Broadspectrum Australia Pty Ltd v Skiadas - [2016] NSWWCCPD 34

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Broadspectrum Australia Pty Ltd v Skiadas [2016] NSWWCCPD 34
APPELLANT:	Broadspectrum Australia Pty Ltd
RESPONDENT:	Jenny Skiadas
INSURER:	Self-insured
FILE NUMBER:	A1-6006/15
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:	16 March 2016
DATE OF APPEAL DECISION:	30 June 2016
SUBJECT MATTER OF DECISION:	Fresh evidence on appeal, s 354(6) of the Workplace Injury Management and Workers Compensation Act 1998; ability to earn in suitable employment as defined by s 32A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Holman Webb Lawyers
Respondent:	Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 16 March 2016 is confirmed.

INTRODUCTION

This appeal concerns a claim for weekly compensation under Pt 3 Div 2 of the Workers Compensation Act 1987 (the 1987 Act), amended by the Workers Compensation Legislation Amendment Act 2012. It specifically concerns whether the Arbitrator erred in finding that from 12 February 2015 the worker has “no current work capacity” as defined by s 32A of the 1987 Act.

BACKGROUND

The respondent worker, Jenny Skiadas, worked as a cleaner for the appellant, Broadspectrum Australia Pty Ltd (formerly known as Transfield Services (Australia) Pty Ltd). Ms Skiadas cleaned schools and TAFE facilities. She was required to vacuum, dust, polish, use a buffing machine, and undertake other cleaning duties.
It is not disputed that Ms Skiadas sustained an injury to her back on 15 November 2011 after using a buffing machine and an injury to her neck on 9 July 2014 after using a vacuum cleaner in the course of her employment with the appellant. It is also not disputed that Ms Skiadas sustained injury to her back and neck as a result of the nature and conditions of her employment as described above.
From 15 November 2011, Ms Skiadas commenced working light duties. There were however, intermittent periods when Ms Skiadas was totally incapacitated. Liability for weekly compensation and medical expenses was accepted for those periods. Ms Skiadas returned to full-time duties on 13 December 2013 with restrictions in place concerning the use of the buffing machine. By June 2014 Ms Skiadas had returned to normal cleaning duties. However, Ms Skiadas began to experience increased back and neck pain and she ceased work on or about August 2014.
On 29 July 2014, the appellant issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining further liability for the neck and right arm injury of 9 July 2014. The reasons for doing so are not currently relevant. However, on 17 November 2014, the appellant issued a further s 74 notice declining liability for weekly compensation and medical expenses. It denied that Ms Skiadas continued to suffer an incapacity, under s 33 of the 1987 Act, as a result of a compensable injury to the neck.
On 21 August 2015, the appellant issued a further s 74 notice declining liability for lump sum compensation pursuant to s 66, in respect of a claim for lump sum compensation for injury to the neck and back.
On 21 October 2015, Ms Skiadas filed an Application to Resolve a Dispute (the Application) in which she sought weekly payments of compensation from 9 July 2014 to date and continuing and medical expenses in respect of the above injuries. On 11 November 2015, the appellant lodged a reply to the Application disputing liability for the reasons identified in the s 74 notices.
On 8 February 2016, the matter proceeded to conciliation and arbitration before a Commission Arbitrator, following which the Arbitrator reserved her decision.
On 16 March 2016, the Arbitrator delivered her decision and a statement of reasons. She found in favour of Ms Skiadas. Also on 16 March 2016 the Commission issued a Certificate of Determination is in the following terms:
“The Commission determines:
1.Respondent to pay the applicant’s section 60 expenses, including the surgery to the cervical spine as recommended by Dr Al-Khawaja.
2.Respondent to pay the applicant:
(a)$424.89 per week from 10 July 2014 to 9 October 2014 pursuant to section 36(2) of the Workers Compensation Act 1987;
(b)$309.80 per week from 10 October 2014 to 11 February 2015 pursuant to section 37(3) of the Workers Compensation Act 1987, and
(c)$613.80 per week from 11 February 2015 to date and continuing pursuant to section 37(1) of the Workers Compensation Act 1987.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

The appellant appeals the Arbitrator’s finding only in so far as it concerns the finding that Ms Skiadas had no capacity to work from 12 February 2015.

PRELIMINARY MATTERS

There is no issue that the threshold requirements of s 352(3) and (4) of the 1998 Act are satisfied. Therefore there is no impediment to the appeal proceeding.

