Cargill Australia Limited v Hardwick
[2009] NSWWCCPD 83
•20 July 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Cargill Australia Limited v Hardwick [2009] NSWWCCPD 83 | ||||
| APPELLANT: | Cargill Australia Limited | ||||
| RESPONDENT: | Shane Hardwick | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-9782/08 | ||||
| ARBITRATOR: | Mr G Adelstein | ||||
| DATE OF ARBITRATOR’S DECISION: | 6 April 2009 | ||||
| DATE OF APPEAL DECISION: | 20 July 2009 | ||||
| SUBJECT MATTER OF DECISION: | Sufficiency of reasons; section 40 Workers Compensation Act 1987. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| REPRESENTATION: | Appellant: | Walkom Lawyers | |||
| Respondent: | Leitch Hasson & Dent | ||||
| ORDERS MADE ON APPEAL: | Paragraph one of the Arbitrator’s decision dated 6 April 2009 is revoked and the following order is made in its place: “1. Award for the applicant is at the rate of $336.00 per week from 15 July 2008 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.” | ||||
| Paragraphs two and three are confirmed. | |||||
| The appellant employer is to pay the respondent worker’s costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 4 May 2009 Cargill Australia Limited (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 April 2009.
The respondent to the Appeal is Shane Hardwick (‘the worker’).
The worker, who is 49 years of age, commenced employment with the appellant as a labourer on 29 August 2005. He was employed at the appellant’s meat processing plant situated at Wagga Wagga NSW.
On 25 August 2006 the worker received a crush injury to his dominant right hand when he reached into an apparatus known as a “pre-breaker” which had become jammed. His wrist and hand region were crushed between portions of the beasts which were being processed. The worker’s right hand became swollen and treatment was immediately provided at the appellant’s clinic.
The worker made a claim for worker’s compensation benefits and liability was accepted by the appellant’s insurer. The worker was unable to perform duties for a short period however was soon placed on lighter duties which he continued to perform until his resignation from the employ of the appellant on 14 July 2008. At the time of his resignation the worker had been certified by Dr John Paget, his general practitioner, as being fit for permanently modified duties. The restrictions specified were as follows:
“The worker has the following capabilities for 10 hrs/day 4 days/week
lifting up to 7kg in RT hand.”
The worker has not been employed since the date of his resignation and a dispute has arisen concerning a claim made for continuing weekly benefits. An ‘Application to Resolve a Dispute’ (‘Application’) was filed on his behalf with the Commission on 5 December 2008.
The worker’s Application was listed for conciliation/arbitration before an arbitrator on 26 March 2009. A determination of that claim was made by the Arbitrator on 6 April 2009.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 6 April 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1.I order that the Respondent pay the Applicant weekly benefits under Section 40 of the 1987 Act as and from 15 July 2008 to date and continuing at the rate of $386.00 gross per week.
2.I order that the Respondent pay the Applicant's costs to be assessed, if not agreed.
3.An application was made by Mr Marsh which was not opposed by Mr Walkom that in the circumstances of this matter an uplift as a complex matter is appropriate. I agree and find a 20% uplift is applicable for both the Applicant and Respondent.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in the following respects:
(a) failing to provide adequate reasons for his finding that the worker’s ability to earn post-injury is $350.00 per week;
(b) in determining that the worker’s post-injury ability to earn was $350.00 per week;
(c) in respect of those findings of fact concerning the reasonableness of use by the worker of protective bandaging and splintage;
(d) in awarding the worker the mathematical difference between his probable earnings but for injury and his post-injury ability to earn, and
(e) in failing to give adequate reasons as to the worker’s “voluntary retirement” being a consequence of the relentless nature of his work.
The summary of the issues as set forth above are derived from the “grounds” of appeal as stated by the appellant in written submissions which accompany the application for leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
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.
The amount of compensation at issue on the appeal exceeds the thresholds provided by section 352(2) of the 1998 Act, which must be met before a grant of leave to appeal is made by the Commission.
The requirements of section 352(2) and (4) of the 1998 Act having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the appellant to appeal to the Commission.
THE EVIDENCE
The Statement of Reasons (‘Reasons’) which accompanied the Certificate of Determination does not contain a convenient summary of the evidence that was before the Arbitrator. There is before the Commission a transcript of the proceedings (‘transcript’) taken from a recording made of the hearing which occurred on 26 March 2009. Each of the parties were represented on that occasion and it is clear from exchanges between the Arbitrator and the legal representatives that the following material was in evidence:
(i)the Application to Resolve a Dispute filed on 5 December 2008 together with all that material described in Part 6 of that document;
(ii)oral evidence was given by the worker at the hearing at which time he was questioned by the Arbitrator followed by questioning by each of the representatives. That evidence is recorded between pages 23 and 46 of transcript;
(iii)the Reply filed on behalf of the appellant together with those documents referred to in Part 6 of that document. Those documents included a factual investigation report compiled by Brooksight Investigations dated 5 December 2008. That report included copies of statements by five fellow employees of the appellant company. It appears from the transcript (at page 19) that certain portions of some of those statements were excluded from the evidence by the Arbitrator. There is no plain statement as to which portions were the subject of the Arbitrator’s ruling;
(iv)a report of Dr Ross Whittaker, consultant rheumatologist dated 16 February 2009 was tendered in evidence by the appellant at the hearing;
(v)a document described as “vocational assessment report” of Lucinda Terrey dated 17 February 2009 was tendered in evidence by the appellant;
(vi)the clinical notes of Dr John Pagett were tendered in evidence by the appellant;
(vii)it is to be noted that a document headed “Statement of Agreed Facts” was handed to the Arbitrator by the parties during the course of the hearing. That document included eleven enumerated agreed facts and listed three “issues in dispute”. That document remains with the Commission’s papers and recorded the following matters:
“STATEMENT OF AGREED FACTS
1.The Applicant is 48 years old.
2.The Applicant has a de facto wife.
3.The Applicant has no dependants.
4.The Applicant is right hand dominant.
5.The Applicant was employed by the Respondent at its meat processing plant at Wagga Wagga on 29 August 2005 as a labourer.
6.On 26 August 2006 the Applicant suffered a crush injury to his right hand after it was alleged to be (sic) caught between waste in the shute leading into the pre-breaker machine.
7.Following his injury the Applicant continued to work his normal hours on restricted duties.
8.On 14 February 2008 the Applicant was issued a final medical certificate by his treating general practitioner, Dr John Pagett, certifying the Applicant as fit to work 10 hours per day for 4 days per week with only one restriction being that he not lift more than 7 kgs with his right hand.
9.The Respondent [sic, Applicant] worked for the Respondent until 14 July 2008 when he resigned his employment.
10.The Applicant has [sic, had] no loss of earnings prior to the time of his resignation.
11.The earnings of comparable workers employed by the Respondent since 14 July 2008 have been $736.00 per week.
ISSUES IN DISPUTE
1.The extent of any incapacity the Applicant may have for work?
2.Whether the Applicant has an entitlement pursuant to sections 36, 37, 38 or 40 of the 1987 Act for loss of earnings, and is [sic] so, the extent of any entitlement?
3.Whether the worker unreasonably rejected an offer of suitable employment pursuant to section 40 of the 1987 Act, and if so, the effect this may have on any entitlement to weekly compensation?”
It is to be noted that item 3 under the heading “Issues in Dispute” which appears to raise issues relevant to the operation of section 40(2A) of the Workers Compensation Act 1987 (‘the 1987 Act’) was not argued before the Arbitrator and no reference is made to the inclusion of that matter in the course of submissions put on this appeal.
The worker relied upon his statement made 21 November 2008 which was attached to his Application. That statement includes a description of the manner in which he was injured and it is said that after his claim for compensation benefits was accepted he was placed on suitable duties at his workplace. That statement records that on 14 February 2008 the worker was given a “final” WorkCover medical certificate which certified that he was fit for work ten hours a day, four days a week subject to the restriction of “no lifting above 7 kgs” with his right hand. The worker further states that he was put to work in the boning room working on a conveyor belt removing bones from that belt. The worker further states:
“The suitable duties I was provided with do not correspond with the restrictions on my certificate whilst most of the lifting I was required to do was less than 7 kgs, it was common to have pieces of meat that weighed over 7 kgs that I had to lift with my right arm. I would repeatedly have to do this and my hand would get into a lot of pain. My hand would also swell up.”
The worker further states that he “reported [his] concerns at work in March 2008.” The worker remained and continued working with “sympathetic colleagues” on the conveyor belt. It is stated:
“….we would frequently swap places or allow me to take a breather when things were getting a bit excessive.”
The worker’s statement concludes with the following paragraph:
“Despite the help of sympathetic colleagues it was becoming increasingly difficult to do my job. In July 2008, I could not go any further working outside of the restrictions on my medical certificate. I left my employment with Cargill Foods. I have been unemployed ever since, however I am looking for work that does fall within the requirements of my WorkCover medical certificate.”
A number of WorkCover NSW medical certificates were attached to the Application including one dated 14 February 2008 issued by Dr John Pagett which certifies as to the restriction noted above. That certificate includes the following notation, “The worker has reached maximum medical improvement and is fit for permanently modified duties from 14 Feb 2008 (final certificate only).”
Attached to the worker’s Application was a report from Dr John E.C. Bentivoglio, orthopaedic surgeon dated 25 March 2008. Dr Bentivoglio was qualified by the worker’s solicitor to provide a report for the purposes of this litigation. Under the heading “Clinical Examination” that practitioner made the following observations:
“This gentleman had many signs consistent with a diagnosis of chronic regional pain syndrome involving his right hand. This included swelling over the dorsum of his hand going into his fingers and altered colouring of the dorsum of his hand. The dorsum of his right hand was cooler than that of his left.”
Dr Bentivoglio made the statement in his report that there were no recent x-ray or bone scan findings to substantiate the diagnosis of chronic regional pain syndrome. It was that practitioner’s view that the worker had “reached maximum medical improvement”. It was also stated that the worker needed to avoid activities requiring excessive use of his right upper limb. Concerning the worker’s capacity to perform work duties Dr Bentivoglio stated:
“Mr Hardwick has only ever done labouring type work activities, and as such I believe with the amount of ongoing disability he has in his right (dominant) hand he would have enough disability to prevent him from returning to the workforce in any form of employment for which he was suited by means of education, training or experience.”
It is recorded at page 22 of the transcript that the worker had moved residence from Lemon Tree Passage to an unspecified address in Medowie. That relocation occurred a number of days before the date of the hearing.
The worker during the course of giving oral evidence described the nature of the duties which he was required to perform with the appellant after his injury and, in particular, following his presentation of the medical certificate dated 14 February 2008 referred at [22] above. That evidence is where relevant, referred to below.
The worker, during cross-examination by the appellant’s solicitor Mr Walcom, confirmed that his driver’s licence had been cancelled until the year 2012. The worker denied that at the time of his employment on 14 July 2008 it was his intention to move to the Cessnock area to take up employment as a prison guard at that town. The worker was further questioned concerning his efforts to obtain employment following his resignation.
The worker was cross-examined concerning employment opportunities and efforts made to obtain employment once he had moved to Lemon Tree Passage. The worker stated that he considered himself capable of doing “limited bar work” only if he had a “responsible service of alcohol certificate”. The worker confirmed that he felt he was capable of working as a sales assistant but he stated that such opportunity was subject to the willingness of an employer to engage him in his injured state. He further stated that he was “very much” interested in working as a youth worker, a subject which was discussed during the course of a vocational assessment of Lucinda Terrey, Rehabilitation Consultant. The worker described his pre-injury duties when employed as a prison officer and agreed that his experience in that field would assist him in his pursuit of work as a youth worker.
During the course of cross-examination the worker confirmed that he was wearing a bandage or brace at the time of post-injury work interviews. The worker again described his post-injury duties with the appellant at which time he denied that “4 kilos” was the maximum weight which he was required to handle.
The Arbitrator permitted the worker’s counsel, Mr Marsh, to put questions by way of re-examination. That evidence appears at pages 44 and 45 of the transcript. Detail of that evidence, where relevant, appears below.
Evidence relied upon by the appellant included a number of medical reports from the worker’s treating specialist Dr James Masson as well as a report from Dr Adrian Van Der Rijt, orthopaedic surgeon, who was qualified by the appellant’s insurer to provide a report in October 2006. That evidence also includes a number of reports from Ms Amy Geach, hand therapist, and an assessment report compiled by Fotoula Parras, psychologist dated 22 December 2006. A number of WorkCover medical certificates issued by Dr Aziz and Dr Pagett were also relied upon by the appellant. Reference, where relevant, is made to this material below.
The appellant relied upon an investigation report compiled by Brooksight Investigations dated 5 December 2008. That report contained copies of statements taken from Mr Chris Ward, the worker’s immediate supervisor in the “trim and sorting areas” of the appellant’s food production plant. That report also includes statements from four individuals who worked in that section with the worker. This is the material referred to in [17(iii)] above. Reference, where relevant, is made to that material below.
Reliance was placed by the appellant upon the content of the first aid records compiled at the work premises clinic concerning management of the worker’s hand disability. The appellant also tendered a large number of daily tasking sheets concerning duties allotted to the worker and his fellow workers in “trim sortation”.
The appellant also relied upon the clinical records of Dr John Pagett which had been produced to the Commission in response to a Direction for Production. A Vocational Assessment report dated 16 February 2009 compiled by Lucinda Terrey was relied upon by the appellant as was a report of Dr Ross Whittaker, consultant rheumatologist dated 16 February 2009. The content of these documents is, where relevant, referred to below.
SUBMISSIONS AND DISCUSSION
The submissions which accompany the appellant’s application concerning this appeal enumerate five separate grounds of appeal. The issues raised by those stated grounds are summarised at [9] above. It is proposed to deal with those grounds serially.
Ground (a) relied upon by the appellant is stated as follows:
“The Arbitrator failed to provide adequate reasons for his finding that $350.00 per week fairly represented the respondent’s residual capacity to earn in suitable employment.”
The appellant’s reference to the term “residual capacity to earn” undoubtedly is intended to denote the worker’s “ability to earn” as provided by section 40(2)(b) of the 1987 Act. That an arbitrator has a duty to provide reasons for his decision cannot be doubted and the appellant is correct to make reference to the Workers Compensation Commission Rules 2006 (‘Rules 2006’) concerning such obligation. The relevant Rule is to be read with the provision contained in section 294(2) of the 1998 Act. It is to be noted that the appellant has made reference to the superseded rules promulgated in 2003. The relevant rule, which is in similar form, is to be found in Rule 15.6 of the Rules 2006. An arbitrator has an obligation to give reasons for a decision and such reasons should be sufficient to enable a party to exercise his right of appeal. As was stated by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270:
“…the statement of reasons may be necessary to enable the party to exercise his right of appeal or such other rights as he may have to contest the decision; this is one of the conventional functions of the requirement.”
The appellant properly acknowledges (at [25] of submissions) that there is no requirement for the Arbitrator “to refer in detail to the evidence of each and every fact and issue, nor each and every step in the reasoning process.” That submission echoes the matters discussed by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443. His Honour there stated that, “Reasons need not necessarily be lengthy or elaborate”. It was further stated by His Honour that where there be a need to refer to relevant evidence “there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered”.
The appellant (at [21] of submissions) enumerates four matters which it is suggested the Arbitrator failed to refer to. It is clear that the appellant’s argument is that there was a need to refer to those matters which included the nature of restrictions on the worker’s activities caused by his injury, the nature of the work for which the worker was suited, a consideration of the provisions of section 43A(1) of the 1987 Act, the likely earnings of the worker in suitable work and relevant factors concerning the availability and retention of employment.
Failure to provide sufficient reasons for a decision constitutes an error of law. The appellant, in addition to arguing that such error of law has occurred, suggests under ground (b) that a factual error has been committed by the Arbitrator in his quantification of the worker’s ability to earn post-injury being $350.00 per week. There is, to an extent, an overlap of argument between grounds (a) and (b).
The appellant proceeds to summarise submission made on its behalf at the hearing (at [29]) which included an analysis of the available medical evidence. The appellant is correct to argue that the Arbitrator failed to “provide any evaluation of the medical evidence” and that the Arbitrator “failed to evaluate the evidence concerning the ‘worker’s’ ability to engage in employment”.
The manner in which the matter was conducted before the Arbitrator demonstrates that the appellant at no time disputed the existence of physical incapacity resulting from the subject injury. The real issue between the parties concerned the proper assessment of the worker’s post-injury ability to earn. In the course of submissions the appellant’s solicitor put to the Arbitrator (at transcript page 71) that an appropriate assessment of the worker’s ability to earn would be in the range between $450.00 and $500.00 per week. The appellant in submissions on this appeal correctly observes that the Arbitrator has misstated the appellant’s position concerning this matter of dispute (submissions at [34]).
Given the nature of the dispute between the parties and the manner in which the litigation was conducted before the Arbitrator I conclude that the appellant is correct in its complaint that the Arbitrator has failed to provide sufficient reasons for his decision concerning the worker’s post-injury ability to earn. In the circumstances the Arbitrator’s determination requires review. Such review of the facts and arguments raised will enable a determination as to whether the Arbitrator’s ultimate conclusion was true and correct.
Ground (b) relied upon by the appellant is expressed in the following form:
“The Arbitrator erred in finding that the respondent’s residual earning capacity was only $350.00 per week.”
The appellant’s submissions relating to this stated ground address the detail of the medical evidence which was before the Arbitrator as well as the content of the report of Ms Amy Geach. The appellant proceeds in those submissions to summarise submissions which were put before the Arbitrator. Attention is also given in those submissions to the provisions of section 43A(1) of the 1987 Act.
As stated above there is an overlap of matters to be considered on this appeal between the suggested error of law in failing to state sufficient reasons and the suggested error of fact concerning the quantification of the worker’s ability to earn post-injury. I have indicated at [43] above that there is a need for review. Such review necessarily requires an examination of the correctness or otherwise of the Arbitrator’s conclusion concerning the quantification of the worker’s post-injury ability to earn. This matter is addressed below.
Ground (c) as expressed by the appellant appears to be a challenge to the finding of fact made by the Arbitrator that the worker’s wearing of a protective bandage including a splint when attending job interviews was reasonable. That complaint does not constitute a ground upon which the Arbitrator’s determination may be challenged. It is more properly characterised as a challenge founded upon suggested factual error. The question as to whether such conduct was reasonable as well as a consideration as to the correctness or otherwise of the Arbitrator’s finding that wearing of the splint provided the worker “a measure of physical protection and psychological benefit” is addressed below during the course of the review of the evidence as a whole.
Ground (d) is expressed as follows:
“The Arbitrator erred in awarding the respondent, in the circumstances of the case, the amount that he found to be the mathematical difference between the respondent’s probable earnings and his ability to earn in suitable employment.”
It appears that the appellant’s complaint under this suggested ground of appeal is that the Arbitrator has erred in failing to exercise the discretion granted by the provisions of section 40 of the 1987 Act to reduce the appellant’s entitlement to weekly compensation to below that which is determined by calculating the mathematical difference between probable earnings and ability to earn.
The Arbitrator dealt with the question as to whether any variation to the mathematical difference was appropriate in exercise of his discretion at [28]-[31] of Reasons. It is proposed to examine the parties submissions concerning exercise of the discretion should that be necessary following a review of the facts concerning determination of the worker’s post-injury ability to earn.
With respect to ground (e) the appellant again makes complaint concerning a finding made by the Arbitrator. That finding relates to circumstances leading to the worker’s retirement from the appellant’s employ. Such complaint does not constitute a “ground” upon which the Arbitrator’s determination may be challenged however it appears that the complaint raised is an assertion of factual error on the part of the Arbitrator. The finding complained of is to be found at [24] of Reasons. The Arbitrator seems to have accepted the worker’s evidence concerning his work conditions, in particular the evidence of lifting weights exceeding seven kilograms and the use of both hands when under “pressure”. The matter complained of is the conclusion reached by the Arbitrator in accepting “that his voluntary retirement was a consequence of the relentless nature of the work.” This finding by the Arbitrator is to be considered in the course of review.
