Catholic Health Care Limited v Perkins
[2008] NSWWCCPD 22
•20 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Catholic Health Care Limited v Perkins [2008] NSWWCCPD 22
APPELLANT: Catholic Heath Care Limited
RESPONDENT: Lynore Gay Perkins
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC5125-07
DATE OF ARBITRATOR’S DECISION: 26 September 2007
DATE OF APPEAL DECISION: 20 February 2008
SUBJECT MATTER OF DECISION: Application of section 40(2A) of the Workers Compensation Act 1987; effect of resignation of employee on entitlements to benefits under section 40 of the 1987 Act.
PRESIDENTIAL MEMBER: President Greg Keating DCJ
HEARING:On the papers
REPRESENTATION: Appellant: Leitch Hasson Dent
Respondent: Michael E Bradstreet
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 26 September 2007 is confirmed.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 22 October 2007 Catholic Health Care Limited, the Appellant /Employer, (“Catholic Health”) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 September 2007.
Lynore Perkins, the Respondent Worker in this Appeal was employed by Catholic Health as an assistant in nursing. She had been employed by Catholic Health for eight years.
On 6 October 2005 Mrs Perkins claims that while assisting patients to move in and out of bed she felt a severe pain in her back. She sought treatment including physiotherapy. She was off work for a period of four weeks and then went back to work for two hours a day, three days per week for a further four weeks. Her hours were gradually increased to her usual pre-injury hours of seven hours per day, three days per week performing suitable duties.
On 29 March 2007 Mrs Perkins and her husband attended a meeting at her employer’s premises. Those present included Chris Condon (Director of Care), Fiona Franks (Case Manager from QBE), Jacqui Belford (Deputy Director of Care) and Mark Gleeson (OH&S Consultant). The matters discussed included Mrs Perkins’ current condition, her capacity to cope with the duties that were then allocated to her, her future rehabilitation options and future employment options.
On 3 April 2007 Mrs Perkins resigned her employment with Catholic Health.
In July 2007 Mrs Perkins obtained employment with “Just Better Care” in circumstances where her hours of work and earnings were substantially less than her working hours and earnings at the point of her resignation.
Mrs Perkins filed an Application to Resolve a Dispute on 10 July 2007 claiming weekly benefits, medical expenses, lump sum compensation and compensation for pain and suffering. The claims for lump sum compensation and compensation for pain and suffering were subsequently discontinued.
On 31 July 2007 Catholic Health filed a Reply to Application to Resolve a Dispute (‘Reply’) in the Commission.
The claim was listed for a conciliation and arbitration hearing before a Commission arbitrator on 4 September 2007. On the 26 September 2007 the Arbitrator issued a Certificate of Determination in terms set out at paragraph 19 and a ‘Statement of Reasons for Decision’ (‘Reasons’).
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
Section 352(4) states that an appeal can only be made within 28 days after the making of the decision appealed against. Catholic Health’s appeal was lodged on 22 October 2007, in compliance with section 352(4).
For the Commission to grant leave to appeal the appeal must also meet the monetary threshold imposed by section 352(2) which provides:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
On the threshold issue Catholic Health submit that Mrs Perkins is 47 years old and was successful in obtaining an award of compensation of $68.00 per week. The amount of the weekly award of compensation calculated annually is $3567.20 and Mrs Perkins has the potential of a further 19 years for this award to run, making a total of more than $67,000.00 in compensation and the whole of the award is in issue in the appeal.
Mrs Perkins makes no submissions in this regard. I concur with Catholic Health’s submissions.
Both sections 352(2)(a) and (b) of the 1998 Act are satisfied.
Leave to appeal is granted.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parites 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 September 2007 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. That the Respondent pay the Applicant weekly compensation pursuant to s.40 of the Workers Compensation Act 1987 at the rate of $68.80 from 29 March 2007 to date and continuing in accordance with the provisions of the Act.
