Bulldogs Leagues Club Pty Ltd v Wyatt
[2007] NSWWCCPD 167
•31 July 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bulldogs Leagues Club Pty Ltd v Wyatt [2007] NSWWCCPD 167
APPELLANT: Bulldogs Leagues Club Pty Ltd
RESPONDENT: Dianne Wyatt
INSURER:Employers Mutual NSW Ltd
FILE NUMBER: WCC15812-06
DATE OF ARBITRATOR’S DECISION: 26 March 2007
DATE OF APPEAL DECISION: 31 July 2007
SUBJECT MATTER OF DECISION: Weekly compensation; section 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Stephen Lee Legal
Respondent: Firths The Compensation Lawyers
ORDERS MADE ON APPEAL: Clause 1 of the decision of the Arbitrator, dated 26 March 2007, is revoked and Ms Wyatt’s entitlement to weekly compensation is remitted to another arbitrator for redetermination in accordance with these reasons. The decision is otherwise affirmed.
There is no order as the costs of this appeal.
BACKGROUND TO THE APPEAL
On 19 April 2007, the Bulldogs Leagues Club Pty Ltd (‘the Club’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 26 March 2007. The Respondent to the appeal is Dianne Wyatt. The Club’s workers compensation insurer is Employers Mutual NSW Ltd (‘EMI’).
Ms Wyatt was born on 24 June 1947 and is aged 60. She commenced employment with the Club in 1994, working mostly as a cashier but sometimes as a sorter. Ms Wyatt claims that in late 2002, she began experiencing significant pain and restriction of her neck and of her right thumb and wrist. On 25 May 2003, she experienced significant pain in her right hand, thumb and wrist, and she was “off work” from 26 May 2003 until 28 June 2003. She returned to work on “suitable duties” until 14 February 2004, after which she received no further weekly compensation payments. On 10 March 2004, Ms Wyatt resigned and moved to Queensland, and has not worked since.
On 6 October 2006, the Commission registered Ms Wyatt’s ‘Application to Resolve a Dispute’ in respect of her claim for (1) weekly compensation, (2) medical, hospital or related expenses, and (3) compensation for permanent impairment and pain and suffering. On 27 October 2006, EMI lodged a ‘Reply’. On 15 December 2006, the Arbitrator conducted a teleconference with the parties, following which Ms Wyatt was referred to an Approved Medical Specialist (‘AMS’), Dr Tony Blue, Orthopaedic Surgeon, for assessment. Dr Blue’s Medical Assessment Certificate (‘MAC’) was issued on 25 January 2007. Dr Blue stated:
“She presents with minor loss of her right wrist range of movement but no loss of movement of her right thumb but nevertheless I would believe the most likely diagnosis is aggravation of early developing arthritic degeneration in her right thumb carpometacarpal joint as suggested by the recent ultrasound examination.”
Dr Blue assessed Ms Wyatt as having a 1% whole person impairment in respect of her right upper extremity and a 0% whole person impairment in respect of her cervical spine.
On 27 February 2007, the Arbitrator conducted a further teleconference with the parties. On 5 March 2007, conciliation having proved unsuccessful, he conducted an arbitration hearing. On 26 March 2007, he made a decision in the terms set out below.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 March 2007, records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly benefits compensation at the rate of $92.75 per week from 14 February 2004 to date and continuing.
2. That the Respondent pay the Applicant’s reasonable s 60 expenses on production of accounts or receipts.
3. That the Respondent pay the Applicant the sum of $1,250 in respect of 1% WPI in accordance with the MAC issued by Dr Tony Blue.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In the Statement of Reasons for his decision, the Arbitrator summarised the resolution of the issues in dispute as follows:
“• On 25 May 2003, Dianne Wyatt received an injury to the base of her right thumb arising out of or in the course of her employment as a cashier and sorter with Bulldogs Leagues Club.
• Dianne Wyatt was partially incapacitated for work as a result of her injuries from 14 February 2004.
• Dianne Wyatt’s probable weekly earnings, but for the injury, had she continued to be employed in the same or some comparable employment are $742 per week.
• The average weekly amount she was earning or would be able to earn in some suitable employment from time to time after the injury was $Nil.
• The Applicant has not unreasonably rejected suitable employment.
• Dianne Wyatt’s entitlement to weekly benefits should be reduced by $649.25 because of the reasons set out below.
• The Applicant is therefore entitled to weekly payments for the period of partial incapacity for work from 14 February 2004 to date and continuing of $92.75.”
