon the opinion expressed therein that the worker was fit for suitable duties. It was put that the content of those certificates tends to contradict the suggestion made by counsel that “…the applicant will have you believe that there is absolutely nothing he can do on the open labour market.” Counsel emphasised that the worker had an adequate grasp of the English language and that his left shoulder is his non-dominant side. It was suggested that the Commission would take “judicial notice” of the job requirements of occupations such as shop assistant, console operator and lighter style clerical work. It was argued that on the open labour market the worker would be able to earn as much, or perhaps more than, his probable earnings but for injury.
The appellant’s counsel further argued that mention in various medical certificate of there being a disability resulting from a lower back injury implies that the work restriction certified takes such back disability into account. Acceptance of that proposition would lead the Commission, it was argued, to exercise discretion as granted by section 40 of the 1987 Act to reduce any entitlement to weekly benefits that may be determined following the arithmetic calculations necessary to determine such a right.
Counsel appearing on behalf of the worker argued that “…for all practical purposes, at least up until the surgery and some reasonable period of time for recovery afterwards – you’d have to allow at least six months, one would have thought – he’d have to be seen as totally incapacitated because it would just be medically inadvisable for him to be working with a shoulder that, as of March 2007 Dr Hoe wants to operate on.”(transcript p.31 4-11).
It appears that agreement was reached at the hearing that the worker’s current weekly wage rate in terms of the 1987 Act was $511.76 per week. There was no issue raised concerning the dependency of the worker’s wife and child.
Appellant’s submissions on this appeal
The Arbitrator’s finding of “total incapacity” is challenged on a number of bases. It is firstly argued that the Arbitrator’s findings that the worker had suffered a significant injury to the non-dominant left shoulder/arm, that he was a man with limited work experience who had made an unsuccessful attempt at return to work and that there were realistic “hurdles” presenting difficulties obtaining work, were against the weight of the evidence. It is argued that the Commission, as a specialist tribunal, has knowledge of a wide variety of suitable employment and it is suggested that taxi driving or light courier work, clerical tasks, sales, light hospitality work or light process work were all occupations suitable to the worker in his incapacitated state, none of which were considered by the Arbitrator when making his finding of total incapacity.
The second argument advanced by the appellant is that the Arbitrator has erred in that the finding of total incapacity was against the weight of the lay and medical evidence before the Commission. It was put in argument that there was no evidence that the worker could not perform the work referred to in earlier argument and summarised in [15] above. Emphasis was placed in submissions upon the certification of the worker as being fit for suitable duties by his treating general practitioner. It appears to be conceded in argument that the balance of the medical evidence establishes that the worker has work restrictions however it is argued that he is not “…totally precluded from any form of work on the open labour market.”
It is further argued on behalf of the appellant that the worker’s evidence supports the proposition that his physical condition improved following surgery which occurred on 31 March 2008. Reference is made to the worker’s attempted return to work as a cleaner in 2007 and it is argued that the worker “…could more than likely work about 3-4 hours per day since his operation in 2008.” It is suggested by the appellant that such a work regime would yield an income of $400.00 per week leaving an entitlement of $111.76 per week pursuant to section 40.
Worker’s submissions on appeal
The worker seeks to support the Arbitrator’s factual conclusions concerning the extent of incapacity. It is put in argument that such finding was open to the Arbitrator having regard to the state of the evidence and that his conclusion was the “preferable finding”. Reference is made to the pathological state of the worker’s left shoulder joint following the subject injury and in particular to the evidence of recurrent dislocation which was experienced by the worker prior to the surgical intervention which occurred in March 2008.
The worker further argues that the appellant did not adduce any evidence which addressed the question of incapacity after conduct of the surgery by Dr Aho. Reliance is placed upon the opinion of Dr Giblin which expressed concern regarding the significant physical restrictions the worker suffers since that surgery.
It is submitted by the worker that, having regard to his educational background and lack of training and work experience, the only labour market accessible to him is the performance of manual work. It is put that the worker is “virtually unemployable” having regard to the injury and its consequences.