ON THE PAPERS

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 Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

FRESH EVIDENCE

The appellant seeks leave to admit and rely on the following fresh evidence:
(a)     approval for surgery by Dr Darweesh Al-Khawaja, Ms Skiadas’ treating orthopaedic surgeon, dated 6 April 2016 “which is scheduled to occur on 15 April 2016”;
(b)     facsimile from Dr Al Khawaja dated 6 April 2016 to Transfield Services attaching a quotation for proposed spinal surgery in respect of Ms Skiadas and attached quotation for surgical services dated 1 April 2016;
(c)     facsimile dated 7 April 2016 from Ainoy Chareunsouk, Case Manager Workers Compensation Broadspectrum, accepting liability for the proposed surgery;
(d)     facsimile dated 7 April 2016 from Dr Sritharan to Mr Chareunsouk attaching a quotation for fees in respect of the surgical procedure in the sum of $3,118.13, and
(e)     facsimile from Mr Chareunsouk dated 8 April 2016 to Dr Sritharan noting that the appellant had accepted liability for the proposed surgical fees.
The surgery the subject of these exchanges was a C4/5 and C5/6 anterior cervical discectomy and fusion, which I infer was performed by Dr Al-Khawaja on 15 April 2016.
‘Fresh evidence’ on appeal is governed by s 352(6) of the 1998 Act which states:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The appellant submits that the fresh evidence should be admitted on appeal for the following reasons:
“(a) it was not available to the Appellant at the time of the proceedings; and
(b)     it is relevant to the issue of the Respondent’s Worker’s ongoing capacity for employment since 12 February 2015; and
(c)     it is appropriate to draw the evidence to the attention of the Commission as the Respondent Worker’s status may have changed, due to surgery, by the time the matter is considered by the President of the Commission; and
(c)    it is no [sic] prejudicial to the Respondent Worker, and
(d)     [it is] in the interests of justice between the parties for the evidence to be admitted.”
Ms Skiadas made no submissions in relation the application to admit fresh evidence on appeal.
All of the documents the subject of this application post-date the arbitration hearing. Clearly they were not available to the appellant at the arbitration hearing. The Arbitrator determined the dispute in relation to the liability for the surgical treatment in favour of Ms Skiadas. As I have indicated, I infer that following the determination, a decision was made to proceed with the surgery which was undertaken on 15 April 2016.
As the issue in dispute on this appeal concerns the worker’s capacity for employment, the fact that Ms Skiadas has recently submitted to anterior discectomy and fusion at two levels of the cervical spine is relevant to that issue. The respondent to the appeal has not submitted that the admission of the fresh evidence will result in any prejudice.
For these reasons I grant leave for the fresh evidence to be admitted on appeal.

ISSUES ON APPEAL

This appeal concerns the Arbitrator’s determination concerning Ms Skiadas’ ability to earn in suitable employment as defined by s 32A of the 1987 Act. In particular, her finding that Ms Skiadas has no capacity for work from 12 February 2015 onwards.

THE EVIDENCE

Ms Skiadas’ evidence

Attached to the Application is a document titled “Statement of Worker”, “Undated (received on 05/08/2014)”. That document contained a handwritten response to a questionnaire from Ms Skiadas’ solicitors, Steve Masselos & Co Pty Ltd, dated 14 July 2014 to Ms Skiadas. The handwritten responses do not elucidate any information in respect of employment history or ongoing symptoms beyond that detailed in the medical evidence.
On 26 November 2015, Ms Skiadas’ solicitors filed an Application to Admit Late Documents attaching a statement of Ms Skiadas dated 24 November 2015. In that statement, Ms Skiadas states that although she had “initially hoped to return to work as a cleaner”, as the appellant was not able to provide her with any suitable duties she had not returned to work since August 2014. She states that in about August, September or October 2014 she was under financial stress. The appellant refused to permit her to return to full duties without an unrestricted medical certificate. She prevailed upon Dr Crosson to certify her fit for normal duties. She states that when she returned to normal duties in August 2014 she had to “stop work after only about 3½ hours because of worsening back and neck pain” while she was “doing normal cleaning duties”. She further states that, in February 2015, her employment with the appellant was terminated because she was not able to perform her pre-injury cleaning duties.
Ms Skiadas states that since March 2015 she has been receiving Centerlink benefits and is now receiving the Disability Support Pension.
Ms Skiadas states that she continues “to have pain and restrictions in my back and also in my neck” and that she has “felt worsening pain in my back”. She states that she is “in a lot of pain with my neck and back, and I am restricted in what I can do …” She also states that she wishes to undergo spinal surgery recommended by Dr Al-Khawaja. She further states that she continues to consult Dr Crosson, her general practitioner, for treatment and takes medication for pain and restrictions, including Endone, Tramal, Temaze and Lexapro. In addition, she states that Dr Al-Khawaja referred her for physiotherapy and aquatherapy.