The worker has provided written submissions opposing the appeal. In summary it may be said that the worker seeks to support the finding made by the Arbitrator concerning his post-injury ability to work. With respect to the suggestion that insufficient reasons have been expressed by the Arbitrator the worker points to the Arbitrator’s Reasons in paragraphs [20]-[26] and argues that the “consideration” given the issue by the Arbitrator discloses no error. Reliance is placed by the worker upon the same line of argument in support of the Arbitrator’s quantification of his post-injury ability to earn.
The worker, with respect to ground (c), argues that, “…this is no ground of appeal at all.”. It is said that it is a matter of speculation as to whether the Arbitrator’s finding concerning the use by the worker of the bandage and splint “influenced the Arbitrator to conclude the respondent’s ability to earn was $350.00 per week.”
With respect to grounds (d) and (e) the worker makes reference to the Arbitrator’s Reasons between [19] and [32]. It is asserted that the Arbitrator has clearly stated the bases for his conclusions concerning the method of determining quantum of an award and his conclusions as to the worker’s retirement being a consequence of the relentless nature of his work.
The appellant has provided a written response to the worker’s submissions concerning ground (a) and ground (c).
With respect to ground (a) the appellant draws attention to the evidence of Ms Terrey and seeks to reiterate argument that was put before the Arbitrator at the hearing concerning the suitability of particular occupations which are identified by Ms Terrey in her report.
Concerning ground (c) the appellant has adopted the worker’s argument concerning the “speculation” required to determine the factual basis of the Arbitrator’s determination in support of its argument that “…the Arbitrator failed to give adequate reasons…”.
Review of the evidence and submissions
As stated above [43] failure on the part of the Arbitrator to sufficiently state those reasons for his conclusions of fact concerning, in particular, the worker’s ability to earn in terms of section 40(2)(b) of the 1987 Act necessitates a review of the evidence to determine the correctness or otherwise of the Arbitrator’s ultimate determination.
Before embarking upon that review it is important to note that the appellant did not argue before the Arbitrator that there was an unreasonable rejection of suitable employment made by the worker at the time of his resignation (section 40(2A)). I raise this matter because of the fact that a written summary of “Issues in Dispute” is before the Commission. Content of that document is set out at [17(vii)] above. Whilst the appellant at the hearing put certain matters to the worker concerning circumstances of his resignation, there was no argument advanced that the state of the evidence permits the application of section 40(2A) with respect to the calculation of the worker’s entitlement.
The worker has since February 2008 been certified by his general practitioner Dr Pagett as having a permanent restriction of work capacity. That restriction provided in the medical certificate limits lifting with the right hand to a maximum of seven kilograms and work capacity is stated as being ten hours per day, four days per week. Having regard to that evidence alone there can be no doubt that the worker suffers ongoing disability as a result of the subject injury.
There is no medical evidence adduced on behalf of the appellant that suggests Dr Pagett’s restriction is inappropriate. It is of significance that Dr Whittaker in his report dated 16 February 2009 expressed an inability to determine the question as to whether the worker was fit for pre-injury duties or was fit for suitable duties. It is of significance that a bone scan report which Dr Whittaker had before him noted “increased uptake in the region of the right hamate which was also noted on the previous bone scan.” It was Dr Whittaker’s view that further investigation was required to determine whether or not the worker has suffered a “hook of hamate fracture or similar…”. It is to be noted that in the course of physical examination Dr Whittaker recorded “focal tenderness over the right hamate and also the right first MCPJ where there were findings suggestive of a prior injury with bony hypertrophy, subluxation and instability.”
There is no evidence that the further investigations suggested by Dr Whittaker have been conducted hence the suspected fracture has not been confirmed or otherwise. The opinion of Dr Bentivoglio stated in his report dated 25 March 2008 was that the worker had “many signs consistent with a diagnosis of chronic regional pain syndrome involving his right hand.” At the time of that examination the worker had swelling over the dorsum of his hand going into his fingers and altered colouring of the dorsum of his hand. The dorsum of the worker’s right hand was then cooler than that of his left. It is to be noted that, almost twelve months later, Dr Whittaker noted the following matters on clinical examination:
“There was slight puffiness over the dorsal aspect of the right hand and he reported quite marked tenderness and allodynia. The dorsum of the right hand may have been slightly cooler than the left. There was no temperature differential between the palms.”
Having regard to the evidence of the worker himself concerning the condition of his right hand, that being that he continues to suffer pain and swelling with restriction of strength, and the opinions as expressed by Dr Pagett and Dr Bentivoglio it is reasonable to conclude that, on the probabilities, the worker continues to suffer a partial incapacity as a result of the subject injury. There is nothing in the report of Dr Whittaker that would detract from such a conclusion and indeed the matters noted by Dr Whittaker on clinical examination and his tentative views expressed concerning the findings following the bone scan procedure tend to confirm such a view.
I have concluded that the worker is partially incapacitated for his pre-injury work having regard to the evidence relating to the nature of his duties as a labourer whilst employed by the appellant. The worker’s statement bearing date 15 January 2007 which was included in the documents attached to the respondent’s reply contains a detailed description of his work. Those duties included hosing and shovelling debris, plant operation and general labouring duties. It is clear from the description of that work that its performance required strength and dexterity of both hands and exercise of considerable strength particularly in the course of shovelling activities.
It is to be noted that the worker was provided with suitable light duties by the appellant within days of the subject injury. The provision of that work followed an examination by Dr Flemming which had been arranged by the appellant. Initially the worker was engaged in tasks involving use of his left hand only. It is recorded in the report of Dr James Masson dated 18 January 2007, which is attached to the appellant’s reply, that the worker’s condition had progressed to the point where he could, from that date, cease wearing a sling and commence using both hands at work for light activities. It was subsequently noted by Dr Masson in his report of 27 March 2007 that, despite the worker’s fitness for light activities only, he had been required to lift boxes up to 20 kilograms in weight. It was Dr Masson’s view that such activity was not appropriate and a certificate was issued certifying that there should be a seven kilogram lifting restriction. As noted above the worker has been certified by his general practitioner since February 2008 as being permanently restricted to work involving lifting weights of no greater than seven kilograms with the right hand.
The worker was, between approximately mid 2007 and July 2008, employed in the trim and sorting areas of the appellant’s plant. There is a dispute between the parties as to whether the work provided in that section was suitable work within the meaning of the 1987 Act. The appellant has placed a number of statements before the Commission, one made by the worker’s immediate supervisor in that section and others by four fellow workers. The general tenor of those statements, prepared by an investigator, is that the worker was required to perform very light duties in that section. Having regard to the content of the statement by Massa Nah it is clear that some work in that section involved pushing of the meat which was of a heavy nature however it is stated by Ms Nah that such work was “always” done for the worker by someone else.
The worker in his statement dated 25 August 2006 which is attached to his Application included the following:
“The suitable duties which I was provided with did not correspond with the restrictions on my certificate. Whilst most of the lifting I was required to do was less than 7 kgs, it was common to have pieces of meat that weighed over 7 kgs that I had to lift with my right arm. I would repeatedly have to do this and my hand would get into a lot of pain. My hand would also swell up.”
In evidence given before the Arbitrator the worker described his post-injury duties with the appellant in the following terms:
“MR MARSH: Q. Mr Hardwick, this job, this work you were doing when you were doing the light duties when you were restricted supposedly to a lifting of seven kilograms, how would you describe that work?
A. It was an ongoing thing. It was non‑stop, and you just did not stop that particular job. If you were assigned to that job that day, that's what you had to do. It was strenuous, it was continuous and it was just the same thing going through all the time.Q. And you were required sometimes, you've said, to lift objects with two hands?
A. Yes.Q. And I take it that would happen frequently throughout the day?
A. Yes, because I couldn't keep up with the belt. There were times where, yeah, I had to grab with both hands the shanks and that to get them off the belt.”
There was in evidence before the Arbitrator a number of reports compiled Ms Amy Geach of Riverina Hand Therapy. Ms Geach supervised management of the worker between December 2006 and June 2007. It is to be noted that in January 2007 at a time when the worker was employed on lighter work in the appellant’s boning room, Ms Geach has recorded her advice to the worker in the following terms:
“If you notice during work that your arm/hand is becoming increasingly swollen, I would recommend taking a break to elevate it for 20-30 minutes, gently moving the fingers at the same time that should help the swelling to subside.”
It appears from the report of Ms Geach dated 23 March 2007 that, whilst decreasing over time, there remained swelling in the worker’s right hand/wrist.
There are further reports of Ms Geach in evidence. The first dated 9 June 2007 and the other 20 June 2007. The first of those reports records that the worker, on 8 June 2007 “unexpectantly [sic] presented with a prominently swollen right hand, with evidence of bruising over the dorsal aspect of the thumb metacarpal and index metacarpal.”
Ms Geach records discussion with the worker concerning the nature of his work at that time. Ms Geach stated that she did not consider the worker’s current work duties were contributing to the problem. She further expressed the view that the work tasks “are appropriate for him to complete”. Ms Geach in that report foreshadowed termination of therapy.
The report of 20 June 2007 records the persistence of bruising, tenderness and swelling over index finger MC and thumb MC right hand. Ms Geach expressed the view that she was unable to find any reason for the swelling and expressed the view that it was “unrelated to the initial injury”. That report records that the worker was discharged from therapy as of 14 June 2007.
It is the worker’s case that the duties that he was required to perform in the trim/sorting section under the supervision of Mr Wade caused pain, discomfort and swelling in his right hand. That appears to be objectively corroborated by the observations of Ms Geach made in June 2007 the approximate time, as stated by Mr Wade, of the worker’s commencement in that section. I conclude on the probabilities that the work provided, whilst in some respects light, had features requiring constant attention to the product transported on the conveyor and required manipulation of heavy items from time to time. I accept the worker’s statement that those duties did not correspond to the type of work which had been certified by his treating doctors from time to time.
The worker suffered no wage loss up to the date of his resignation in mid July 2008. I am satisfied that he has remained partially incapacitated for his pre-injury duties since that date to the present time. He is therefore entitled to be compensated, as he claims, pursuant to section 40 of the 1987 Act. A determination of his entitlement requires adherence to the steps enunciated in the matter of Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’). Step 1 as outlined in Mitchell requires a determination of the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a)). That figure has been agreed between the parties and the worker’s probable earnings but for injury I find to be $736.00 per week from 14 July 2008 to date.
The second step as prescribed in Mitchell requires a determination of the average weekly amount the worker is earning or would able to earn in some suitable employment from time to time after the injury (section 40(2)(b)). It is this sum that is the subject of significant dispute between the parties. The Arbitrator has determined that sum throughout the relevant period as being $350.00 per week. That is the weekly amount which was put in argument on behalf of the worker as being an appropriate assessment of post-injury ability to earn. The employer argued that an appropriate figure would be $450.00 to $500.00 per week (transcript page 70).
It is the appellant’s submission on this appeal that “there is a wide range of work for which the [worker] is fit taking account of the restrictions on his activities caused by his injury” (submissions at [55]). Reference was made to the material contained in the vocational report tendered on behalf of the appellant and argument advanced before the Arbitrator was reiterated, that being, that the worker was capable of performing work that would yield an income in the range of $541.79 to $640.00 per week. The appellant has fairly stated both before the Arbitrator and on this appeal that there may be factors that would, in a practical sense, need to be taken into account concerning the obtaining and retention of employment by the worker. At [61] of submissions the appellant addresses the provisions of section 43A(1) of the 1987 Act. I accept, with some qualification, the matters stated by the appellant as being relevant when addressing the question of suitable employment with reference to the provisions of the last mentioned subsection. It is said that the worker presently resides some distance from the Newcastle area. It is clear that following his resignation the worker moved from Wagga Wagga to Bellbird near Cessnock thence to Lemon Tree Passage on Port Stephens (being near Newcastle) and it was revealed in the course of evidence that shortly before the arbitration hearing he had again moved to Medowie which is located near Maitland NSW.
The provisions of section 43A(1) direct attention to the question of the worker’s skills. It is suggested (see report of Dr Van Der Rijt dated 26 October 2006) that the worker “is a trained butcher by trade.”A similar notation is made by Ms Terrey. That matter is nowhere confirmed in the evidence. I conclude that such a notation was made by way of mistake probably founded upon misunderstanding during the course of history taking. The worker’s skills and work experience are limited to unskilled labouring work and supervisory duties such as performed by staff at correctional centres.
Whilst the appellant’s reliance upon the vocational report has to an extent been tempered by the fair concession that practical considerations are required to be taken into account as above noted, there remains a matter of significance which, in my view, requires consideration and that is the material contained in the report concerning the worker’s wish and aptitude to perform youth social work. The worker, in evidence before the Arbitrator, has stated that such work requires training. The author of the vocational report, Ms Terrey, states that such work may be taken up without formal qualifications however “entry to this occupation may be improved” if qualifications had been attained. The appropriate training was described at page 10 of her report being “Certificate IV in Community Services”. Such is a correspondence course and requires “787 nominal hours.”
The worker remains unqualified for the occupation of a youth worker and is presently residing in Medowie. A determination of the worker’s ability to earn requires consideration not only of his residual physical capacity but also the general labour market reasonably accessible to him. The worker is now middle aged and is competing with much younger members of the workforce for available employment. His skills are limited and he has a significant restriction with respect to use of his dominant right hand. I do not accept, and it appears that the appellant is properly not pressing, that the worker would be able to earn those sums specified in the vocational report earned in the occupations of sales assistant and store person. I consider his prospects of employment as a youth worker are, without training, slight.
Determination of the ability to earn of a partially incapacitated worker is a hypothetical exercise (see Singh v TAJ (Sydney) Pty Limited [2006] NSWCA 330 per Beazley JA at [33]-[35]). That being the case the fact that, for whatever reason, the worker does not presently hold a driver’s licence is not a factor relevant to the determination of his ability to earn post-injury.
Complaint has been made by the appellant concerning the Arbitrator’s finding concerning the reasonableness of the worker wearing a splint and bandage on his injured hand at times when he was seeking suitable work. It is suggested by the appellant that such fact must have been taken into account by the Arbitrator when determining his ability to earn. It is further argued that the finding of reasonableness of the conduct of the worker in wearing the splint and bandage was not open to the Arbitrator on the evidence.
The worker has stated in evidence that wearing of the splint and bandage is of benefit to him. Whilst there is no medical evidence before the Commission which suggests that the wearing of the splint is indicated, there can be no basis to challenge the worker’s assertion that he gains a benefit from its use. Leaving aside my view as to the availability on the evidence of such a conclusion I do not consider that the fact of use of the splint on those occasions is a factor relevant to the assessment of the worker’s ability to earn in terms of the subsection. I propose to have no regard to those circumstances when dealing with that task.
Having regard to the provisions of section 43A(1) the following factors, in my view, are relevant when determining the nature of suitable employment in this matter:
(a) the extent of the worker’s incapacity which results from a crush injury to his dominant right hand giving rise to a permanent restriction limiting lifting to a maximum of seven kilograms with that hand; the worker’s pre-injury employment was that of labouring which entailed a significant element of heavy work including shovelling;
(b) the worker is 49 years of age, educated to year 10. The worker has not completed any courses or training since leaving high school and I confirm my view that the history concerning his trade qualification as a butcher reported by Dr Van Der Rijt and Ms Terrey is the result of mistake or misunderstanding. The worker’s employment history is that of general labouring with five years experience as a prison officer;
(c) the worker resides at Medowie NSW;
(d) the worker has been medically certified as noted in (a) above;
(e) the worker’s preferred employment in his incapacitated state is that of a youth social worker for which he has yet to receive training, and
(f) the worker, I accept, has been actively seeking suitable employment since his relocation to Bellbird NSW, near Cessnock soon after his resignation from employment with the appellant.
In addition to the matters enumerated above I consider that, should the worker be so fortunate as to obtain suitable employment he would be capable of performing such work 40 hours per week. There is a likelihood that the worker will experience periods of unemployment given the state of the labour market available to him. Doing the best I can with the evidence before the Commission I consider that the worker’s ability to earn in suitable employment is $400.00 per week.
It may be seen that, following the prescribed steps to be found in Mitchell, the mathematical difference between the worker’s probable earning but for injury and his ability to earn as I have earlier determined is $336.00 per week.
The mathematical difference between the earlier mentioned sums represents the worker’s prima facie entitlement to compensation pursuant to section 40. It remains to be considered whether there is any matter that should properly be taken into account in the exercise of discretion in quantifying such an entitlement in a lesser amount. I do not consider the fact the worker does not have a current drivers licence is relevant to exercise of the discretion granted by the terms of section 40(1) (see discussion by Roche DP Daly Smith Corporation v Scherf [2008] NSWWCCPD 74 at [73]-[81]) (‘Scherf’). Whilst each matter requires determination on its own facts the appellant, as stated in Scherf, must take the worker as he finds him.
It may be seen that I have attempted to deal with the various “grounds” raised on this appeal by the appellant. Shortly stated my conclusions are:
· As to ground (a) I accept the appellant’s argument that the Arbitrator failed to provide sufficient reasons for his finding as to the worker’s ability to earn in suitable employment post-injury.
· As to ground (b) I accept the appellant’s submission that the Arbitrator has erred in determining the worker’s ability to earn in terms of section 40(2)(a) as being $350.00 per week.
· As to ground (c), I have considered the appellant’s arguments raised under this head and have concluded that there is no relevance of those matters to my assessment of the worker’s ability to earn.
· As to grounds (d) and (e) I have indicated above that I accept the evidence of the worker concerning the demands of his day to day tasks whilst employed by the appellant post-injury. That evidence has been set out at [68] above. It is arguable that the Arbitrator’s conclusion that the worker’s retirement was the consequence of the “relentless nature of his work” was open to him on the evidence. Whether that be so or otherwise is of no relevance to these proceedings. The reason for his retirement cannot matter when a determination of any entitlement under section 40 is addressed by the Commission. This is so given that the appellant elected not to argue that the worker in resigning his position had “unreasonably” refused suitable work in terms of section 40(2A). Further, my acceptance of the worker’s evidence on this point defeats any suggestion that his resignation might be relevant to the exercise of the discretion under section 40. I have stated my views concerning the worker’s use of the splint and the Arbitrator’s finding in relation to same at [83] above. As stated do not consider this to be a matter relevant to the quantification of his ability to earn. Nor is it, in my view, relevant to the exercise of discretion.
It may be seen that I have concluded that the Arbitrator has erred in his determination of the dispute. In the circumstances his determination requires revocation. The Court of Appeal in Chubb Security Australia Pty Limited v Trevarrow [2008] 5 DDCR 1 has expressed the view that should an appeal be upheld, it is preferable, if possible, that the Presidential member finally determine the matter (per Santow JA at [28] and [29]).
Having regard to the circumstances of this matter I am of the view that it is desirable, and in conformity with the Legislature’s intent, that errors identified in the appeal are corrected without the need to remit the matter for further consideration by an arbitrator.
In the circumstances it is appropriate that the matter be re-determined in accordance with the decision as stated hereunder.
DECISION
Paragraph one of the Arbitrator’s decision dated 6 April 2009 is revoked and paragraphs two and three are confirmed. The following order is made in the place of paragraph one:
“1. Award for the applicant at the rate of $336.00 per week from 15 July 2008 to date and continuing pursuant to section 40 of the 1987 Act.
COSTS
Whilst the appeal has succeeded it is to be noted that the worker has retained the fruit of the original award subject to a relatively minor adjustment of weekly entitlement. In the circumstances, having regard to the Commission’s wide discretion with regard to the question of costs, I consider it appropriate that the appellant pay the respondent’s costs of the appeal.
Kevin O’Grady
Deputy President
20 July 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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