Reference is made to the decision of the High Court in Wade v Allsopp (1976) 50 ALJR 643 in support of an argument that the worker, having a diminished work capacity, is unlikely to be capable of effectively competing for work against those without such disability on the open labour market.
Reference is made by the worker to the decision of the Commission in Shao Wen Zheng v Guo Yong Yang & Ors [2008] NSWWCCPD 144 in support of the argument that four relevant circumstances including the extent of disability, the worker’s background, standard of education and absence of transferable skills permits a finding of total incapacity even in circumstances where medical opinion is that there is a residual capacity for work following injury.
The worker proceeds to make reference to the appellant’s obligations concerning rehabilitation. The argument advanced, which seems to suggest the appropriateness of a retraining programme for the worker, does not assist a determination of the question raised on this appeal, namely whether any error was committed by the Arbitrator in determining that the worker was and remains totally incapacitated as a result of the subject injury.
The worker submits, in the event that the Arbitrator’s determination concerning total incapacity is disturbed on this appeal, that there should be a finding that the worker has only a very modest residual earning capacity and that there should be no amendment made concerning his entitlement.
The Arbitrator’s reasons
The Arbitrator, following a summary of the evidence, enumerated the following factors which he subsequently took into account in reaching his conclusion that the worker had been and remained totally incapacitated as a result of the injury (at [116] of Reasons):
“(a) Having only had physical labour-oriented work experience.
(b) Although still at a young age, is presently confronting a most significant left shoulder injury, requiring operative intervention, and also on balance of the reliable evidence before me, the reality of recurrence even through potentially innocuous events.
(c) Mr Ayoub has, but thus far without success, tried physical (cleaning) work in the interim.
(d) I largely accept his Statement descriptives (sic) of injuries and disabilities as they presently challenge him.
(e) That, such evidence as there is on this point, he is confronting the realistic hurdle of having difficulties simply being offered a ‘job’ in his circumstances and on this presentation.”
The Arbitrator proceeded to make a finding that the worker “suffers total incapacity” and his entitlement was quantified at the rate of $511.76 per week from 6 February 2007 to the date of determination and continuing. That weekly sum, on the evidence, represented the current weekly wage rate and has apparently been treated by the Arbitrator as representing the quantum of the worker’s ongoing entitlement.
Was the Arbitrator’s finding of total incapacity true and correct having regard to the totality of the evidence?
It is convenient to address the question of capacity during two distinct periods, the first of which is between the date of injury and the date of surgery being 31 March 2008. The second period, which is to be addressed, is that which follows the surgery to the present time.
It is correct, as submitted by the appellant, that with respect to the first period the medical evidence, such as it is, suggests that the worker was not other than partially incapacitated for work. I agree with the Arbitrator’s approach and with those arguments advanced on behalf of the worker that the expression of such expert medical view is not conclusive concerning the question of extent of incapacity. The nature of the task before the Arbitrator and before the Commission on this appeal in determining the extent of incapacity was addressed by Mahoney P (with whom Handley JA and Powell JA agreed) in Lawarra Nominees Pty ltd v Wilson (1996) 25 NSWCCR 206 at 213:
“…in assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity "for work" having regard to the realities of the labour market in which he is to be engaged.”
Having regard to the unchallenged evidence that the worker experienced recurrent and regular dislocation of the left shoulder joint following injury until surgical intervention together with all other circumstances, in particular the worker’s limited work experience and lack of training, in my view leads to the inevitable conclusion that during that first period the worker was totally incapacitated as a result of injury and I respectfully agree with the conclusion reached by the Arbitrator. The terms of the Arbitrator’s award during that period require amendment on this appeal having regard to the provisions of section 37 of the 1987 Act and this matter is addressed below.
A consideration of the extent of incapacity suffered by the worker during the second period, being since surgery to date, presents considerable difficulty for the Commission given the paucity of evidence which addresses the issue. The surgery conducted by Dr Aho is but fleetingly referred to in a handwritten operation report which is to be found amongst hospital records which were in evidence before the Arbitrator. The only medical evidence which included detail of a physical examination of the worker post surgery are the reports of Dr Giblin and Dr Manohar. Dr Giblin’s examination took place on 29 January 2009 at which time the worker demonstrated a degree of restriction of range of motion of the left shoulder joint. Of significance it is noted by Dr Giblin that he observed a degree of significant adhesive capsulitis in the left shoulder joint during passive range of motion. The restrictions Dr Giblin places upon the worker so far as physical activity is concerned are noted at [20] above.
Dr Manohar’s examination dated 1 October 2008 is noted as revealing restriction of abduction, flexion and rotation of the left shoulder joint.
The evidence of Dr Manohar establishes that the surgery has led to an elimination of the recurrent dislocation earlier experienced by the worker. It was, in my view, that recurrent disability which was of particular significance in the assessment of the worker’s earlier level of incapacity.
There is no evidence before the Commission as to the likely or probable period required for convalescence following surgery of the kind that has here been carried out. Having regard to all known circumstances, I consider it is likely that the worker would have remained totally incapacitated following that procedure for a period, at most, of four months. In those circumstances it may be seen that I respectfully agree with the Arbitrator’s conclusion that the worker was totally incapacitated up until 31 July 2008.
I have earlier observed that there is a paucity of evidence addressing the question of the extent of incapacity following surgery. Having regard to the beneficial effects of the surgery, the fact that the affected joint is the non-dominant left shoulder joint and the realities of the labour market accessible to the worker I conclude that he has since 1 August 2008 been partially incapacitated for work as a result of the subject injury. Having said that, the task of assessment of the worker’s entitlement to weekly benefits from that date is again rendered difficult having regard to the paucity of the evidence concerning relevant wage levels. In this regard the Commission is obliged to rely upon its specialist knowledge concerning the state of the labour market generally and those wages that may be generated in the labour market to which the worker has access.
The only evidence before the Commission concerning relevant wage levels was that, as agreed, the worker’s pre-injury current weekly wage rate was $511.76 per week. There has been no evidence nor agreement as to probable earnings but for injury. In the circumstances it is proposed to refer to that current weekly wage rate level as being the average weekly earnings for the purposes of assessment of entitlement pursuant to section 37 of the 1987 Act after the first 26 weeks of total incapacity, and as the probable earnings but for injury for the purposes of assessment of any entitlement pursuant to section 40 of that Act.
Having regard to the finding on this appeal concerning total incapacity, the worker is entitled to his current weekly wage rate from the date of injury to 7 August 2007 (section 36). The worker has a dependent wife and child. Thereafter, and whilst remaining totally incapacitated, he is entitled to the same weekly rate after application of and calculation in accordance with section 37. Accordingly the worker’s entitlement between 8 August 2007 and 31 July 2008 is $511.76 per week.
A determination of the worker’s entitlement pursuant to section 40 from 1 August 2008 requires adherence to the various steps enunciated by the Court of Appeal as expressed in Mitchell. The first of those steps is to determine the worker’s probable earnings but for injury. As observed above the evidence is scant however for present purposes I treat the worker’s current weekly wage rate as his probable weekly earnings but for injury, namely $511.76 per week.
It is necessary to determine the worker’s ability to earn in suitable employment. That question is to be addressed having regard to the provisions of section 40(3) of the 1987 Act which directs attention to the question of the worker’s ability to earn in the labour market reasonably accessible to him, and consideration of those matters set forth in section 43A of the 1987 Act.