ISSUES IN DISPUTE
The grounds of appeal identified by EMI are first, that the Arbitrator erred in law in his interpretation and application of section 40(2A) of the Workers Compensation Act 1987 (‘the 1987 Act’), and, second, that the Arbitrator erred in law in his interpretation and application of, and his findings in relation to section 40 of the 1987 Act. The parties’ submissions on these issues are discussed below.
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 before me, and the submissions by the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises more than 20% of the amount awarded in the decision appealed against. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
The first ground of appeal is that the Arbitrator erred in law in his interpretation and application of section 40(2A) of the 1987 Act. Section 40(2A) states:
“(2A) Calculation of reduction in earnings of worker—workers rejecting suitable employment. If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:
(a) the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and(b) the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).”
The first issue identified by the Arbitrator was whether Ms Wyatt had unreasonably rejected suitable employment (paragraph 31). The Arbitrator found she did not do so. He accepted her evidence “that the move was due to her desire to locate to an environment more conducive to her health problems”, which evidence was also supported by “the histories provided in the numerous medical reports”.
EMI notes that Ms Wyatt submitted her resignation, and states that at the time Ms Wyatt elected to move to Queensland, there was employment available for her at the Club’s premises that complied with the restrictions placed upon her by her general practitioner, Dr Richard Sue. EMI submits there was a total absence of evidence supporting the proposition that the warmer, drier climate of Warwick, Queensland would facilitate her recovery from asthma, nervous depression, migraines and the arm condition she asserted had been caused by her employment. There were no medical reports which suggested that the environment in Queensland to which Ms Wyatt was proposing to relocate were more conducive to her health problems. The medical reports merely reaffirmed her reasons for relocating.
EMI submits that the Arbitrator did not address, as he was obliged to do, the reasonableness or otherwise of Ms Wyatt’s decision to relocate from Sydney to Warwick. The fact that the worker’s conviction that such a move would benefit her health was genuine, does not lead to a conclusion that the conviction was reasonable. The Arbitrator’s conclusion was therefore misinformed and should be set aside. EMI submits Ms Wyatt unreasonably rejected suitable employment offered to her by the Club and, applying section 40(3), her weekly entitlement is $Nil.
Ms Wyatt’s solicitors point to her oral evidence at the hearing (transcript p 6) that her treating doctor told her that moving out of Sydney to an area where the humidity is not as high and the environment is better would help her asthma. Her asthma has improved since moving to Warwick. Her solicitors also note her evidence (transcript p 13) that she loved her pre-injury work, and that since moving to Warwick, the Queensland Health Service is providing her with fortnightly domestic assistance to help with her heavier housework. Ms Wyatt’s solicitors conclude that it is hard to imagine a more compelling ground for reasonably rejecting suitable duties that the preservation and improvement of one’s health.
The second ground of appeal is that the Arbitrator erred in law in his interpretation and application of, and his findings in relation to section 40 of the 1987 Act. EMI submits there are significant internal inconsistencies in the Arbitrator’s findings in endeavouring to follow the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’). In particular, EMI submits that the Arbitrator’s finding that the amount Ms Wyatt would be able to earn post injury in the labour market reasonably accessible to her (Mitchell step 2) was $Nil was an error since he clearly accepted evidence that her injuries did not prevent her working seven hours a day on five days a week, and that her residual earning capacity was $649.25. At Mitchell step 4, the Arbitrator should have applied the section 40(1) discretion to the difference between the amount she would probably having been earning if uninjured, agreed by the parties to be $742.00, and $649.25.
EMI also contends that the medical evidence preferred by the Arbitrator, that of Dr Perla and Dr Sue, was to the effect that Ms Wyatt could work eight hours a day on five days a week. The effect of this is that she has an earning capacity equal to her pre-injury capacity and, therefore, no entitlement under section 40.
Ms Wyatt’s solicitors also submit the Arbitrator erred, in so far as he ought to have found that Ms Wyatt could only work six hours a day, with the result that the award should be increased to $185.50 per week or, alternatively, having found that there were no discretionary matters, he should have made an award at the full statutory rate. Her solicitors point to Ms Wyatt’s oral evidence that she was struggling with six hours a day in the duties as modified by the Club, suggesting that the correct award should be at the full statutory rate, given evidence of her inability to engage in any suitable employment in the general labour market reasonably accessible to her. They submit that the true discretionary matter, if any, is whether the reduction in her weekly earnings was affected by her asthma.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, EMI must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
The five step process prescribed by the NSW Court of Appeal in Mitchell, at pages 529 to 530, is as follows:
“1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a)) ...
2. To determine the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:‘(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.’ ...
3. To subtract the figure derived from 2. from the figure derived from 1. (section 40(2))
4. To decide whether and to what extent the reduction calculated as above, bears such relation to the amount of that reduction as may appear proper in the circumstances of the case (section 40(1)) ...5. To make an award in the amount arrived at in Step 4.”
With regard to the first ground of appeal, that the Arbitrator erred in law in his interpretation and application of section 40(2A) of the 1987 Act, I have reviewed the evidence before the Arbitrator. I note that in her statement dated 4 September 2006, at paragraph 5, Ms Wyatt said that her asthma worsened in the period April to November 2002 after the gaming department of the Club:
“moved to a new building with no smoke extractors and low ceilings. I was performing three cashier, one floor and one bar shift. My asthma worsened and indeed was out of control. I lost a lot of time off work due to this condition.
6. At this time my doctor and the club doctor both agreed I could only work in a semi-smoke free area such as within cashier booths. This occurred in November 2002.”
Ms Wyatt said, at paragraph 14, that after May 2003, she:
“continued to have troubling symptoms and also became somewhat depressed. I do not believe that I was treated very well at work following my injuries. I feel my health was deteriorating generally which caused a worsening of my asthma which I believe was significantly contributed my capacity [sic] for smoking environment that existed in the club together with worsening migraine headache as well as injuries and disabilities in my neck and shoulder. Accordingly matters came to a head and I resigned from my employment.”
Ms Wyatt said, at paragraph 16:
“My move to Queensland was motivated by my asthma, migraine headaches and the injuries that I have, as clearly moving to a climate largely consisting of ‘dry heat’ is in my best interests as advised by my medical practitioners. But for my injuries and asthma, which I believe was caused by the significantly smoky environment within the club I would not have taken that step.”
In her oral evidence (transcript p 6), Ms Wyatt said that her treating doctor in Sydney, Dr Richard Sue, told her that she “should really move to somewhere it wasn’t as high humidity and it shouldn’t be, you know, around, you know, where it’s highly polluted, a smoke area”. She told Dr Sue she had always wanted to move to the country and he said that would be a better environment. Ms Wyatt said the move to Warwick, which has a very dry heat, has helped her asthma.
There is otherwise little evidence to support this. A doctor to whom Ms Wyatt was referred by the Club, Dr John Barlow, in a report to the Club dated 4 November 2002, stated:
“I would have no problem with this lady doing her job as cashier at the club but certainly I think I would take her away from any floor or bar duties. There is no doubt that smoke is an aggravating factor when it comes to asthma but I think if she was in a semi-smoke free environment in the cashiers box then she should not have too much trouble.”
Dr WGD Patrick, Surgeon, in a report dated 31 May 2005, stated:
“It may well be that the passive smoking environment at the club has caused or aggravated some tendency to chronic airways limitation/asthma, occurring on a background of childhood bronchitis. She does, however, continue to smoke herself, albeit just a small number of cigarettes per day.”
I note that in the later report of Dr J Brian Stephenson, Orthopaedic Surgeon, dated 16 November 2006, Dr Stephenson noted that Ms Wyatt moved to Warwick because of her asthma. In his earlier report dated 18 August 2005, Dr Stephenson recorded, under the heading “Employment History”, that Ms Wyatt told him “that when the club moved to a new building her asthma worsened” and she saw the club’s doctor. She referred to the smoky conditions.
Dr Tony Blue, the AMS to whom Ms Wyatt was referred for assessment of permanent impairment attributable to her right hand and back, in the MAC dated 25 January 2007 under the heading “History Relating to the Injury”, noted that Ms Wyatt told him that after she was transferred to shifts involving cashier work only, and no sorting of poker machine dockets:
“there was slow improvement in her right thumb problems however she did lose significant time from work due to a combination of asthma, migraines and depression...
For medical reasons, basically her asthma she translocated from Sydney to Warwick in Southern Queensland in March of 2004.”
Dr Blue also records that in May 2004, Ms Wyatt was granted a disability support pension due to a combination of back problems, migraines, asthma and her right hand problems.
In his Statement of Reasons, having discussed Ms Wyatt’s evidence and the medical evidence, the Arbitrator said, at paragraph 31:
“I find that the Applicant did not unreasonable [sic] reject suitable employment. I accept the Applicant’s evidence that the move was due to her desire to locate to an environment more conducive to her health problems. This is supported by the evidence given by the Applicant and also by the histories provided in the numerous medical reports.”
In my view, the evidence, while scanty, supports a finding that Ms Wyatt’s asthma was aggravated by her working in a smoky environment at the Club. It appears, however, that from November 2002, she was only working in “semi-smoke free” areas such as within cashier booths. With regard to Ms Wyatt’s move to Warwick, the medical reports merely record Ms Wyatt’s stated reasons for moving to Warwick. No opinion is proffered as to the benefits for her asthma of doing so. However, in my view, the evidence as to her asthma being aggravated by the smoky environment in the Club, in conjunction with Ms Wyatt’s evidence as to the advice she received from Dr Sue, is sufficient to support a finding that it was not unreasonable for her to reject the offer of suitable employment. A reading of the Arbitrator’s summary of the relevant evidence, which precedes his finding in this regard, adequately explains his reasoning for so finding. I therefore reject the first ground of appeal.
The second ground of appeal is that the Arbitrator erred in law in his interpretation and application of, and his findings in relation to section 40 of the 1987 Act. The Arbitrator found Ms Wyatt was partially incapacitated for work as a result of the injury to her hand. Addressing Mitchell step 1, he found the parties had agreed the amount Ms Wyatt would probably have been earning if uninjured was $742.00 per week.
Turning to Mitchell step 2, the Arbitrator found Ms Wyatt had not earned any income since leaving her employment with the Club. He therefore turned to section 40(2)(b), although it would appear, in error, referring to section 42(2)(b). The Arbitrator noted Ms Wyatt’s submission that her capacity for work was limited to five or six hours a day or 25 to 30 hours a week. He noted she would turn 60 this year, had relocated to Warwick for what he had found to be reasonable grounds, and that her earning ability there was very limited both because of her health problems and the availability of work. However, she had not been actively seeking suitable employment and he had no evidence as to the labour market in Warwick. The Arbitrator concluded that whilst Ms Wyatt “clearly has a significant residual capacity to work and earn”, the amount she would be able to earn in the labour market reasonably accessible to her was $Nil. Addressing Mitchell step 3, he therefore deducted $Nil from $742.00 resulting in the figure of $742.00.
However, addressing Mitchell step 4 - the exercise of the section 40(1) discretion, the Arbitrator said, at paragraph 45:
“I find that the Applicant had a residual earning capacity of seven hours per day five days per week or at the early rate of $18.55 in an amount of $649.25 having regard only to the work injury which is the subject of this claim.”
He then discussed the evidence on which he based this finding. Having done so, the Arbitrator purported to exercise his discretion and reduce the amount arrived at in step 3 (he mistakenly referred to step 4) by Ms Wyatt’s “notional earning capacity of the amount of $649.25”, and made an award of $92.75 at Mitchell step 5.
In my view, while the Arbitrator supported his finding with regard to Ms Wyatt’s potential earning capacity post-injury with reference to evidence, I agree with EMI that a finding of potential post-injury earning capacity should be made at Mitchell step 2, with reference to what constitutes suitable employment for the worker and to her ability to earn in the general labour market reasonably accessible to her. The Arbitrator did not adequately address what constitutes suitable employment for Ms Wyatt, and said he had no evidence as to her efforts to find suitable work (although he noted her evidence that she had not been actively seeking work) or as to the labour market in Warwick. These are matters on which further evidence may be required from the parties.
I am therefore satisfied that the Arbitrator made an error of law in addressing Mitchell steps 2 and 4. Given the apparent lack of evidence as to suitable alternative employment for Ms Wyatt and the general labour market reasonably accessible to her in Queensland, the correct or preferable decision is to set aside the decision under review and to remit the matter to another arbitrator to redetermine Ms Wyatt’s entitlement to weekly compensation under section 40 of the 1987 Act, subject to a finding that she did not unreasonably reject suitable employment by moving to Warwick.
I note Ms Wyatt’s solicitors’ submission that the true discretionary matter, if any, was whether the reduction in her weekly earnings was affected by her asthma. I agree that this is a matter that could appropriately be taken into account at Mitchell step 4 when the matter is redetermined.
DECISION
Clause 1 of the decision of the Arbitrator, dated 26 March 2007, is revoked and Ms Wyatt’s entitlement to weekly compensation is remitted to another arbitrator for redetermination in accordance with these reasons. The decision is otherwise affirmed.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
31 July 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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