2. That the Respondent pay the Applicant’s expenses pursuant to s.60 of the Act upon production of accounts or receipts.
3. That the Application pursuant to s.66/67 of the Act be discontinued and the requirement to file a notice of such discontinuance be dispensed with.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in this appeal concern firstly the Arbitrator’s alleged failure to take into account the evidence that Mrs Perkins had been employed on a fulltime basis earning the same, or more, than her pre-injury duties at the time she resigned her employment with Catholic Health.
Secondly, the Arbitrator’s alleged failure to consider the operation of and apply section 40(2A) of the Workers Compensation Act 1987 (the ‘1987Act’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS
The parties’ submissions are sufficiently succinct to be set out in full.
Catholic Health submits:
“GROUNDS OF APPEAL
1. The Arbitrator erred in not taking into account the evidence that the Applicant [Mrs Perkins] had been employed on a full-time basis earning the same, or more, than her pre-injury duties at the time she resigned her employment with the Respondent [Catholic Health].
2. The Arbitrator failed to consider the operation of s40(2A) of the Workers Compensation Act.
SUBMISSIONS IN SUPPORT
3.The appellant submits that there was an error by the Arbitrator in regards the application of s40 of the Workers Compensation Act (1987) (the Act) and more particularly s40 (2A) should have been applied by the arbitrator in this matter, s40 (2A) reads
‘(2A) Calculation of reduction in earnings of worker-workers rejecting suitable employment If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:
(a) the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and
(b) the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).’
The appellant relies [sic] the matters set out on pages 6.9 & 7.1 of the award where the arbitrator notes the ‘Respondent’s other evidence’, namely the statement of J. Belford that the applicant was offered employment that would result in her being paid her pre-injury wages, and indeed was doing such work at the time of her pre-injury wages, and indeed was doing such work at the time of her resignation. This evidence is note [sic] contradicted and the arbitrator notes in paragraph 41 the …fact that the respondents and applicants an evidence is the same in relation working with the applicant’s doctors to get to full hours of work…’
There is no explanation of the applicant leaving the employment of the respondent and not accepting the respondent’s offer of work (see paragraph 41) and this should be the basis for a finding that the applicant has rejected an offer of suitable employment and therefore the provisions of s40 (2A) are invoked.
The Arbitrator once bound by s40(2A) must then calculate the current weekly wage rate and deduct from it the current weekly wage rate for some suitable employment which the applicant could do from time to time. The work she could do from time to time should be found to be the work the respondent was offering her when she voluntarily left the respondents employ (see above).
The Arbitrator’s award should have then resulted in a zero dollar award for the s40 claim, as the current weekly wage rate and the current wage rate for the work she could do under s40(2A)(b) was the same, see above.”
Mrs Perkins submits:
“1.The Appellant Insurer grounds its Appeal on two bases, both founded on s40(2A) of the Workers Compensation Act.
2. It follows that the Appellant does not attack the findings of the Arbitrator, that ‘…the Applicant is partially incapacitated from 29 March 2007 (the date of resignation) to the present and ongoing’ (Decision page 9). And later on the same page: ‘The Applicant is partially incapacitated as a result of her back injury.’
3. For s40(2A) to have force at all, clearly there must be a finding by the Arbitrator that the worker has ‘unreasonably rejected suitable employment’.
No such finding was made by the Arbitrator nor was there any evidence upon which to base such a finding.
4. The Respondent gave evidence that she had been working light duties with the Appellant at the time she left its employ but that a meeting had been organised for 29 March 2007 and she gave this evidence as to that meeting. (Transcript reference page 11 line 50 to page 13 line 30, not reproduced).
5. The above evidence was not challenged in cross-examination and, thus, is all that the Arbitrator was left with to consider the circumstances surrounding the Applicant’s resignation.
6. For the Arbitrator to find that the requirements of s40(2A) were satisfied based upon the evidence set out above would be perverse and the Arbitrator was correct in not applying s40(2A).
