Cargill Meat Processors Pty Limited v Clark

[2005] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR

CITATION:Cargill Meat Processors Pty Limited v Clark [2005] NSW WCC PD 7

APPELLANT:  Cargill Meat Processors Pty Limited

RESPONDENT:  Raymond Timothy Clark

INSURER:NSW Treasury Managed Fund

FILE NUMBER:  WCC10521-2003

DATE OF ARBITRATOR’S DECISION:          28 November 2003

DATE OF APPEAL DECISION:  14 February 2005

SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; Issue Estoppel; Weight of Evidence; Adequacy of Reasons.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:1 February 2005

REPRESENTATION:  Appellant:     Turks Legal

Respondent:  Everingham Solomons Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

The Appeal

1. On 19 December 2003 Cargill Meat Processors Pty Limited lodged an appeal against the decision of an Arbitrator, dated 28 November 2003.   

1. The appeal is against the Arbitrator’s decision to award ongoing workers compensation benefits to Raymond Clark for an injury to his right thumb.  Mr Clark claims that the injury occurred on 23 February 1999 during the course of his employment as a ‘Grade 4 Slicer’ at Cargill.

1. Mr Clark had obtained an award (by consent), in the Compensation Court on 22 August 2002, in respect of a 10% permanent loss of use of his right thumb.  

1. I am satisfied that I have sufficient information to proceed ‘on the papers’, pursuant to Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

1. Leave to appeal is granted.

1. Cargill claims that the Arbitrator has made a number of errors, namely that he:

   · Failed to deal with, or properly determine the issue of whether Mr Clark was, for a period, partially incapacitated for work pursuant to section 40 of the Workers Compensation Act 1987 (the 1987 Act), and, if so, what his proper entitlement was under this section;

   ·        Made a determination that was against the weight of evidence;

   ·        Did not find Mr Clark was estopped from bringing these proceedings for weekly benefits prior to 20 August 2002, or at all;

   ·        Did not have regard to the issues between the parties when making an order for costs, and

   ·        Did not give adequate reasons for his decision.

1. Mr Clark submits that the Arbitrator’s decision was correct and seeks to have the appeal dismissed with costs.

Did the Arbitrator Correctly Determine Mr Clark’s Section 40 Entitlement?

1. A number of the grounds of appeal argued by Cargill concern the proper determination of Mr Clark’s entitlements, if any, under section 40 of the 1987 Act. They are that the Arbitrator:

   · Did not identify an issue in dispute as to whether Mr Clark was incapacitated for work at all for the purposes of Section 40 of the 1987 Act, whether he suffered any economic loss and Cargill’s liability, if any, under Section 40;

   ·   Took irrelevant considerations into account in determining whether Mr Clark was partially incapacitated for work as a result of the injury;

   ·   Failed to take into consideration the evidence in regard to wages, in particular, that Mr Clark had, during the relevant period, been paid as much or more than comparable employees;

   ·   Substituted a wage rate that was inconsistent with the evidence;

   · Did not consider Mr Clark’s medical evidence sufficiently, or at all, in determining his entitlement under section 40; and

   · Failed to exercise his discretion in relation to an award under section 40.

1. Cargill submits that there was no evidence before the Arbitrator of wage loss by Mr Clark or as to the amount of overtime and the rates he would have been earning, but for the injury.  Instead, Cargill contends that the only evidence before the Arbitrator was the average wage records of comparative Grade 4 Slicers, Mr Adams and Mr Shillings, both of whom earned less than Mr Clark.  Hence, there was no evidence before the Arbitrator of comparative Grade 5 Slicer employees who worked an equivalent amount of overtime to Mr Clark.  Cargill argues there was no way for the Arbitrator to substantiate that Mr Clark had indeed suffered a loss of earnings, and that the Arbitrator’s determination involved a substantial amount of “guess work”.