The medical evidence

In a report dated 11 December 2014, Dr Al-Khawaja opined:
“In my opinion, Ms Skiadas’s job as a cleaner is a major contributing factor to her neck pathology. I do not recommend that she goes back to cleaning duties, she can perform light duties where they do not strain her neck.”
As the Arbitrator noted, Dr Al-Khawaja provided further reports throughout 2015. On 15 January 2016, noting that conservative attempts to manage Ms Skiadas’ condition had failed and that she was still in “agonising pain”, he recommended surgical intervention in the form of a spinal fusion at C4/5 and C5/6.
Dr Peter Johnson, Ms Skiadas’ treating rheumatologist, noted that her work involved relatively heavy work operating a buffing machine that required her to sweep the machine from side to side applying significant pressure and stress to her back. He reported on 22 April 2013 that she had made multiple attempts to return to full duties including buffing but on each occasion this had precipitated a recurrence of her symptoms.
In a report dated 31 January 2014, Dr Johnson noted that Ms Skiadas required ongoing analgesics and was experiencing pain on a regular basis. He noted that she was ingesting Panadeine Forte up to three times a day. Dr Johnson considered that her continuing employment was at the expense of pain and medication requirements. He considered it unlikely that even with conservative treatment, there would be a complete resolution of her symptoms.
Dr Patrick is Ms Skiadas’ treating general and vascular surgeon. In a report dated 22 April 2014, Dr Patrick recorded increasing symptoms in the lower back and noted that Ms Skiadas continued to require strong narcotic analgesic medication to assist with controlling her symptoms, including Endone. Dr Patrick formed the view that Ms Skiadas was clearly permanently incapacitated for her “pre-work duties”, which I infer is a reference to her pre-injury duties. He stated:
“She is now permanently incapacitated for work of a physical/manual nature which involves heavy lifting/carrying, frequent bending, prolonged stooping or work in awkward situations, or activities which might result in significant jolting/jarring to cervical and/or thoracolumbar spinal regions. She is permanently incapacitated for work involving having the head/neck in awkward situations or sustained postures for more than short periods. At best, she would only be fit for suitable lighter part-time work in a sympathetic work environment, not involving these sorts of activities. She is permanently incapacitated for work as an industrial cleaner.
She is still only 48 years of age, but clearly, her employment options and opportunities now will be markedly restricted.
…
Given the overall presentation and the nature and extent of her ongoing symptoms now, and the fact that she is continuing on significant dosages of strong narcotic analgesic medication as well as other medications, I do believe the reality is that unfortunately Ms Skiadas is realistically unemployable on the open labour market by reason of her injuries and ongoing disabilities.”
Dr Chris Harrington is an orthopaedic surgeon who examined Ms Skiadas at the request of the appellant’s solicitors. In a report dated 23 June 2015, Dr Harrington concluded that Ms Skiadas was not fit for her pre-injury duties as a school cleaner. He said “if she is unable to obtain permanently modified duties as a school cleaner where she can work with an off-sider who manages the heavier tasks such as using the vacuum pack and buffing machine, she would be better suited to alternate employment, such as sales work or clerical duties (full time).”
Dr Crosson issued a series of WorkCover medical certificates and certificates of capacity between 21 February 2013 and 15 October 2015. His certifications vary from no capacity for employment during various periods to having limited capacity and imposing restrictions including lifting limits of 5 kg with the right arm. On 12 February 2015 Dr Crosson certified Ms Skiadas as having no current work capacity. The evidence reveals that Dr Crosson continued to issue certificates of capacity indicating that Ms Skiadas had no capacity for employment, the last of which in the evidence before me is dated 15 October 2015, shortly before the Application was filed.