7. Simply because the Arbitrator does not mention s40(2A) in her Decision does not mean that she has not considered it and the second ground of appeal is misconceived.”
DISCUSSION AND FINDINGS
I deal firstly with the second ground of appeal, namely the Arbitrator’s failure to consider the operation of section 40(2A) of the 1987 Act. The first question is whether Catholic Health should be permitted on appeal to argue the case under section 40(2A). The case that was argued before the Arbitrator dealt with questions of incapacity and causation and a quantification of the Worker’s entitlement under section 40. Reliance upon section 40(2A) was not argued.
On 29 March 2007, QBE issued a notice under section 74 of the 1998 Act to Mrs Perkins. The matters that were identified as being in dispute included the following:
·“You are no longer incapacitated for your usual employment.
·You did not sustain an “injury” as defined by section 4 of the Workers Compensation Act 1987.
·Ongoing treatment is no longer reasonably necessary.
·Your employment is no longer a substantial contributing factor to the injury.”
On 20 June 2007 QBE issued a further notice to Mrs Perkins under section 287A of the 1998 Act following a review of the earlier decision to decline liability. The same four matters referred to in the proceeding paragraph were identified as the matters in dispute.
Neither the notice under section 74 or the review under section 287A of the 1998 Act made any reference to liability being declined pursuant to the provisions of section 40(2A) of the 1987 Act.
At the arbitration Mrs Perkins was represented by her Solicitor, Mr Bradstreet. Catholic Health was represented by Counsel, Mr Carney. At the outset of the proceedings the Arbitrator dealt with a number of preliminary matters. She noted that the section 66 and section 67 applications had been discontinued. She then identified the outstanding issues to be argued. At transcript page 2 she said:
“That leaves us with a number of issues. One is, is there any issue of whether or not the applicant suffered an injury to the neck and the right and left knees; there’s also an issue in relation to the reasonable necessity of certain medical expenses pursuant to section 60 of the Act; and, thirdly, there is the question of incapacity and, leading to that, the applicant's entitlement, if any, to workers compensation by way of weekly payments from 29 March 2007 to date and continuing.
There then followed a discussion concerning the admission of certain evidence but there was no demur by Mr Carney that the issues had not been clearly and accurately identified by the Arbitrator. Importantly at the outset of the proceedings there was no mention of section 40(2A) being relied upon.
At page 23 of the transcript, Catholic Health put their case as follows:
“So, our primary submission is that the aggravation has ceased, in line with Dr Boundy and Dr Silva, but if there is some lingering disability, that is really caused by other problems other than the back, is our secondary submission.
Our third submission in relation to this incapacity argument is that she, in effect, had got almost back to full duties and was working in her full hours and, indeed, as at today, is working with Just Better Care for as many hours as she can do, and that is fair enough. While that work may not have quite the level of lifting, certainly when one looks at the rates of pay, it is a lot higher than your getting at the hospital, at the respondent’s premises.”
In her Reasons for Decision on 26 September 2007 the Arbitrator again summarised the issues in dispute in respect of the weekly benefits claim. She put it in this way:
“The issues in dispute in relation to the claim for weekly benefits are:
· For what period, if any, was the applicant partially incapacitated (1987 Act section 40)
· In respect of any partial incapacity for work:
(a) what is the amount which the applicant would probably have been earning but for the injury had she continued to be employed in the same or comparable employment? (1987 Act sections 40(2)(a), 42, 43)
(b) what is the average weekly amount the applicant is earning or would be able to earn in some suitable employment from time to time after the injury? (1987 Act sections 40(2)(b), 40(3), 42, 43, 43A (definition))”.
The Arbitrator directed her mind to the section 40(2A) issue. She noted at paragraph 46 of the Reasons for Decision “I note that the Respondent does not assert that the Applicant has unreasonably refused an offer of suitable duties”. The Arbitrator made no finding on the application of section 40(2A) which is entirely explicable on the basis that it was never argued before her.
Catholic Health seeks to raise on appeal a legal issue which was not argued before the Arbitrator, the question is should it be permitted to so.
The raising of fresh arguments on appeal was considered in Department of Corrective Services v Evans [2005] NSWWCCPD 58 (‘Evans’) where Deputy President Fleming stated:
“Secondly it would be unfair to allow a party to raise an issue on appeal, which was not argued before the Arbitrator. This is the legal principle applicable to proceedings in a court and, for essentially the same reasons, it is applicable in proceedings in the Commission. Review by a Presidential Member is not an opportunity for a party to re-litigate their case or to raise fresh arguments on appeal that were not raised at first instance (see Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP 6, where this principle was applied in a ‘tribunal’ appeal proceeding).”
The High Court set out the principle in Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 as follows:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The principle was applied by the High Court in Coulton v Holcombe (1986) 162 CLR 1 in relation to an appeal by way of rehearing. The Court held (per Gibbs CJ, Wilson, Brennan, and Dawson JJ) that:
“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish…”
As Deputy President Roche observed in Autohaus Five Dock Pty Ltd (wrongly sued as McMillan Prestige Pty Ltd) v Germanos [2007] NSWWCCPD 86:
“Proceedings before the Commission’s Arbitrators are not a ‘preliminary skirmish’ or a ‘trial run’. All issues should be properly and fully ventilated before an Arbitrator so that the opposing side has the opportunity to answer, either with evidence or submissions, the arguments and issues raised. A review is not a second hearing. In Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 (‘Mayne Group’) it was held at [39]:
‘A Presidential Member on appeal has a specific and limited role in the review of the decision of an Arbitrator. The review is not a rehearing, nor is the Presidential Member dealing with the matter de novo, nor is he or she arriving at a fresh decision based upon all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.’”
Clearly Catholic Health did not identify the section 40(2A) issue when the section 74 and section 287A notices were issued to Mrs Perkins, nor is it relied upon in its Reply. Furthermore no attempt was made at the outset of the proceeding to identify a section 40(2A) issue nor was it the subject of submissions to the Arbitrator. It is clear from the authorities as discussed above a party is bound by its conduct of the proceedings at first instance except in the most exceptional circumstances. Catholic Health has not pointed to any exceptional circumstances that would justify permitting it to argue an issue, on appeal, that was not relied upon at the arbitration. I am not satisfied that exceptional circumstances exist in this case. For these reasons the second ground of appeal fails.
If I am wrong in the application of the principles discussed in Evans, Mayne Group and Germanos, and Catholic Health were permitted to argue the section 40(2A) issue on appeal, I would, for the reasons set out below, reject that argument.
There is no dispute that the Worker sustained an injury during the course of her employment on 6 October 2005.
Liability was declined as of 29 March 2007 on the basis that the Worker was no longer incapacitated. Or, alternatively that she no longer suffered an injury within the meaning of section 4 of the 1987 Act or further in the alternative that her employment was no longer a substantial contributing factor to the injury.
After considering in some detail the medical evidence the Arbitrator made the following findings at paragraph 34:
“On the basis of this evidence, I find that the Applicant is partially incapacitated from 29 March 2007 (the date of the resignation) to the present and ongoing. I have accepted Dr Harget’s views as the treating doctor over Dr Silva, who saw the Applicant only twice and seems to put any problems down to ‘pre-existing conditions’ including excessive weight. I had the benefit of observing Mrs Perkins at the hearing and I note that her weight was recorded at 78kg. She did not appear excessively overweight and while it is true that she may benefit from the loss of some weight, I cannot accept that ‘excessive weight’ has in any way caused the problems with her back. Mrs Perkins has worked for 8 years in physically demanding work. She has pathology in her back as recorded by the MRI. There is no evidence that this pathology existed prior to her employment with the Respondent. I also note Dr Kafataris’ opinion Mrs Perkins ‘presents with significant lower back pain that is most likely discogenic based on her history and physical examination. Further investigation is required to clarify this…There is no prior history of lower back pain… It is noted that she has been performing the same duties for 7 years…She is now fit for a full shift of suitable duties. A lifting restriction of 7.5kg should apply and she should avoid any highly repetitive bending ie more than once every 5 minutes…”. I cannot accept that the work-related component of this condition has ceased because Dr Silva’s explanations of alternative causes are inconsistent between examinations and because Dr Harget and Dr Kafataris support the view that the condition is work related and continues. Dr Boundy’s views are tentative at best.”