1. The Arbitrator refers to the medical evidence of Dr Hopcroft and the clinical records of Tamworth Base Hospital.  He also refers to the Short Minutes of Order entered in the Compensation Court of NSW on 22 August 2002 before concluding at paragraph 39 of the Reasons, that Mr Clark was partially incapacitated for work.  He found that: “[it] is uncontested medical evidence that he had a loss of strength in his right hand and in fact an Award was made in the Workers Compensation Court reflecting his degree of permanent impairment”.

1. The Arbitrator’s reasons for finding that Mr Clark would have been a Grade 5 Slicer, but for the injury, are found in paragraph 41 of the Reasons where he states: “From the Applicant’s Statement, it appears that since he commenced employment with the Respondent, he worked his way up through the ranks and there is nothing to suggest that he would not continue to do so”.  The Arbitrator notes that Mr Clark’s training towards a Grade 5 Slicer required a level 3 certificate in meat processing and that Mr Clark was working towards this requirement as his training was “on the job”, as illustrated by his progression since the commencement of his employment.

1. The Arbitrator accepted Mr Clark’s sworn oral evidence that he worked approximately 7 hours overtime, which equated to $180.00 per fortnight gross.  The Arbitrator observed that while the wages schedule of 3 October 2003 varied in regards to the amount of overtime worked each week, he accepted that 7 hours per fortnight was reasonable, “as much for a Grade 5 Slicer as a Grade 4 Slicer”.  In the exercise of his discretion, the Arbitrator found that, but for the injury, Mr Clark would have earned $70.00 overtime per week as a Grade 5 Slicer.

1. In submissions on the appeal Cargill have misrepresented the Arbitrator’s comments from paragraph 32 of the Reasons, where he is referring to submissions, not to a finding as to whether Mr Clark “would have progressed to a Grade 5 Slicer in the ordinary course of his employment”.

1. I am not satisfied that the Arbitrator has erred in finding that Mr Clark was entitled to compensation under section 40 of the 1987 Act, nor in calculating the amount of that entitlement. The Arbitrator properly identified the process for the determination of this entitlement, by reference to the matter of Mitchell v Central West Health Service (1997) 14 NSW CCR 526). 

1. The Arbitrator expressly considered the issue of what, if any, incapacity Mr Clark suffered.  The issue of whether his injury prevented him from working at a higher grade is expressed at paragraph 34 and 35 of the reasons.  The Arbitrator considered the evidence of Mr Shuttleworth, for Cargill.  He then considered the medical evidence and found, correctly, that it was uncontested on the medical evidence that Mr Cargill suffered a “loss of strength” in his right hand.  The nature of that particular injury and incapacity directly affected his ability to earn, in particular, to carry out the duties of a Grade 5 Slicer, for which he had been undertaking his ‘on the job’ training. 

1. The Arbitrator relied upon New South Wales Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217, in relation to the task of determining Mr Clark’s probable weekly earnings. In that case the Court of Appeal held that in circumstances where it was difficult to estimate a worker’s probable earnings if he/she remained uninjured, it may be appropriate to estimate probable earnings in some comparative employment. The Arbitrator referred to the relevant principles and made certain findings, on the evidence of Mr Clark (oral evidence and in his written statement), the relevant industrial award in relation to the duties of a Grade 5 Slicer and the oral evidence of Mr Clark as to his ‘on the job’ training. There was sufficient evidence for the Arbitrator to conclude that “the amount Mr Clark would have been earning but for the injury, was the wage of a Grade 5 Slicer” (section 40(2)(a) and step 1 in Mitchell).

1. In determining the amount that Mr Clark would have been earning, but for the injury, the Arbitrator is entitled to take into account the possible promotion that would have occurred within the same employment (Australian Wheat Board v Panteleo (1985) 1 NSW CCR 1).  This determination is essentially a question of fact in each case and may be informed by the likely changes in employment that may occur for a number of reasons, including promotion, industry changes, seniority and skill development.  The Arbitrator in this matter based his calculation of the amount that Mr Clark would have earnt, but for the injury, on the Relevant Award rate for a Grade 5 Slicer.  He rejected the Respondent’s evidence (Mr Shuttleworth) that Mr Clark would not progress to a higher grade of slicer because he did not have the appropriate skills, and, conversely, accepted that the injury to Mr Clark’s hand had a direct consequence in terms of the particular skill demanded of his employment. 