The Arbitrator’s reasons

The Arbitrator summarised the relevant evidence identified in the relevant legislative provisions. She noted that Ms Skiadas had not returned to work following the injury on 9 July 2014, apart from one unsuccessful attempt. She stated that Ms Skiadas had initially hoped to return to work as a cleaner but as the appellant was unable to provide her with any suitable duties she had not returned to work.
The Arbitrator referred to Ms Skiadas’ evidence that in about August, September and October 2014 she was under financial stress and was not working. The appellant had refused to let her go back to work without clearance for her normal duties. In those circumstances Ms Skiadas prevailed upon Dr Crosson to provide her with a medical certificate to enable her to return to work on normal duties. She did return to work on normal duties but was forced to cease work after only 3.5 hours because it exacerbated her neck and back symptoms and she has continued to have pain and restrictions in her neck and back.
The Arbitrator noted that Ms Skiadas’ employment was terminated in about February 2015 because she was unable to perform her cleaning duties. The Arbitrator stated that it is “arguable” that Ms Skiadas has some work capacity based on her medical certificates that certify her as being able to work full hours on suitable duties. In submissions before the Arbitrator the appellant submitted that Ms Skiadas would be fit for sales work or sedentary duties in an office environment on a full-time basis.
No evidence was put before the Arbitrator concerning whether Ms Skiadas had any computer skills or any skills that could apply to administrative work. There was no evidence before her that Ms Skiadas had ever worked in a sales role. Ms Skiadas’ whole employment history had been as a sewing machinist, process worker and industrial cleaner. The Arbitrator noted her reliance upon strong narcotic analgesic medication.
There was no evidence that Ms Skiadas had been involved in any return to work plan or offered any occupational rehabilitation services by the appellant. In respect of the period since 12 February 2015 the Arbitrator was satisfied that Ms Skiadas had “no current work capacity” as defined by s 32A of the 1987 Act.
Having regard to the definition of suitable employment in s 32A of the 1987 Act, Ms Skiadas’ medical evidence, her age, education, skills, work experience and other matters referred to in the definition, the Arbitrator was not satisfied that Ms Skiadas has been fit for suitable employment at any time since 12 February 2015.
The Arbitrator concluded that Ms Skiadas had been totally incapacitated for work since 12 February 2015 and that incapacity was continuing due to the employment injury on 9 July 2014. She entered an award in favour of Ms Skiadas for varying periods, including a period from 11 February 2015 to date and continuing, in accordance with Div 2 of Pt 3 of the 1987 Act.

GROUNDS OF APPEAL

The appellant alleges that the Arbitrator erred in finding that:
(a) Ms Skiadas has had and has no capacity for work from 12 February 2015, and
(b) Ms Skiadas was and continues to have no capacity for work from 12 February 2015 onwards.

SUBMISSIONS

Appellant’s submissions

The certificate of Dr Crosson of 12 February 2015 certifies Ms Skiadas as having no capacity for work at all. The certificate notes that surgery has been recommended by a neurosurgeon as part of the treatment plan however it is submitted that there is no mention in that certificate of any change in Ms Skiadas’ condition or pathology in terms of the cervical spine injury that has led to a change in her capacity for employment.
The appellant submits that the Arbitrator erred in finding that Ms Skiadas had no capacity for work in respect of her cervical spine on the basis that the Arbitrator did not disclose her reasons for concluding a change in Ms Skiadas’ capacity.

The appellant submits that on 8 January 2015, Dr Crosson certified Ms Skiadas as having capacity for work for her normal hours and days with a 5 kg lifting restriction. In the certificate of 15 February 2015 Dr Crosson gave no reason for a change in the certification. The certificate coincided with a change in Ms Skiadas’ employment status, her employment having been terminated on or about 12 February 2015. The only available inference, so it is submitted, is that the doctor relied on this change of status in order to certify no capacity for employment. The appellant submits:
“This is not a proper basis for so concluding as the arbitrator has apparently adopted the inferential reasoning of Dr Crosson (and there being no other explanation for her conclusion she erred.”
The appellant further submits that the Arbitrator failed to take account of the whole of the medical evidence including the evidence of Dr Harrington during the period post 12 February 2015 (which she previously accepted) as to Ms Skiadas’ capacity for work and in accepting the evidence of Dr Crosson as to her capacity for employment from 12 February 2015 onwards.