The labour market reasonably accessible to the worker in his present circumstances is limited. Having regard to the absence of training and particular skills other than a short course in hospitality, the extent of his disability and the views of Dr Giblin as to his physical capacity, I consider that the labour market accessible to the worker is restricted to that of unskilled light labouring work. Opportunities to obtain such work are limited and there is no doubt that the worker’s disability is a considerable disadvantage to him in competing for any such position. Doing the best I can with the evidence I consider that the worker has an ability to earn at the rate of $15.00 per hour in unskilled light labouring work. Making allowances for the relative scarcity of such work and the likelihood of there being periods during which the worker would be unemployed by reasons of his failure to successfully compete with other job seekers, I consider that he has the capacity to carry out such work for 10 hours per week. On the basis of those findings I conclude that the worker’s ability to earn in his partially incapacitated state is $150.00 per week.
The third step as stated in Mitchell requires calculation of the difference between the probable earnings and ability to earn which gives the result of $361.76 per week.
The Commission must address all relevant circumstances to determine whether, in the exercise of the discretion granted pursuant to section 40, there should be any variation to that mathematical difference. It is argued on behalf of the appellant that part of the worker’s incapacity is attributable to a non-work related back injury as certified in some of the medical certificates. It is correct that mention is made of a low back disability however the evidence is otherwise silent concerning that condition. There is no evidence as to its seriousness in terms of contribution to any incapacity and indeed its appearance in the certificates can only be described as anomalous. The balance of the evidence before the Commission establishes clearly that the subject work injury has given rise to significant disability and incapacity and, in the exercise of the discretion, I decline to make any variation to the calculation based upon the mathematical difference as set out above. In the circumstances the worker is entitled to an award pursuant to section 40 in the sum of $361.76 per week from 1 August 2008 to date and continuing.
CONCLUSION
Having conducted a review on the merits and having made the findings which I have set out above there is a need to amend the Arbitrator’s determination. Having regard to the terms of section 65(3) of the 1987 Act any award pursuant to section 66 of that Act may not be made until such time as the degree of permanent impairment, if any, has been assessed by an approved medical specialist. In the circumstances paragraph one of the Arbitrator’s determination should be revoked. I note that the Arbitrator has made a finding at [85] of Reasons that the worker’s employment was a substantial contributing factor to the worker’s injury in terms of section 9A. That is a finding with which I respectfully agree and that finding remains notwithstanding the revocation of order number one. The award in respect of weekly payments is to be amended on this appeal as set out hereunder.
DECISION
The decision of the Arbitrator dated 6 July 2009 is revoked and the following decision is made in its place:
“1.The assessment of the claim under section 66 of the Workers Compensation Act 1987 in respect of left upper extremity (left shoulder) impairment is remitted to the Registrar for referral to an Approved Medical Specialist. The section 67 pain and suffering lump sum claim is reserved.
2.The respondent to pay the applicant’s medical, hospital or related treatment expenses (section 60 of the Workers Compensation Act 1987) in the sum of $288.00.
3(i) Award for the applicant at the rate of $511.76 per week from 6 February 2007 to 7 August 2007 pursuant to section 36 of the Workers Compensation Act 1987and at the rate of $511.76 per week from 8 August 2007 to 1 August 2008 pursuant to section 37 of the Workers Compensation Act 1987.
(ii) Award for the applicant at the rate of $361.76 per week from 2 August 2008 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
4.The respondent is to pay the applicant’s costs as agreed or assessed with a discretionary costs uplift factor for complexity of ten per cent (10%).
5.The AMS referral is that the Applicant's s66 lump sum claim is to be referred to an AMS under delegation of the Registrar on the following basis:
(a)Date of injury 6 February 2007
(b)Whole person impairment – WPI basis
(c)There is no material to be excluded to the AMS referral from either the ARD or the Reply or Late Documents except for the Briggs Veneers Pty Ltd copy letter to the Applicant of ‘17 January 2006’ (Late Document, rejected)
(d)Body part – left upper extremity (left shoulder).”
COSTS
The appellant has succeeded in part on this appeal however the worker has retained a continuing award considerably in excess of the weekly sum put on behalf of the appellant in the course of argument. In the circumstances I consider it appropriate that the appellant pay the worker’s costs of the appeal.
Kevin O’Grady
Deputy President
27 October 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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