The Arbitrator found that the Applicant was partially incapacitated from 29 March 2007 and that such incapacity was ongoing. I am of the view that the findings of the Arbitrator in relation to ongoing incapacity causally related to the Applicant’s work injury were open to her and demonstrate no error.
On 3 April 2007 Mrs Perkins resigned her employment with Catholic Health within days of having attended a meeting between herself and her husband, representatives of her employer, representatives of QBE and an OH&S consultant (see paragraph 4). The minutes of the meeting were in evidence before the Arbitrator. It was made clear to Mrs Perkins that permanently modified duties would not be made available to her at Catholic Health. On questioning by Mrs Perkins, Catholic Health would not commit to how long it was prepared to keep suitable duties open to her. Mrs Perkins inquired as to whether her employment would be terminated and was advised that her employment was not being terminated. It was hoped that suitable duties could eventually be upgraded over time enabling her to return to her pre-injury duties.
In evidence when questioned about her future employment options Mrs Perkins gave the following evidence at transcript page 12, line 35:
Q. Okay. At this meeting, was your future discussed at Bodington?
A. Yes.Q. And were you informed that the time had come that light duties were to be withdrawn?
A. Yes.Q. And you would be required to work full duties?
A. Yes, in approximately six weeks from that meeting they would speak to my doctor, get any restrictions that still had impetus and back to full-time normal duties in that six weeks.Q. And you - and I think they - you were also informed that Bodington Hospital does not have the facilities to provide light duties to people like yourself?
A. That's right.
When asked in evidence about the nature of the light duties required of her Mrs Perkins gave the following evidence at transcript page 13, line 14:
Q. Okay. So, just getting back to the meeting now, and, indeed, in the few weeks leading up to the meeting, how were you handling the work that had been given to you that was called light duties up to that stage?
A. I did my best to keep up with it but by the time I went home I was, like, totally exhausted. I didn't say no to lay down --Q. Yeah.
A. -- for an hour or so, yep.Q. Do you believe that they were truly light duties?
A. No.Q. Why not?
A. Because I was, like, nearly doing everything I was doing and I was expected to help other staff with their work as well.Q. All right. Is that involving, you know, moving elderly people from one place to another and so on?
A. Yes, yes.
In her letter of resignation dated 3 April 2007, Mrs Perkins stated that she felt that she had been pressured by the management of Catholic Health to resign due to her workers compensation claim and that pressure had been placed on her by management to resume normal assistant in nursing work as set out in her job description. She stated that she had been placed under considerable amount of physical and emotional stress and was expected to perform excessive work related duties due to staffing issues.
In cross-examination Mrs Perkins was asked why she had not waited that further six week period to see what actually eventuated. She said transcript page 18, line 43:
A. Well, I knew I couldn't go back to the actual job description, which was to be able to manage every client in my area. I knew I could never do that again. It was just impossible. It doesn't matter how many weeks it was going to take. I know I could never do that. And I felt like they were just dumping me, really, and I felt, well, there's no point staying for six weeks and killing myself with the work and going to get - saying, “Well, we haven’t got anything available for you. You know, you'll have to go find yourself somewhere else.” That's why I left.