1. The Arbitrator then made an adjustment to the Award rate on the basis of his acceptance of Mr Clark’s evidence as to overtime and a consideration of the wage records submitted by Cargill.  The evidence before the Arbitrator in relation to comparable earnings, Mr Adams and Mr Shillings, was poor.  The wage records provided for these two workers shows that each earns less than the AWA award rate for a Grade 5 Slicer, inclusive of overtime, some of the time, and less than Mr Clarke at other times.  No explanation was provided for this anomaly.  Review of this evidence discloses that:

Mr Shilling:
Fortnightly breakdowns are provided for only part of the period and Mr Shilling ceased work on 1/9/02.
Payroll records evidence that Mr Shilling worked an average of 0.39 hours of overtime per week for the period 1/7/00-26/6/01; 1.25 hours of overtime per week for the period 1/7/01-30/6/02 and 1.53 hours of overtime per week for the period 1/7/02-1/9/02.

Mr Adams:
For the period 1/07/00 to 24/6/01 Mr Adams worked an average of 0.61 hours per week (averaged over a year).
There are no wage records for the financial year 2001-2002 for Mr Adams.
For the period 1/7/02 to 24/11/02 Mr Adams worked an average of 2.43 hours of overtime per week.
Mr Adams pay records show that he was demoted to a Grade 4 slicer from 13/10/02 until the cessation of his employment.

1. Payroll records for Mr Clark for the period 1/7/02 to 30/6/03 record 208.65 hours of overtime in that financial year.  This averages 4.01 hours per week and is consistent with his oral evidence of 3-4 hours overtime worked per week (paragraph 29 of the Arbitrator’s statement of reasons) and is also consistent with the Arbitrator’s finding of an average of 7 hours overtime per fortnight.  In my view the Arbitrator did not err in allowing this amount of overtime.  Given the evidence that was before him (such as it was), the Arbitrator did not arrive at a wage rate that was inconsistent with the evidence.  Nor did he take irrelevant matters into account. 

1. The Arbitrator had evidence before him to support his findings, including the written statement of Mr Clark, his oral evidence and the relevant award and medical evidence as to his incapacity.  I do not accept the submission that the Arbitrator’s findings are against the weight of the evidence.

Is Mr Clark Estopped From Bringing His Claim For Wage Loss?

1. Cargill Meat Processors submits that the Arbitrator erred in law in failing to find that Mr Clark was estopped from bringing these proceedings for weekly compensation because he had previously obtained an award for 10% permanent impairment of his right thumb in the Compensation Court.  The Appellant argues that Mr Clark ought to have made his claim for weekly compensation in the Compensation Court and cannot do so now under the authority of the High Court decision of Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

1. At paragraph 40 of the Reasons, the Arbitrator found that issue estoppel as it applied in Anshun did not apply in this case as Mr Clark’s rights arose from statute. The Arbitrator stated that Mr Clark’s “rights arising from Section 40 are quite separate and distinct from those arising from Section 66”.

1. This ground of appeal is not made out.  No estoppel arises as a result of Mr Clark’s previous Compensation Court proceedings.  Mr Clark has a statutory entitlement to bring proceedings in relation to a dispute about payment of weekly benefits compensation to the Commission.  There is no prohibition on the bringing of those proceedings, other than as to time.  I note that the Workers Compensation Regulation 2003, Schedule 6, Clause 2, contemplates that more than one claim in respect of a particular injury may be made, or more than one dispute in respect of a claim may arise, and imposes certain limitations on the costs that may be recovered in relation to a later claim or dispute. Indeed the workers compensation jurisdiction is unique in that, following a decision of the Commission (and previously the Court), further applications in relation to a worker’s injury may be made where there is a change of circumstances that affect particular entitlements, or where a reconsideration is sought (section 55 of the 1987 Act, section 350 of the 1998 Act).