Ms Skiadas’ submissions

Ms Skiadas submits that the only issue taken by the appellant with the Arbitrator’s determination was that she did not disclose her reasons for what the appellant asserted was a “change in the respondent worker’s capacity”. She submits that the Arbitrator did not err in her findings in that respect for the following reasons.
Ms Skiadas submits that Dr Crosson exercised his clinical judgment when completing the WorkCover medical certificate on 12 February 2015. He was not required to explain his reasons or to make comparisons with certifications at earlier points in time.
In the absence of evidence, no inference can be drawn that the certificate of 12 February 2015 was based on anything other than Dr Crosson’s clinical judgment at that time.
It is submitted that the certificate operated as a “snapshot” of Ms Skiadas’ clinical presentation and the doctor’s clinical judgment at the time the certificate was issued. It was not necessary for Dr Crosson to provide a running commentary as to comparisons of incapacity for work in previous times.
Ms Skiadas submits that Dr Harrington’s opinion that she was “better suited” to alternative employment did not specifically give an opinion as to whether or not the worker had no current capacity for employment, nor did he give an opinion as to any physical restrictions or duties she would be capable of performing. Ms Skiadas submits that Dr Harrington’s opinion was of little assistance or weight to the Arbitrator in assessing her capacity for employment. At best it provided vague support for the notion of some capacity in unidentified and ill-defined notions of “sales work” or “clerical duties”.
It is submitted that on the other hand Dr Patrick, who was of the opinion that Ms Skiadas had no capacity for employment, based his assessment on her overall presentation, the nature and extent of her ongoing symptoms and her continuing reliance upon significant dosages of strong narcotic analgesic medication.
Additionally, so Ms Skiadas submits, the Arbitrator relied on the opinion of Dr Al-Khawaja which noted that at least as of 16 October 2015 her clinical presentation was that she was “still in agonising pain” in her neck and was awaiting approval for cervical spine surgery.
Ms Skiadas submits that the Arbitrator provided adequate reasons for her conclusions.

LEGISLATION

Ms Skiadas sought compensation under ss 36 and 37 of the 1987 Act. An entitlement to compensation under those provisions calls for an assessment of the worker’s “current work capacity”.
“Current work capacity” is defined in s 32A of the 1987 Act as “a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment”.
“No current work capacity” is defined in s 32A as “a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment”.
The term “suitable employment” is defined in s 32A to mean:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a)     having regard to:
(i)  the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)  the worker’s age, education, skills and work experience, and
(iii)  any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)  any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)  such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of:
(i)  whether the work or the employment is available, and
(ii)  whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)  the nature of the worker’s pre-injury employment, and
(iv)  the worker’s place of residence.”

CONSIDERATION

This is an appeal brought pursuant s 352 of the 1998 Act. An appeal under s 352 is characterised by the identification and correction of legal, factual or discretionary error.
As error now defines the appeal process under s 352, the following principles discussed by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (Whiteley Muir) (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227) are relevant. Those principles were summarised by Deputy President Roche (at [19]) in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 in so far as they are relevant to proceedings in the Commission:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
The appellant’s submissions failed to identify any such error. In substance, the appellant’s submissions merely seek to re-agitate the merits of the issue before the Arbitrator and cavil with her conclusions with respect to Ms Skiadas’ capacity for work.
It is undeniable that Ms Skiadas is not able to return to her pre-injury duties. The appellant has not submitted to the contrary. The Arbitrator accepted, however, that it was arguable that Ms Skiadas had some residual work capacity. The Arbitrator analysed the evidence having regard to the factors in s 32A to determine what capacity, if any, Ms Skiadas retained. However, after weighing the evidence referred to below, she concluded that Ms Skiadas had “no current work capacity” beyond 12 February 2015. In particular, the Arbitrator noted:
(a)     Dr Patrick considered that Ms Skiadas was “realistically unemployable”;
(b)     Dr Crosson’s certification of “no current work capacity” as at 12 February 2015;
(c)     Dr Harrision’s opinion concerning Ms Skiadas’ suitability for clerical or administrative work;
(d)     Ms Skiadas’ age (50 at the date of the Application);
(e)     Ms Skiadas’ unsuccessful attempts to return to full-time duties;
(f)      the appellant’s inability to provide Ms Skiadas with suitable duties;
(g)     Dr Crosson’s certification of 4 August 2014 clearing Ms Skiadas fit to resume normal duties, which was issued at Ms Skiadas’ request in an attempt to return to work at that time due to financial pressures arising from her extended absence from work;
(h)     a lack of evidence that Ms Skiadas had any computer skills that she could apply to administrative work;
(i)      a lack of any history of work in sales or clerical work;
(j)      Ms Skiadas’ history of employment which was exclusively work as a machinist or process work or in industrial cleaning;
(k)     Ms Skiadas’ complaint of significant levels of ongoing pain;
(l)      the need for strong narcotic analgesic medication, and
(m)   the lack of a return to work plan or any occupational rehabilitation.
The Arbitrator’s finding that Ms Skiadas had no current capacity for work from 12 February 2015 was clearly available on the evidence and one with which I agree.
I do not accept the appellant’s submission the Arbitrator was required to inquire into and explain her acceptance of Dr Crosson’s certification of Ms Skiadas as having no current work capacity for any employment on 12 February 2015. Dr Crosson was required to exercise his clinical judgment at that time, in other words he was required to assess her “current” capacity. That is clearly what he did. The Arbitrator was entitled to rely on Dr Crosson’s assessment of Ms Skiadas’ capacity for work at that point in time.
There is no evidence from which an inference could or should be drawn that Dr Crosson’s assessment was influenced by the termination of Ms Skiadas’ employment. In fact, she was not terminated until 13 February 2015, the day after the certificate was issued. As the Court of Appeal recently discussed in Sabanayagam v St George Bank Limited [2016] NSWCA 145 (per Sackville AJA at [119] (Beazley P agreeing at [1], [6]) “the making of findings and the drawing of inferences in the absence of any evidence to support them is an error of law (Australian Broadcasting Tribunal v Bond[1990] HCA 33; 170 CLR 321 at 355–356 (Mason CJ, Brennan and Deane JJ agreeing); Bruce v Cole(1998) 45 NSWLR 163 at 187–188 (Spigelman CJ, Mason P, Sheller and Powell JJA agreeing))”.
The Arbitrator’s conclusion with respect to Ms Skiadas’ capacity for work is consistent with Dr Patrick’s evidence that given her physical restrictions Ms Skiadas was “realistically unemployable”. That was a conclusion reached having regard to Ms Skiadas’ incapacity for physical or manual work involving heavy lifting, frequent bending, prolonged stooping or work in awkward situations or activities that might result in significant jolting or jarring to her cervical or lumbar spine. Ms Skiadas was also considered by Dr Patrick to be permanently incapacitated for work involving having the head or neck in awkward situations of sustained postures for more than short periods. Given Dr Patrick’s detailed assessment of Ms Skiadas’ functional capacity, his opinion was compelling. It is difficult to conceive of any work Ms Skiadas could perform given those restrictions.
Deputy President Roche noted in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) (at [59]):
“In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.”
Dr Harrington’s assessment that Ms Skiadas could work as a school cleaner if she could obtain permanently modified duties where she can work with an off-sider to manage the heavier tasks is with all due respect somewhat fanciful. Such work is not “real work in the labour market” as such jobs simply do not exist. In any event the task of the Arbitrator was to identify whether there were any “real jobs” (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to sub-s (a) of the definition of “suitable employment”, Ms Skiadas was able to do, regardless of whether those jobs were “available” (Dewar at [63]). For the reasons discussed above that is what the Arbitrator did.
Further, the Arbitrator was correct to find that, as to Dr Harrington’s alternative opinion that Ms Skiadas would be better suited to sales work or clerical duties, there was no evidence that Ms Skiadas had the education or skills necessary to equip her to undertake such work. As the Arbitrator correctly found, Ms Skiadas’ employment history had been exclusively in manual or process type work. Therefore it was open to the Arbitrator to conclude that clerical or administrative work was not “work for which the worker is currently suited”.
I am satisfied that the evidence overwhelmingly supported the Arbitrator’s conclusion that Ms Skiadas had no current work capacity beyond 12 February 2015. As I have indicated, no error of the kind identified in Whiteley Muir has been demonstrated with respect to that finding.
Notwithstanding these findings, the documents admitted as fresh evidence on appeal lead me to infer that Ms Skiadas submitted to a spinal discectomy and fusion at two levels of the cervical spine on or about 15 April 2016. That being the case it is also reasonable to infer that as a result of the surgery Ms Skiadas will have no capacity for work for an indeterminate period of time thereafter, however I do not base my decision on those inferences.
It follows that the appeal must fail.

DECISION

The Arbitrator’s determination of 16 March 2016 is confirmed.

Judge Keating
President

30 June 2016