As noted by the Arbitrator, Mrs Perkins was finding the work with Catholic Health difficult. The work, although described as light duties, was not really light and she often had to lie down for an hour to recover after a day’s work. She had lost the incentive to continue with this regime when she thought that she was going to be terminated in due course anyway. Clearly Mrs Perkins intended that this would not be the end of her working career. She has pursued various TAFE courses and took active steps to re-enter the workforce. She obtained work with her employer in July 2007. The work that she is currently doing does not involve the degree of lifting required at Catholic Health. She described her duties as mainly sitting, talking to patients, massaging their hands, playing cards and watching TV. She also assists patients to toilet, shower, helps them dress and drives them to appointments.
To invoke the provisions of section 40(2A) an assessment is required of the reasonableness of Mrs Perkins’ decision to resign her employment with Catholic Health while still being offered ‘suitable employment’.
An assessment of the reasonableness or otherwise of a worker’s conduct for the purposes of section 40(2A) will depend upon “all of the circumstances known to him and affecting him” (see Falzic v Milingimbi Community Inc (1982) 150 CLR 345; see also Freightcorp v Duncan [2000] NSWCA 309 and Metal Manufacturers Ltd v Gagovski [2006] NSWWCCPD 267).
The circumstances as known to Mrs Perkins at the time of her decision included a consideration that she had persisting back pain, that the ‘light duty’ work required of her with Catholic Health was causing her considerable distress physically, often requiring her to rest immediately after her work. She took into account a determination by her employer to persist with a rehabilitation programme in the hope that it would restore her to an ability to perform her pre-accident duties. It was made clear to Mrs Perkins that permanently modified duties would not be available to her at Catholic Health. She took into account her inability to continue with duties that required lifting and finally, the probability that in the absence of being restored to full health her employment would be terminated at some future point. With those factors in mind Mrs Perkins chose to resign her employment, to embark upon retraining through her TAFE courses and to obtain, relatively quickly, suitable alternative employment. In the circumstances I do not consider her resignation from her employment with Catholic Health as an unreasonable rejection of suitable duties such as to invoke the operation of section 40(2A).
I now return to the first ground of appeal, namely, that the Arbitrator erred in not taking into account the evidence that Mrs Perkins had been employed on a fulltime basis earning the same or more, than her pre-injury duties at the time she resigned her employment with Catholic Health. In paragraphs 39 – 50 of the Arbitrator’s Reasons she considered the issues relevant to the assessment of the Worker’s ability to earn for the purposes of an assessment under section 40(2)(b). At paragraph 41 the Arbitrator recognised that the Worker’s current earnings were not reflective of her ability to earn on the open labour market. She noted that at the time of her resignation Mrs Perkins had been certified capable of working 21 hours per week. She noted Catholic Health’s evidence that it was willing to work with Mrs Perkins and her treating doctor towards a return to full duties. The Arbitrator noted that there was no threat of immediate termination, but an expressed need to return to full duties as soon as possible. The Arbitrator noted that Mrs Perkins could have continued to work with Catholic Health for some time beyond 29 March 2007 until a further decision was taken about returning her to pre-injury duties. The Arbitrator then went on to consider other factors relevant to an assessment of the Worker’s ability to earn.
It is apparent from the Statement of Reasons that in assessing Mrs Perkins’ ability to earn the Arbitrator did consider the evidence that Mrs Perkins had been employed on a fulltime basis earning the same, or more, than her pre-injury duties at the time she resigned her employment with the Respondent. That factor was only one of the many that the Arbitrator considered. Her analysis reveals a careful and detailed consideration of the issues, the evidence and the legal principles involved and discloses no error. It follows therefore that the first ground of appeal also fails.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 26 September 2007 is confirmed.
COSTS
No order is made as to the costs of this appeal.
His Honour Judge Greg Keating, DCJ
President
20 February 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:Catholic Health Care Limited v Perkins [2008] NSWWCCPD 22R
APPELLANT: Catholic Heath Care Limited
RESPONDENT: Lynore Gay Perkins
APPLICANT FOR RECONSIDERATION: Lynore Gay Perkins
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC5125-07
DATE OF ARBITRATOR’S DECISION: 26 September 2007
DATE OF APPEAL DECISION: 20 February 2008
DATE OF RECONSIDERATION DECISION: 27 March 2008
SUBJECT MATTER OF DECISION: Reconsideration under section 350 of the Workplace Injury Management and Workers Compensation Act 1998; previous order in respect of costs.
PRESIDENTIAL MEMBER: President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION: Appellant: Leitch Hasson Dent
Respondent: Michael E Bradstreet
ORDERS MADE ON RECONSIDERATION:
1. The costs order made on 20 February 2008 is revoked.
2. The Appellant Employer is ordered to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE RECONSIDERATION
On 22 October 2007 Catholic Health Pty Ltd, the Appellant Employer (‘Catholic Health’) sought leave to bring an Appeal against Decision of an Arbitrator in the Workers Compensation Commission (‘the Commission’) against a decision dated 26 September 2007.
Leave to bring the appeal was granted and the matter was determined on the papers by me on 20 February 2008.
The appeal by the Employer was unsuccessful and the decision of the Arbitrator dated 26 September 2007 was confirmed.
No order was made as to costs of the appeal.
The Respondent Worker’s solicitor, by letter dated 26 February 2008 seeks a reconsideration of the order in relation to costs submitting that: “The Commission’s costs order does not follow the decision.”
By letter dated 3 March 2008 the Commission sought submission on the reconsideration application from the Appellant Employer’s solicitors.
The Appellant Employer has not filed any submissions in response to the above letter.
PRELIMINARY MATTERS
Section 354(6) of the Workplace Injury and Workers Compensation Act1998 (‘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.
THE RECONSIDERATION POWER
The Commission’s power to reconsider a decision of the Commission is found in section 350 of the 1998 Act which provides:
“350 Decisions of Commission
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not:(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The Commission has a wide discretionary power to reconsider previous decisions. In exercising its reconsideration powers the Commission has a duty to do justice between the parties according to the substantial merits of the case (see Samuel v Sebel Furniture Pty Ltd [2006] NSWWCCPD 141).
The Applicant Worker submits that it is appropriate to invoke the Commission’s reconsideration power in so far as they relate to the costs orders previously entered as those orders fail to follow the conventional course of following the event.
Having regard to the Worker’s submissions I am persuaded that it is appropriate to invoke the Commission’s reconsiderations powers to consider the previous costs order.
RECONSIDERATION OF COSTS ORDER
In the proceedings before the Arbitrator the Applicant Worker sought an order for the payment of weekly compensation from 10 July 2007, together with medical expenses and lump sum compensation. The Application was resisted. The matter was determined by an arbitrator of the Commission in favour of the Worker.
An appeal from the decision of the Arbitrator was heard by me on the papers and determined on 20 February 2008. The appeal was unsuccessful and the decision of the Arbitrator dated 26 September 2007 was confirmed. The Respondent Worker on the appeal, Ms Perkins argues that in those circumstances the cost ought to follow the event and the Appellant Employer, Catholic Health, be required to pay her costs on appeal.
In Oshlack v Richmond River Council, McHugh J [at 97] reiterated the longstanding rule that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. His Honour said:
“The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd (1951) 1 ER 873 at 874, Devlin J formulated the relevant principle as follows:
‘No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.’”
I have considered the conduct of the parties in the litigation and the submissions of the parties on the reconsideration application. I see nothing in the conduct of the Respondent Worker, Ms Perkins that would justify an order depriving her of her cost of the appeal.
DECISION
The costs order of 20 February 2008 is revoked.
The Appellant Employer, Catholic Health Care Ltd is to pay the Respondent Worker’s costs of the appeal.
His Hon. Judge Greg Keating
President
27 March 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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