Did The Arbitrator Give Adequate Reasons?

1. Cargill argues that the Arbitrator failed to give any reasons for his finding (at paragraph 42 of the Reasons) that, but for the injury, Mr Clark would have been employed as, and earning a wage for a Grade 5 Slicer.

1. In paragraph 41 of the Reasons the Arbitrator refers to Mr Clark’s statement and notes that since commencing employment with Cargill, Mr Clark had “worked his way up through the ranks and there is nothing to suggest that he would not continue to do so”.  The Arbitrator refers to the relevant award under the AWA where the duties and responsibilities of a Grade 5 Slicer requires the employee to have “received on and/or off the job training which may include the attaining of trade’s qualifications or approved course certification”.  The Arbitrator accepted as a finding of fact, Mr Clark’s oral evidence that his training was “on the job” as indicated by his progression through the ranks since employment.

1. Commission Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Rule 73 of the Workers Compensation Commission Rules 2003; Absolon v NSW TAFE [1999] NSWCA 311; Fox v Percy (2003) 214 CLR 118). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSW WCC PD 6). The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. Lengthy written reasons will not generally be necessary to convey simply, clearly and concisely, the reasons why a decision has been made.

1. In Williams v Boambee Bay Time Share Resort Pty Limited & Anor [2004] NSWCA 59, Stein AJA said, at [33]:

“…Brevity in reasons is to be admired but they must still pass the tests enunciated
in the authorities.

It was acknowledged by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 at 271-273 that a judge is not required to make a finding in respect of every fact leading to the final conclusion of fact, nor reason from one fact to the next along the chain of reasoning to that conclusion. Nevertheless, a judge must distinguish between the essentials and the peripherals. This is so particularly where there is a right of appeal to be exercised. Reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made.”

1. To succeed on the ground of ‘inadequate reasons’ Cargill must demonstrate not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application (YG v Minister for Community Services [2002] NSWCA 247 (26 July 2002); Absolon v NSW TAFE [1999] NSWCA 311).

1. This ground of appeal is not made out.  The Arbitrator has given reasons for his findings.  It is not correct to assert, by extracting paragraph 42 from the surrounding paragraphs and the rest of the Reasons, that no reasons for finding that Mr Clark would have been earning a wage for a ‘Grade 5 Slicer’ were given.  The Arbitrator’s reasons for this conclusion are articulated in paragraph 41.  The Arbitrator’s reference to New South Wales Harness Racing Club Ltd v Forrest (1995) 12 NSW CCR 217 and reliance upon the principle contained therein is adequately explained in paragraph 41 of the Reasons. 

1. On the critical issue of the wage rates and the correct award according to Mr Clarke’s ‘level’ of Slicer, loss and overtime, the Arbitrator has expressly preferred the evidence of Mr Clark and a “detailed examination of the wage records submitted by the Respondent”. 

1. In my view the reasons, when read as a whole, are adequate and indicate that the Arbitrator has taken into account all of the evidence, and lack thereof, as well as the submissions of both parties (Beale v GIO (NSW) (1997) 48 NSWLR 430 AT 444; Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259).

Did the Arbitrator Properly Make the Order for Costs?

1. Cargill submits that “the Arbitrator erred in refusing to determine costs without regard to the issues between the parties”. 

1. This ground of appeal has no merit.  The Arbitrator ordered that Cargill pay Mr Clark’s costs “as agreed or assessed”.  This is the appropriate order to make where Mr Clark was successful in his application.  It is consistent with the provisions of Part 8 of the 1998 Act.

1. The Arbitrator has not erred in exercising his discretion to award costs against Cargill. 

DECISION

1. The decision of the Arbitrator, dated 28 November 2003, is confirmed.

Dr Gabriel Fleming

Deputy President  

11 February 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE