Camden Council v Victory - [2014] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Camden Council v Victory [2014] NSWWCCPD 60
APPELLANT:	Camden Council
RESPONDENT:	Bradley Victory
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-887/13
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	4 June 2014
DATE OF APPEAL DECISION:	15 September 2014
SUBJECT MATTER OF DECISION:	Weekly compensation; challenge to finding of total incapacity; self-employed worker; approach to determining actual earnings while self-employed; approach to assessment of ability to earn after self-employment ceases; s 37 of the Workers Compensation Act 1987 (as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012); relevance of alleged supervening incapacity; non-compliance with Practice Direction No 6
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Goldbergs Lawyers
Respondent:	Firths – The Compensation Lawyers
ORDERS MADE ON APPEAL:	1. Paragraphs 1 and 2 of the Arbitrator’s amended determination of 4 June 2014 are revoked and the following order is made in their place: “1. The respondent employer is to pay to the applicant worker weekly compensation at the appropriate statutory rate for a worker with a dependent wife and three dependent children from 28 March 2013 to date and continuing under s 37 of the Workers Compensation Act 1987 (the 1987 Act), as in force prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012.” 2. The applicant worker’s entitlement to weekly compensation for the period from 28 December 2012 to 27 March 2013 is remitted to another Arbitrator for re-determination. 3. Paragraph 3 of the Arbitrator’s amended determination of 4 June 2014 is confirmed. 4. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST. 5. Costs of the second arbitration are to follow the outcome of that arbitration.

INTRODUCTION

This appeal concerns an Arbitrator’s findings in respect of an award for weekly compensation for total incapacity under s 37 of the Workers Compensation Act 1987 (the 1987 Act), as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act).
The amendments introduced by the 2012 amending Act do not apply to the worker because he was an “existing recipient” of weekly compensation immediately before 1 October 2012 and, as no work capacity assessment has been conducted (see cl 9 of Pt 19H of Sch 6 to the 1987 Act), the worker remains entitled to compensation under Div 2 of Pt 3 of the 1987 Act “as if the weekly payments amendments had not been made” (cl 6 of Pt 19H). Therefore, all references in this decision to the 1987 Act are to the terms of that Act as they stood prior to the amendments introduced by the 2012 amending Act.

BACKGROUND

The respondent worker, Bradley Victory, started work for the appellant, Camden Council (the Council), in 1992 as a garbage collector/truck driver. At that time, he was 17 years old. From the age of 14, when he left school, to the time he started with the Council, Mr Victory had worked as a stable hand. He stopped work as a stable hand after he was trampled by a horse and suffered fractured ribs and had to have a kidney removed.
While working for the Council, Mr Victory suffered a serious injury to his right dominant hand on 19 September 1997 when it was crushed between a garbage bin and a truck. After a period off work, he returned to the Council on a return to work program, but never regained full confidence and use of his right hand.
On 25 May 1998, Mr Victory again injured his right hand at work with the Council when it was crushed by a wheelie bin. Whether he had time off work is not recorded in the evidence.
On 20 July 1999, because of his injuries, Mr Victory had an arthrodesis of the third carpometacarpal joint of his right hand. Following this operation, Mr Victory was unable to move his hand.
On 9 October 2000, Mr Victory settled a claim for lump sum compensation in the former Compensation Court of NSW for a sum representing a 50 per cent permanent impairment of his right hand. It is assumed that Mr Victory was already in receipt of voluntary payments of weekly compensation at that or about that stage. Those payments continued until the end of 2012.
In April 2001, the Council assigned Mr Victory to picking up dog faeces waste bins in parks and did not allow him to drive any trucks.
On 1 October 2001, Mr Victory resigned from his employment with the Council to obtain a better position. The exact circumstances of his ceasing work for the Council have not been fully explained in the evidence. Mr Victory’s evidence, which the Arbitrator accepted, was that a rehabilitation person had told him that “they [the Council] want you out”.
In November 2001, Mr Victory obtained work with Staple Brothers Pty Ltd, either driving a street sweeper or working on a one-man garbage truck picking up 1,000 bins per day. Mr Victory gave evidence that he did this job for 18 months but struggled to do the work “essentially one handed”.
On 4 June 2002 and 9 July 2002, Mr Victory received nerve block treatment for his hand, but with little benefit. These were performed for presumed complex regional pain syndrome suffered by Mr Victory in his right hand (CRPS Type 1).
On 1 August 2003, Mr Victory started work with Wingecarribee Shire Council as a traffic director. As Wingecarribee Shire Council tried to alter his duties to something beyond his physical capabilities, Mr Victory’s employment ceased on a date not disclosed in the evidence. The PAYG Payment Summary issued by Wingecarribee Shire Council for the financial year ending 30 June 2004 states that Mr Victory earned a total of $2,844 with them, which suggests a brief period of employment with that Council.
Sometime in 2003, it being apparent to Mr Victory that his physical disabilities would inhibit him from finding work, and that self-employment was the only suitable option for him, he started a truck driving business in partnership with his wife.
In December 2003, Mr Victory underwent a revision of the previous arthrodesis of the third carpometacarpal joint of his right hand.
In or about 2004 or 2005, it seems that Mr Victory formed a company, Tip Anywhere Transport Pty Ltd, in which he and his wife were directors. Whether this company employed Mr Victory, as has been suggested in the Council’s chronology, is unclear but nothing turns on this.
On 29 October 2012, an Approved Medical Specialist, Dr Middleton, assessed Mr Victory. In his Medical Assessment Certificate dated 1 November 2012, Dr Middleton assessed Mr Victory to have, as a result of the 1997 injury with the Council, a 50 per cent loss of use of the right arm at or above the elbow. He said that, in general, Mr Victory’s presentation was consistent with the end result of a CRPS Type 1.
On 15 November 2012, the Council’s insurer, QBE Workers Compensation (NSW) Ltd, issued a s 54 notice in which it gave notice that it would be reducing Mr Victory’s weekly compensation to nil on and from 28 December 2012. The ground for the notice was that, based on a vocational capacity assessment dated 6 July 2006, Mr Victory’s ability to earn as a truck driver exceeded his probable earnings with the Council but for his injury.
At a time not disclosed in the evidence, Mr Victory’s truck driving business changed from carrying gravel to carrying fertilisers and grains.
On 18 December 2012, Mr Victory filed an Application to Resolve a Dispute (the Application) in the Commission in which he sought weekly compensation from 28 December 2012 to date and continuing.
On 26 March 2013, Mr Victory’s general practitioner, Dr Arnaudon, issued a WorkCover medical certificate certifying Mr Victory unfit for work from that date until 26 June 2013 because of “asthma caused by his work exposure”. (This certificate has to be read with a report prepared by Dr Arnaudon on 8 September 2013, discussed at [51] below, in which he gave detailed reasons for stating that Mr Victory was totally unfit because of his hand injury.)
On 28 March 2013, Mr Victory ceased work in his business, stating that his condition had deteriorated significantly and that the work was “too overwhelming” for him to continue. He added that, in his truck driving business, he had only ever managed to make, at most, about $200 per week.
At the arbitration, at which Mr Victory gave oral evidence and was cross-examined, the solicitor for the Council, Michael Moore, argued, among other things, that Mr Victory had no entitlement to weekly compensation because he had continued working with the Council, which demonstrated an ability to earn that was unaffected by his injury, and because he stopped work in his business because of his asthma, which was a supervening incapacity for which the Council was not liable.
In a reserved decision delivered on 4 June 2014, the Arbitrator rejected the above arguments and found Mr Victory to be totally unfit for work from 28 December 2012 to date and continuing. He made an award at the statutory rate for a worker with a dependent wife and three dependent children under s 37, as it stood prior to the amendments introduced by the 2012 amending Act.
Consistent with the Arbitrator’s decision, the Commission issued an Amended Certificate of Determination on 4 June 2014 in the following terms:
“The determination of the Commission in this matter is as follows:
1. I am satisfied that the applicant is entitled to an award pursuant to s.37 on the basis of the applicant’s total incapacity and that his wife and three children are dependent upon him from 28 December 2012 to date and continuing.
2. In view of some apparent urgency in the matter I direct the parties to file an agreed Schedule of compensation payable pursuant to these findings by 11 June 2014.
3. The respondent will pay the applicant’s costs as agreed or assessed. I certify the matter as complex and order an uplift of 10 percent applicable to both parties. Such complexity involved in the matter is apparent, hopefully, from the above reasons which involved a long history of incapacity and a number of controversial issues that required preparation and analysis to an extent that introduced a degree of complexity.
Short reasons as to complexity
Such complexity involved in the matter is apparent, hopefully, from the above reasons which involved a long history of incapacity and a number of controversial issues that required preparation and analysis to an extent that introduced a degree of complexity.”
The Council has appealed the Arbitrator’s finding of total incapacity.

ON THE PAPERS

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 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     finding Mr Victory to be totally incapacitated for work when there was no evidence of total incapacity;
(b)     finding Mr Victory to be totally incapacitated for work when such a finding was against the weight of the evidence;
(c)     finding Mr Victory to be totally incapacitated when such finding was inconsistent with the Arbitrator’s other findings;
(d)     considering irrelevant material, namely, that Mr Victory required weekly compensation benefits to run his business;
(e)     failing to provide reasons, and
(f)      identifying the relevant legal test to be applied but failing to apply that test.

SUBMISSIONS

In non-compliance with Practice Direction No 6, the Council’s solicitor, on appeal, John Turner, has not addressed submissions to the alleged grounds of appeal, but has merely made general submissions on various random issues. That was unsatisfactory. The legal profession is reminded, yet again, that parties are expected to comply with Practice Direction No 6 when preparing s 352 appeals. That requires that the grounds of appeal be properly identified and that the submissions in support address each ground.
Mr Turner contended that:
(a)     at the time the award for total incapacity commences, that is, 28 December 2012, Mr Victory was working in his own business and the finding of total incapacity from that date is therefore inconsistent with the evidence;
(b)     the fact that Mr Victory may not have received sufficient income to meet his expenses between 28 December 2012 and 28 March 2013 is not the test for determining incapacity;
(c)     the Arbitrator accepted (at [61]) that Mr Victory was unable to keep working in March 2013 as a result of his work exposure to asthma. The development or exacerbation of asthma in the course of Mr Victory’s employment as a truck driver, after ceasing work with the Council, was unrelated to the injury to his right hand and the Council is not liable for any incapacity arising from the asthma. The asthma condition is a supervening incapacity unrelated to Mr Victory’s employment with the Council;
(d)     after identifying (at [70]) the method to be adopted to assess the worth of Mr Victory’s labour, the Arbitrator failed to apply that method and failed to assess Mr Victory’s capacity to earn. The Earning Capacity Assessment report prepared on 22 November 2011 by Dr Mitchell and Marijeta Adamic (the ECA report) assessed the earnings of a truck driver at $1,111 per week. Mr Victory’s probable earnings with the Council but for his injury were agreed at $1,028 per week. Therefore, applying the method of assessment identified by the Arbitrator at [70], he should have found a nil loss of earning capacity;
(e)     the Arbitrator’s statement (at [71]), that he was satisfied that Mr Victory had established a prima facie case that he was unable to run his business without the assistance of his weekly compensation payments, was irrelevant to the assessment of his post injury earning capacity;
(f)      any emotional and/or physical breakdown, as identified by the Arbitrator at [79], and any incapacity arising there from is not the liability of the Council and represents a supervening incapacity;
(g)     there is no medical evidence supporting the Arbitrator’s finding that Mr Victory suffered an “emotional … breakdown” and the Arbitrator made no findings as to the duration of this “emotional physical breakdown” and the incapacity, and
(h)     the Arbitrator accepted (at [79]) that Mr Victory had a complete emotional and physical breakdown and that it was probable that his inability to keep up payments (on his truck) of $8,000 per month led to the breakdown. Any emotional and/or physical breakdown as identified by the Arbitrator, and incapacity arising therefrom, is not the liability of the Council and represents a supervening incapacity.
Counsel for Mr Victory, Mr Callaway, accepted that as Mr Victory was working in the period from 28 December 2012 to 28 March 2013, it was not open to find that he was totally unfit in that period. He submitted that the correct award in that period should be for the maximum statutory rate under s 40 (as it stood prior to the amendments introduced by the 2012 amending Act) for a worker with a dependent wife and three dependent children. Mr Callaway submitted that the Arbitrator’s other findings were open to him on the evidence and disclosed no error.
Mr Turner made no submissions in reply.

DISCUSSION AND FINDINGS

As different principles apply to the calculation of weekly compensation depending on whether a worker is employed (or self-employed) compared to when the worker is not employed, it is convenient to deal with the parties’ submissions under the following headings: “period from 28 December 2012 to 28 March 2013 (the first period)”, “relevance of Mr Victory’s asthma”, “relevance of Mr Victory’s emotional and/or physical breakdown”, “total incapacity”, and “reasons”.

Period from 28 December 2012 to 28 March 2013 (the first period)

It is conceded that, because Mr Victory was working in the period from 28 December to 28 March 2013, the Arbitrator erred in making an award for total incapacity for that period. Mr Victory’s entitlement to weekly compensation in that period had to be assessed under s 40.
However, Mr Callaway has submitted that the Arbitrator’s finding that Mr Victory was reliant on his weekly payments of compensation “to keep his head above water” ([71]) was available on the evidence and was consistent with a finding of nil earnings in the first period. He argued that that finding was available, but it was available by applying the “first method” identified in Office of the Director of Public Prosecutions v Olsen [2009] NSWWCCPD 26 (Olsen) for calculating actual earnings of self-employed workers, not the third method, which the Arbitrator purported to apply. He contended that, by applying the first method, the result is the same, but the award is at the maximum statutory rate under s 40, not s 37.
The “first method” referred to in Olsen requires a determination of the net remuneration being received by the worker for his or her labour. This is done by examining the business accounts and making all proper allowances for overheads, costs of materials and other labour, maintenance and depreciation of plant, return on capital invested and the like (Glass JA (Reynolds JA agreeing) at 230G in Cage Developments Pty Ltd v Schubert (1981) 2 NSWLR 227, citing Gibbs J at 652 and Windeyer J at 643 in J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625).
The method the Arbitrator purported to use was to determine what Mr Victory’s labour would have been worth if he had been employed by another to do the work (he was doing in his own business). However, while the Arbitrator thought this was the appropriate test, as Mr Turner submitted, he failed to apply it in determining Mr Victory’s earnings in the first period. Instead, he merely said that he accepted Mr Victory’s evidence that he was reliant upon his workers compensation payments to “keep his head above water” and that he was unable to run his business without the assistance of those payments. That is not the test for determining actual earnings under s 40(2)(b) and was an erroneous approach to the calculation of Mr Victory’s actual earnings in the first period.
It follows that the Arbitrator did not properly determine Mr Victory’s actual earnings in the first period and that part of the claim must be re-determined. As neither side referred to the business accounts, or made any useful submission as to the calculation of Mr Victory’s actual earnings in the first period, this part of the claim will be remitted to a different Arbitrator for re-determination.
I have not overlooked Mr Turner’s submission that Mr Victory’s earnings should be assessed at the rate applicable for a truck driver, namely, $1,111 per week. Given Mr Victory’s evidence that he only earned about $200 per week from his business, it is difficult to see that that amount properly reflects Mr Victory’s actual earnings between 28 December 2012 and 28 March 2013. However, noting that there are several different approaches available to determine actual earnings of a self-employed worker, the method to be adopted will be a matter for the next Arbitrator, after receiving appropriate submissions.

Relevance of Mr Victory’s asthma

Mr Turner’s submission that Mr Victory was unable to keep working in March 2013 as a result of his asthma, which was unrelated to his injuries with the Council, is irrelevant to Mr Victory’s entitlement to compensation beyond 28 March 2013.
An employer’s liability does not cease because of supervening incapacity as a result of external non-work related events (McCann v Scottish Co-op Laundry Association Ltd [1936] 1 All ER 475; Salisbury v Australian Iron & Steel Ltd [1943] WCR 97 and Doudie v Kinneil, Cannell & Coking Coal Co Ltd [1947] AC 377).
The position is well summarised by C P Mills in Workers Compensation (New South Wales), 1979, second edition, at 244:
“The question in every such case is whether, had there been no supervening non-employment event, the worker would, at the date in question be incapacitated by the effects of the employment injury operating as a sole or contributing cause of the incapacity.”
This issue was also considered in Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 at 55 where McHugh JA (as his Honour then was) stated, when considering the Workers Compensation Act 1926 (the 1926 Act):
“The right to compensation for incapacity is given by section 9 [see ss 9, 33 and 36 of the 1987 Act] and not by section 11. Retirement or intention to retire are not relevant to section 9, which is only concerned with total or partial incapacity for work resulting from injury, nor are they relevant to the first two steps in section 11(1).”
The right to compensation under the 1987 Act (prior to the amendments introduced by the 2012 amending Act) still arises under s 9, but Division 2 of that Act governs the quantification of weekly compensation. Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, compensation payable shall include weekly compensation. Compensation for total incapacity is determined by the application of ss 34 to 37 inclusive.
As with s 9 of the 1926 Act, provided it is established that the claimed incapacity has resulted from the work injury (Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120), retirement, or other supervening events, such as Mr Victory’s asthma, are not relevant to determining entitlement to compensation for total incapacity. They are, however, most relevant to the exercise of the discretion under s 40 (s 11(1) of the 1926 Act), as is well illustrated in Hirst v Illawarra Area Health Service (2000) 21 NSWCCR 82 and other authorities such as Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; 23 NSWCCR 463.
It is irrelevant whether Mr Victory suffered from asthma in March 2013 or whether it played a part in him stopping work in his business. The critical question was whether, when he stopped work on 28 March 2013, he was incapacitated as a result of his work injury. Given the serious injury suffered by Mr Victory, the answer to that question is clearly yes. Once that is accepted, as it must be, the next question is his ability to earn beyond 28 March 2013 in the labour market reasonably accessible to him. The Arbitrator determined that, as a result of his work injuries with the Council, Mr Victory had no ability to earn. Whether he was correct to do so is discussed below.

Relevance of Mr Victory’s emotional and/or physical breakdown

The submission that the Council has no liability for any emotional and/or physical breakdown identified by the Arbitrator at [79] is also misguided. The Arbitrator said, at [79]:
“With regard to the period between 28 December 2012 and the subsequent sale of [Mr Victory’s] truck on 28 March 2013, I am satisfied that [Mr Victory] was unable to earn any income. [Mr Victory], according to his evidence (which I accept), had a complete emotional and physical breakdown. He had repayments running at $8000 per month, and it is probable that his inability to keep these payments up eventually led to his breakdown. I infer that, during the period, if he did receive some income, it was not sufficient to pay his expenses properly related to his ability to earn.” (emphasis added)
The emphasised words above make it clear that this statement dealt only with the first period. Mr Turner has not explained the relevance of the Arbitrator’s statement to the period beyond March 2013. It is correct, as Mr Turner submitted, that the Arbitrator made no findings as to the duration of the emotional/physical breakdown. He did not have to. That is because, with respect to the period beyond 28 March 2013, he did not base his finding of total incapacity on the emotional/physical breakdown (or the asthma). Instead, he relied on the matters identified at [50] below.
The Arbitrator’s reference to the emotional and/or physical breakdown was only in the context of considering why Mr Victory ceased to operate his business. It follows that the reference to the emotional and/or physical breakdown was of limited, if any, relevance to the assessment of the claim beyond 28 March 2013.

Total incapacity

The Arbitrator found Mr Victory to be totally incapacitated from 28 March 2013, because:
(a)     Mr Victory was “essentially … a one armed potential employee” ([72]);
(b)     he accepted the evidence from Dr Patrick, orthopaedic surgeon qualified by Mr Victory, that the condition of Mr Victory’s hand had “deteriorated to now include the wrist and the arm as a result of the onset of a CRPS 1 condition” ([72]);
(c)     Mr Victory had always worked as a labourer and had little education, having left school at 14 and worked in labouring employment since ([73]);
(d)     Mr Victory has no qualifications that would enable him to be fit for clerical type duties and, “to all intents and purposes he is at a very severe disadvantage on the open labour market from finding the sort of work that he would be able to do such as truck driving” ([73]);
(e)     Mr Victory’s efforts to find work, prior to starting his own business, were “unsuccessful because of the injuries to his hand” ([75]) and those efforts spoke to Mr Victory’s “determination and commendable initiative in attempting to find suitable employment” ([75]);
(f)      being self-employed entailed Mr Victory finding $463,000 for a fully automatic truck. However, he was unable to run that business without the assistance of the weekly compensation he received ([76]);
(g)     Mr Victory lost the use of his dominant right hand and has had to make do principally using his left hand, which in turn required him to use a fully automatic vehicle ([76]), and
(h)     the work options identified by Dr Mitchell (in the ECA report) were “somewhat unrealistic” ([77]). The Arbitrator was not satisfied that Mr Victory could be a delivery driver because of the necessity to lift and carry goods. As to the chances of a virtually one armed driver obtaining employment in the open labour market, the Arbitrator had severe reservations as to whether that was a realistic option, either as a tipper truck driver or as a passenger coach driver.
The evidence comfortably supports the above findings. In particular, the finding of total incapacity is supported by the evidence from Dr Arnaudon in his report of 8 September 2013, which the Arbitrator accepted, in which he said:
“[Mr Victory] had pain and swelling and difficulty in using the right hand and right wrist but was eventually able to return to selected duties with the Council. He had treatment for his regional pain syndrome but he did not get a complete cure. He always had symptoms in the wrist from the time of his injury to the present day. He had a lot of difficulty with his job and eventually decided to be self employed so he could regulate the way in which he performed his work. Unfortunately, he had to cease that work early this year, due to his previous right wrist and hand injury.
The diagnosis is soft tissue injury to the right wrist and forearm and Regional pain syndrome affecting the same part of the body.
I accept that his condition has deteriorated and he has had to cease work.
In my view he is totally incapacitated for work.
In my view his incapacity is causally related to his injuries of 19^th Sept 1997 and 25^th May 1998.
I agree that Mr Victory can no longer perform work as a truck driver.”
Dr Patrick’s evidence, which the Arbitrator set out at [39] and [40], was that there was genuine stiffness in Mr Victory’s right shoulder and right wrist, he having developed a CRPS 1 condition, or, as the doctor termed it, a “shoulder/hand syndrome”. Though any allodynia/sensory changes appeared to have settled well, Mr Victory was left with a residual stiffness and some degree of atrophy in the right hand.
Dr Patrick concluded that Mr Victory was left with a diminished grip strength, restricted range of movement, and some weakness of the right upper extremity. In Dr Patrick’s opinion, Mr Victory was not fit for work involving heavy use of both arms, or significant use of the right arm outstretched or overhead or sustained gripping/grasping using the right hand. He thought, as did the Arbitrator, that Mr Victory was a genuine and well-motivated man.
The finding of total incapacity is also consistent with Mr Victory’s evidence, which the Arbitrator accepted, that:
“Following my weekly payments being reduced from 28 December 2012, due to financial necessity, I put all my effort into trying to maintain my truck driving work. Despite my best efforts, I confirm that on 28 March 2013 I had no option but to cease self employment in truck driving due to my worsening condition. I confirm that over the years I had managed to complete the work one-handed, using my left hand. However, the pain and discomfort in my right hand has progressed over the years to where I have been certified totally unfit for work.”
When considered with the principles discussed in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206, which states that the assessment of a worker’s ability to earn is a practical exercise having regard to the realities of the accessible labour market, the Arbitrator’s conclusion that, from 28 March 2013 to date and continuing, Mr Victory was totally unfit for work was open to him and disclosed no error.
Mr Turner’s reliance on the ECA report does not establish error by the Arbitrator. The Arbitrator carefully considered that report and, for reasons stated, did not accept the conclusions expressed in it. In particular, he did not accept the assertion that Mr Victory was fit to work in the open labour market as a truck driver. The Arbitrator acknowledged that Mr Victory had been self-employed driving a truck for 10 years, but noted that that work “entailed him finding $463,000 for a fully automatic truck” ([76]).
Moreover, the Arbitrator was satisfied that Mr Victory was unable to run his business without the assistance of his weekly compensation payments. This was relevant to the issue of Mr Victory’s general ability to work as a truck driver in the open labour market, which is a different test to determining actual earnings while working, the latter having been discussed at [35]–[38] above.
I accept that whether Mr Victory was able to run his business without the assistance of his weekly compensation payments is not, on its own, the test for incapacity. However, the Arbitrator did not approach Mr Victory’s incapacity on the open labour market by reference solely to that matter and his statement has to be considered in the context of the case overall.
That context was that the Council had argued that Mr Victory had no incapacity, because he was fit to drive trucks, as he had in a self-employed capacity for 10 years. The Arbitrator was required to consider whether Mr Victory was fit to work as a truck driver in the general labour market. In this context, it was relevant for him to consider the circumstances in which Mr Victory conducted his truck driving business and to note that, in that business, Mr Victory operated a fully automatic vehicle and that he was only able to maintain the business with the assistance of the compensation he received. In other words, the work as a truck driver in the business was an “artificial expectation” ([76]) of Mr Victory’s ability to earn in the open labour market. That finding, considered in its proper context, was open on the evidence and disclosed no error.
It follows that the submission that Mr Victory is able to earn $1,111 per week as a truck driver and, because comparable earnings with the Council are only $1,028, he has no entitlement to weekly compensation is unsustainable. It is based on the false premise that, in the labour market accessible to him, Mr Victory is able to work full-time as a truck driver. For reasons stated, the Arbitrator did not accept that premise.

Reasons

Though failure to provide reasons has been identified as a ground of appeal, Mr Turner made no submissions in support of this ground.
Leaving aside the period from 28 December 2012 to 28 March 2013, which must be re-determined in any event, the Arbitrator exposed his reasoning on the critical issue in dispute, namely, Mr Victory’s work capacity beyond 28 March 2013, and articulated the essential grounds on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). Those grounds were based on his acceptance of Mr Victory’s evidence and the evidence from Drs Patrick and Arnaudon, which evidence was strongly supportive of the finding of total incapacity.
In respect of the Arbitrator’s acceptance of Mr Victory’s evidence, I note that the Arbitrator had the opportunity to hear and see Mr Victory give evidence and that he found him to be a witness of credit ([50]). Consistent with this finding, the Arbitrator said (at [53]) that he was satisfied that Mr Victory was a well-motivated man unlikely to cease work unless the condition of his hand compelled him to do so. This finding was consistent with the evidence and disclosed no error.
The alleged failure to give reasons ground is rejected.

CONCLUSION

The Council has succeeded in its challenge to the first period of incapacity and that part of the claim must be re-determined before a different Arbitrator. However, it has failed on all of its other “grounds” and the award from 28 March 2013 to date and continuing is confirmed.

DECISION

Paragraphs 1 and 2 of the Arbitrator’s amended determination of 4 June 2014 are revoked and the following order is made in their place:
“1. The respondent employer is to pay to the applicant worker weekly compensation at the appropriate statutory rate for a worker with a dependent wife and three dependent children from 28 March 2013 to date and continuing under s 37 of the Workers Compensation Act 1987 (the 1987 Act), as in force prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012.”
The applicant worker’s entitlement to weekly compensation for the period from 28 December 2012 to 27 March 2013 is remitted to another Arbitrator for re-determination.
Paragraph 3 of the Arbitrator’s amended determination of 4 June 2014 is confirmed.

COSTS

As the appeal has had limited success with respect to a discrete three month period, but was unsuccessful on all other issues argued, the appropriate order is that the appellant Council pay Mr Victory’s costs of the appeal, which I assess at $2,530 plus GST.
Costs of the second arbitration are to follow the outcome of that arbitration.

Bill Roche

Deputy President

15 September 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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