Christian Community School Limitedv Airs

[2014] NSWWCCPD 15

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Christian Community School Limitedv Airs [2014] NSWWCCPD 15
APPELLANT:	Christian Community School Limited
RESPONDENT:	Roslyn Airs
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-682/13
ARBITRATOR:	Mr Robert Foggo
DATE OF ARBITRATOR’S DECISION:	26 November 2013
DATE OF APPEAL DECISION:	25 March 2014
SUBJECT MATTER OF DECISION:	Admission of fresh or additional evidence; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; challenge to factual findings; partial incapacity; ability to earn; s 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Stacks/The Law Firm
ORDERS MADE ON APPEAL:	1.       The determination and orders found in the Certificate of Determination dated 26 November 2013 are confirmed. 2.       The appellant is to pay Ms Airs’ costs of this appeal as agreed or assessed.

BACKGROUND

1. Ms Roslyn Airs commenced employment as a secondary English/History teacher with Christian Community School Limited (the appellant) in 1997. On 9 March 2005, Ms Airs was injured when struck by a motor vehicle in the appellant’s car park at the completion of her days’ teaching. There is no dispute that the injury received was compensable.

2. Ms Airs suffered a significant injury to her left leg involving a crush injury of the knee joint, laceration in the area of that knee and a degloving injury to her left calf. Ms Airs was conveyed by ambulance to Liverpool Hospital where she received surgical treatment involving repair of the laceration and soft tissue injuries. Ms Airs was discharged from hospital on 12 March 2005 and returned to work, initially on selected duties, very soon thereafter.

3. Ms Airs continued to suffer pain and disability in her left leg and on 25 October 2005 she underwent an arthroscopy and chrondoplasty at the hands of Dr George Kirsh, orthopaedic surgeon. Thereafter, following a short convalescence, it seems that Ms Airs returned to employment.

4. On 25 January 2006, Ms Airs underwent surgical revision of scar tissue at the site of the injury at the hands of Dr Leana Teston, plastic and reconstructive surgeon. Ms Airs again returned to work after a short convalescence. The appellant’s workers compensation insurer accepted liability in respect of Ms Airs’ absences from the workplace and paid medical expenses incurred up to that time.

5. At the end of the 2006 school year, Ms Airs retired from the workforce. Ms Airs had given notice of her intention to retire to the appellant by letter dated 14 July 2006. No mention of the injury was made in that correspondence. Following her retirement, Ms Airs relocated to Mudgee, NSW, where she presently resides.

6. In September 2012 a claim was made on behalf of Ms Airs by her solicitors against the appellant and its insurer, seeking payment of weekly benefits from 1 January 2007 to date and continuing. In October 2012 the appellant, through its insurer, disputed that claim and a notice concerning such dispute was issued and served in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

7. Proceedings were commenced by Ms Airs in the Commission by the filing of an Application to Resolve a Dispute in December 2012. The matter came before Arbitrator Robert Foggo for conciliation /arbitration on 4 November 2013. The matter proceeded to arbitration and the Arbitrator reserved his decision. On 26 November 2013 the Arbitrator issued a Certificate of Determination which was accompanied by a Statement of Reasons. The orders made, as found in that certificate, are as follows:

   “The Commission determines:

1.       The respondent is to pay the applicant weekly payments of compensation from 1 January 2007 to 31 December 2012 at the maximum statutory rate for a worker with no dependents.

2.       The respondent is to pay the applicant's costs as agreed or assessed. I certify that this is [sic, is a] complex matter and that both parties are entitled to an uplift for complexity of 10%.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

1. The appellant has particularised a number of “grounds” of appeal which were, in one respect, expanded in supplementary submissions filed on 7 February 2014. It must be said that those grounds do not identify with precision the errors which are said to have affected the Arbitrator’s decision. The submissions which accompany those grounds constitute a generalised complaint concerning the Arbitrator’s approach to the evidence and as to his conclusions. It is not made clear as to which particular ground is addressed by individual submissions. Those submissions also appear to be an elaboration of argument put to the Arbitrator and, in some instances, raise matters not advanced in argument at the arbitration hearing. The flawed approach to formulation of grounds is plainly demonstrated at [9(f)] immediately below.

2. It appears that the appellant suggests the following errors:

   (a)     permitting Ms Airs to give oral evidence at the hearing (ground one);

   (b)     failing to take into account all the evidence (ground two);

   (c)     making assumptions concerning the documentary evidence (ground three);

   (d)     accepting medical evidence tendered by Ms Airs (ground four);

   (e)     determining that Ms Airs had a capacity to earn $300 per week (ground five), and

   (f)      in “coming to the wrong conclusion in that [the Arbitrator] ignored overwhelming evidence from other medical examiners not referred to by [the Arbitrator] which had he done so, would have resulted in a different decision” (supplementary submissions at 2.8.2) (ground six).

PRELIMINARY MATTERS

1. There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

1. 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.”

2. Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

FRESH EVIDENCE

1. The appellant, in its supplementary submissions, seeks to rely upon, what is described as, “new evidence”. It may be assumed that the appellant seeks leave to adduce fresh or additional evidence pursuant to s 352(6) of the 1998 Act which provides:

   “(6)  Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”

2. The evidence which the appellant seeks to tender on this appeal is a report of Dr John Bosanquet, consultant orthopaedic surgeon, dated 12 September 2013. That report was prepared by Dr Bosanquet following an examination of Ms Airs arranged by the appellant’s solicitors. I note that Dr Bosanquet had earlier examined Ms Airs, as had been arranged by the appellant’s insurer, following which a report dated 21 February 2012 was prepared and forwarded to the insurer.

3. Ms Airs opposes the granting of leave as sought by the appellant. That opposition arises notwithstanding the fact that, at the hearing before the Arbitrator, Ms Airs was permitted, over the objection of the appellant, to tender Dr Bosanquet’s report dated 21 February 2012 in her case. I note that supplementary submissions filed very recently by Ms Airs assert, wrongly, that the February report was tendered by the appellant (refer T1.27-35 where the tender by Ms Airs is recorded).

4. The circumstances concerning Dr Bosanquet’s evidence is further complicated given that the appellant, on 1 November 2013, filed an Application with the Commission seeking leave to tender both reports of Dr Bosanquet as late evidence. That Application, which had the reports in question attached to it, had been served upon Ms Airs’ solicitors. When the matter came on for hearing on 4 November 2013 the only application made concerning Dr Bosanquet’s evidence was that made by Ms Airs referred to immediately above. It seems that counsel appearing on behalf of the appellant before the Arbitrator had overlooked the necessity to pursue the application relating to the late tender of Dr Bosanquet’s evidence. Submissions which are made on this appeal suggest that “the appellant employer believed the further report dated 12 September 2013 was also admitted into evidence”. It is also asserted by the appellant, rather confusingly, that “the appellant employer sought to rely on the further report of Dr Bosanquet. However, it would appear that the further report was inadvertently not admitted in to evidence”.

5. The transcript of proceedings before the Arbitrator does not record any application being made on behalf of the appellant concerning Dr Bosanquet’s second report. Any suggestion found in the submissions made on this appeal that the Arbitrator was in some manner inadvertent, must be rejected. It is reasonably clear that the report did not find its way into evidence simply because no application was made before the Arbitrator seeking the late admission of Dr Bosanquet’s evidence.

6. The appellant’s application has little merit. It is self-evident that Dr Bosanquet’s second report was available at the time of the hearing. The unexplained failure to make application before the Arbitrator concerning admission of Dr Bosanquet’s report does not afford a basis upon which the evidence may be admitted as additional evidence on appeal. Because of the unusual circumstances and notwithstanding the lack of merit of the application as put in submissions, there is a feature of the evidence that, in my opinion, requires that the report be admitted. Dr Bosanquet had been qualified by the appellant to provide an opinion for presentation as evidence in the proceedings. Ms Airs has elected to tender part of the evidence of Dr Bosanquet, and the report dated 21 February 2012 is before the Commission. It is my view that there is a risk, should the additional evidence not be admitted, that the Commission might be misled as to Dr Bosanquet’s ultimate views concerning matters in issue. Its absence would also prevent proper adjudication of the complaint made concerning the Arbitrator’s manner of dealing with that witness’s evidence.

7. It is for these reasons that I conclude that failure to grant leave to tender the report would cause substantial injustice. Accordingly I grant leave to the appellant to tender the report of Dr Bosanquet dated 12 September 2013 as additional evidence on this appeal.

ARBITRATOR’S DETERMINATION

1. The Arbitrator noted that the parties had reached agreement that the undermentioned issues were in dispute:

   “(a)Did [Ms Airs] retire from teaching with effect from 16 December 2006 for reasons other than her injuries suffered on 9 March 2005?

   (b)     Was [Ms Airs] fit for her pre injury duties from 16 December 2006?”

2. The Arbitrator noted that he had granted leave to Ms Airs to give evidence “of her current condition in respect of the injuries she suffered on 9 March 2005”. The Arbitrator’s reason for granting that leave was stated as being “the lack of contemporaneous [sic] medical opinion”.

3. The Arbitrator proceeded to deal with the circumstances of Ms Airs’ resignation. He found that Ms Airs was “a very impressive witness” and he stated that he accepted her evidence, both oral and written, “in its entirety”. The Arbitrator accepted Ms Airs’ evidence that she made no reference to the subject accident in her letter of resignation, given that the school was well aware of the injury and that the letter “reflected her way of giving [a] friendly farewell” following nine years of service.

4. The Arbitrator made reference to aspects of the expert medical evidence before him and noted that the appellant had not tendered the report of Dr Bosanquet which related to the examination of Ms Airs in September 2012. He stated: “I find that it is unnecessary to make the almost irresistible inference that the reason that this report was not served was because it assisted [Ms Airs’] case and may have expressed an opinion about [Ms Airs’] ability to work as a teacher”.

5. The Arbitrator found that Ms Airs “is a highly motivated teacher who has cajoled her general practitioner into certifying her fit for employment so she could not just work from home but get back to full-time work, despite the pain that this caused her”. The Arbitrator found further that, having regard to Ms Airs’ “oral evidence, medical opinion and [Ms Airs’] commitment to her profession” the subject injury was the cause of her “tendering her resignation”. The Arbitrator further found that Ms Airs’ “reason for her resignation was her inability to physically continue with her work as a teacher”.

6. The Arbitrator proceeded to consider whether Ms Airs was “fit for her pre-injury duties as at 16 December 2006”. Reference was made to medical certificates dated 31 March 2005, 16 April 2005 and 13 May 2005, each of which certified Ms Airs as being fit for pre-injury duties, such fitness commencing on 5 April 2005.

7. A finding (at [16]) was made by the Arbitrator that:

   “… it seems abundantly clear that [Ms Airs] did return to work before it was medically advisable and did so because of her concern of [sic] the effect of her absence on her students and her colleagues.”

8. The Arbitrator rejected the content of the medical certificates as to capacity for pre-injury work. That rejection was founded upon the evidence of Dr Alan W Searle, consultant orthopaedic surgeon. The Arbitrator noted that Dr Bosanquet did “not address” the question of capacity for work as a teacher.

9. The evidence of Dr Searle that “[Ms Airs] is medically incapable of performing her duties as a teacher” was accepted by the Arbitrator as was the evidence of Ms Airs concerning incapacity for work.

10. The Arbitrator proceeded to consider the question as to the extent of Ms Airs’ incapacity. He accepted that, given her past vocational experience, she “does have some capacity to do clerical work”. That capacity, having regard to “her age, the extent of her disabilities…and her present geographic location…would be, at most, in the vicinity of $300 a [sic] week” (at [22] of Reasons).

11. It was noted by the Arbitrator that there were “undisputed comparable [sic] earnings of $1,255 per week” and that Ms Airs was “entitled to an award of weekly payments of compensation from 1 January 2007 to 31 December 2012 at the maximum statutory rate for a worker with no dependants (at [23] of Reasons). Orders were then made in accordance with those findings.

THE EVIDENCE AS TO INCAPACITY

1. In a written statement made on 11 December 2012 Ms Airs described the circumstances of the subject injury and her subsequent medical treatment. After the surgical treatment received in October 2005 and January 2006 Ms Airs, it is stated, had periods of time off work following which she “had a graded return to duties”. It was further stated that at the end of 2006 Ms Airs “ceased teaching altogether. [She had] not worked since”.

2. Ms Airs proceeded to describe certain difficulties she encountered when teaching after the injury which included “standing for long periods, doing sport, moving around the school particularly if it involves walking up and down lots of stairs and out of school activities such as excursions and camps”. Ms Airs further stated that “had it not been for this accident I would have remained in teaching full time until normal retirement age at 65 years”. It is revealed in other evidence that Ms Airs was born in 1950.

3. In her oral evidence Ms Airs stated that since her resignation from employment with the appellant her left leg condition had changed “for worse”. Ms Airs confirmed her consultation with Dr Bosanquet in February 2012 at which time that practitioner recorded problems she had experienced with her right hip and right knee. Ms Airs stated that, as advised by Dr Bosanquet, she had taped her left knee.

4. Ms Airs further stated in evidence that she experienced pain “quite frequently” and that she would be unable to return to teaching in her current state.

5. When cross-examined before the Arbitrator, Ms Airs stated that she and her husband had purchased a property in Mudgee in 2004 with the intention of retiring there “much further down the track”. She agreed that she had sent a letter to the principal of the appellant giving notice of her intention to retire at the end of 2006. That letter, dated 14 July 2006, tendered by the appellant was identified by Ms Airs. That letter made no reference to the subject injury.

6. In re-examination Ms Airs stated there was no reference to the injury in the correspondence as “they’re very aware” and that the letter was “a way of – a friendly farewell.”

7. Dr Searle’s report, dated 23 September 2012, was tendered on behalf of Ms Airs. Dr Searle examined Ms Airs at the request of her solicitors. Dr Searle recorded the history of the injury and noted that, following Dr Kirsch’s operative treatment in October 2005, Ms Airs had undergone physiotherapy treatment and noticed improvement in her knee, but “continued to have swelling in the back of her knee”. That caused difficulty flexing her knee and she was referred to a plastic surgeon, identified in other evidence as Dr Teston, who on 25 January 2006 revised the scar and removed the swelling. Ms Airs stated, as recorded by Dr Searle, that she:

   “…returned to work as soon as possible after the accident, and she thinks she went back sooner than she should have done because she felt a responsibility to the staff and she went back to school as soon as she could manage stairs. She went back full time and undertook full duties apart from playground duties. Subsequently she did not take any more time off work and continued full time full duty until she retired at the end of 2006.”

8. Dr Searle also recorded that Ms Airs had developed pain on the lateral aspect of the right hip diagnosed as bursitis which, it was suggested, “had been brought only [sic, on by]  her limp”.

9. Following conduct of a physical examination and consideration of investigations, Dr Searle described the left knee injury and treatment and concluded that “severe damage to the joint was demonstrated”. Dr Searle also stated his opinion that:

   “Suppressing the use of the left leg caused some overuse effects on the right side leading to the development of arthritic changes in the right knee as well particularly in the patello-femoral joint though the symptoms seem to be reasonably controlled by conservative measures. This overuse may also have caused some light trochanteric bursitis to develop though this is less definite.”

10. Dr Searle expressed the view that Ms Airs is “…now permanently unfit for activities, including work which require being on her feet a lot of the time, going up or down steps or stairs or slopes frequently, kneeling or squatting, carrying weights, or having unusual agility”. His prognosis was that there would be a “gradual increase in the symptoms and disability with the passage of time, occurring mainly in the left knee but also on the right side”. Total left knee replacement will, it was said, be required in future.

1. Ms Airs relied upon a report of Dr Bosanquet dated 21 February 2012 addressed to the appellant’s insurer. As earlier noted Dr Bosanquet had been qualified by the insurer to provide an opinion concerning Ms Airs’ claim. It is noteworthy that Dr Bosanquet had been provided with a large number of reports including multiple reports from Dr Teston and Dr Kirsch. No evidence from these treating practitioners is before the Commission. Dr Bosanquet’s report does not address the question of Ms Airs’ capacity for work. Dr Bosanquet considered that a total knee replacement would be required in future, but that such procedure should be deferred for as long as possible.

2. The appellant placed reliance upon the contents of a number of medical certificates issued by those practitioners treating Ms Airs. A certificate issued by Dr Mistry dated 16 April 2005, certified that Ms Airs was fit for pre-injury duties from 15 April 2005. There is also a certificate issued by an unidentified practitioner, dated 10 February 2006, which states that Ms Airs was fit for pre-injury duties as at that date. On 28 February 2006 Dr Teston certified Mr Airs fit for per-injury duties.

3. A copy of Ms Airs’ letter of notice given to the appellant concerning her retirement, dated 14 July 2006, is in evidence. That letter, as accepted by Ms Airs in her oral evidence, made no reference to the subject injury.

4. The additional evidence admitted on this appeal, a report of Dr Bosanquet dated 12 September 2013, relates to a second examination of Ms Airs in that month. Dr Bosanquet diagnosed a “crush injury left knee, aggravation underlying osteoarthritis”. Responses to questions put to Dr Bosanquet included the following:

   “4. Your opinion as to whether the worker would, but for the injury, have been able to continue working as an English History Teacher and also with her duties as the English Co-ordinator.

   It is my opinion that Ms Airs would have been able to continue working as an English/History Teacher and also with her duties as English Co-ordinator had she not sustained this injury on 09/03/2005.

   5. If you are of the view the worker would be unable to work as a high school teacher, what other occupations do you believe the worker would be fit to perform, given her qualifications.

   Ms Airs would be well suited to a sedentary type occupation with her qualifications. This would be a desk type job involving supervision, computer work, marking papers etc. It is important that she avoids prolonged standing, climbing stairs, kneeling, squatting and prolonged walking.

   6. Your opinion as to whether you believe the worker suffers any incapacity for work and if so, what restrictions would you place upon her capacity for work, bearing in mind her vocation as a teacher.

   Presumably, she would have been able to sit and stand at will in her position as a high school teacher.

   As stated above, Ms Airs is able to work but should avoid any situation where there is prolonged standing, walking, climbing stairs and ladders, kneeling and squatting. It is a fact that as a teacher, she would have been able to sit and stand at will in her position as a high school teacher but this would not always have been the case and she was also involved in playground duties and outings.” (emphasis included in original)

SUBMISSIONS, DISCUSSION AND FINDINGS

1. This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):

   “An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

2. The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):

   “On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

   Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

3. It is apparent, having regard to the evidence and the tenor of submissions put before the Arbitrator that the appellant, when rejecting the claim made in 2012, considered that Ms Airs had drawn a long bow in claiming payment of past and ongoing weekly compensation six years after retirement from her profession. The issues said by the parties to be in dispute as recorded by the Arbitrator (noted at [20] above) were factual questions which the parties agreed needed determination. However, that formulation of the issues appears merely to reflect the manner in which the appellant had assessed the claim. The real issue before the Arbitrator was the question whether, as at January 2007 and thereafter, Ms Airs was partially incapacitated for work as a result of the subject injury.

4. That last question was answered by the Arbitrator, notwithstanding the paucity of evidence and the brevity of argument advanced, in Ms Airs’ favour. The question which arises on this appeal is whether that decision was made in error. It is proposed to address the grounds raised with a view to determining whether error has been made out, and whether any error that may be established has affected the Arbitrator’s determination of the dispute.

Ground One

1. Complaint is made that the Arbitrator has erred “in allowing [Ms Airs] to give oral evidence”. As earlier noted at [21] above, leave to adduce that evidence was granted by the Arbitrator, given the “lack of contemporaneous medical opinion”. It is reasonably clear that what was meant by the Arbitrator in so stating was that there was no up to date evidence as to her physical condition. The leave granted was, as sought, limited to evidence of Ms Airs’ then “current condition”. The only submissions put concerning this alleged error is that it constitutes an “error of discretion” and that the granting of leave had “placed the appellant at a disadvantage”.

2. It seems that the appellant asserts that it has, as a result of leave being granted, been prejudiced. That prejudice has not been identified. What is clear is that Ms Airs’ evidence conformed to the terms in respect of which leave had been granted. It is of significance that none of the subsequent cross examination was directed to matters stated by Ms Airs in her evidence in chief. Counsel for the appellant took the opportunity to cross examine Ms Airs concerning her retirement and the notice she gave to the principal of her intention to cease work in December 2006.

3. I reject the suggestion raised in argument that the appellant had been disadvantaged, or in any way prejudiced, by the Arbitrator’s grant of leave to adduce oral evidence. I am also of the view that the appellant has failed to establish that the Arbitrator, in granting leave, had, as stated in House v King [1936] HCA 40; 55 CLR 449 (per Dixon, Evatt and McTiernan, JJ, at 505), acted upon a wrong principle or had allowed extraneous or irrelevant matters to guide or affect him, or, mistaken the facts or failed to take into account some material consideration when such leave was granted. Ground one must be rejected.

Ground Two

1. Error is asserted being failure to refer to or take account of all the evidence. In submissions, the appellant complains that the Arbitrator had only referred to some of the medical certificates which were in evidence. The appellant correctly asserts that the Arbitrator did not make reference to three medical certificates which appeared at pages 18, 19 and 20 of the Reply. The certificate of Dr Teston dated 28 February 2006 stated that Ms Airs was fit for pre-injury duties. The certificate issued, on 3 March 2008, by Dr Mistry includes a notation under “Fitness for Work” that Ms Airs had been “retired since December 2006”. Dr Hearn’s certificate dated 1 September 2010 states, under “Fitness for Work”, that “an assessment of workplace duties is not required”.

2. Submissions which seem to relate to this ground appear to suggest that failure to refer to all the medical certificates in evidence had led the Arbitrator to erroneously conclude that Ms Airs had “cajoled her general practitioner into certifying her fit for employment so that she could…get back to full time work…”.

3. I consider that the evidence does not support the inference drawn by the Arbitrator that the general practitioner had been “cajoled”. In drawing that inference, the Arbitrator has, in my view, erred. The submissions do not clearly state how, or in what respect, that error has affected the Arbitrator’s determination of the dispute.

4. What is clear is that the Arbitrator accepted that, notwithstanding the content of the certificates noted by him, Ms Airs had, as she reported to Dr Searle, returned to work “sooner than she should have done because she felt a responsibility to the staff and she went back to school as soon as she could manage stairs”. That reported statement and the medical certificates are the only evidence relevant to Ms Airs’ state of health at the relevant time.

5. The evidence of Dr Searle includes recorded history that Ms Airs returned to full duties “apart from playground duties”. That unchallenged fact demonstrates that Ms Airs, notwithstanding her return to work, was unable to perform all the duties required of her. Her complaints of difficulty performing teaching duties concerned those matters mentioned (at [18]) in her statement dated 11 December 2012. That evidence, which was accepted by the Arbitrator, taken together with the Arbitrator’s acceptance of the evidence of Dr Searle, permitted the ultimate conclusion reached that partial incapacity had resulted from the subject injury. That is so notwithstanding the omission to refer to the later medical certificates. In those circumstances, that omission and the unwarranted and erroneous finding concerning “cajoling” of the general practitioner cannot be said to have relevantly affected the Arbitrator’s decision. Ground two fails.

Ground Three

1. Error, being “making assumptions in relation to the documentary evidence”, is asserted in this “ground”. I have earlier addressed the “assumption” that Ms Airs had “cajoled” the general practitioner. There are no other submissions which appear relevant to this suggestion of error, and ground three must be rejected.

Ground Four

1. It is said that the Arbitrator has erred in “accepting medical evidence tendered by Ms Airs”. There can be no doubt that the “medical evidence” here referred to is that of Dr Searle. The argument, such as it is, seems to be that error is demonstrated by the Arbitrator’s acceptance of that evidence “obtained six years after [Ms Airs’ retirement]”. That submission seems to suggest that the evidence of Dr Searle, having come into existence years after the commencement of the claim, would have little, if any, weight. That argument was not put to the Arbitrator at the hearing.

2. The difficulty confronting the appellant concerning this “ground”, leaving aside the fact that the weight of Dr Searle’s evidence had not been touched upon before the Arbitrator, is that the evidence of Dr Searle supports the Arbitrator’s finding as to partial incapacity and was evidence open to acceptance by him. The question as to what weight that evidence was to be given was one for the Arbitrator. His acceptance of the persuasive nature of Dr Searle’s evidence demonstrates no relevant error.

3. It is important to note that the additional evidence admitted on this appeal, as may be seen from extracts of Dr Bosanquet’s report noted at [44] above, affords further support for the proposition that, by reason of the subject injury, Ms Airs had become partially incapacitated for work. Whilst the evidence concerning incapacity is scant, I consider that the appellant may not complain of the Arbitrator’s acceptance of Dr Searle’s evidence. Ground four is rejected.

Grounds Five and Six

1. It is asserted that the finding made by the Arbitrator that Ms Airs had the capacity to earn $300 per week was made in error. That finding was relevant to the Arbitrator’s determination concerning Ms Airs’ entitlement to weekly compensation pursuant to s 40 of the 1987 Act in respect of partial incapacity. Submissions appear to suggest that, having regard to the evidence from Dr Bosanquet concerning Ms Airs’ work capacity, the Arbitrator erred “in finding [Ms Airs] was unable to fully perform her duties as a school teacher or that she was unable to do clerical work on a full time basis”.

2. The task before the Arbitrator was to determine any entitlement Ms Airs may have to weekly compensation, between 1 January 2007 and 31 December 2012, as claimed, following amendment of the application before the Arbitrator. Argument advanced on behalf of the appellant before the Arbitrator concerning this issue may, in my view, be described as rudimentary. It was argued that regard should be had to Dr Bosanquet’s evidence, the evidence of “pre-existing degenerative change” and the absence of any evidence “to suggest that [Ms Airs] has attempted to obtain any form of employment since she retired at age 63 [sic, 56]”. As to quantum of any s 40 award, it was put that the Arbitrator should “discount that award heavily in favour [sic] of a small portion of the single statutory rate for a single [sic, single worker].”

3. The Arbitrator’s findings concerning weekly entitlement are summarised at [29] and [30] above. Those findings, having regard to the factual circumstances generally and particularly the length of the period (six years) during which the claim was made, were made following very brief consideration of the evidence. There has, however, been no suggestion made in submissions on this appeal that the Arbitrator’s Reasons were relevantly deficient, merely that his conclusion was wrong.

4. Essential findings as required by the terms of s 40 had been made by the Arbitrator in accordance with those matters stated by the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526. That is, there has been a determination of Ms Airs’ ability to earn and her probable earnings but for injury. Any omission to address the question of discretion has not been raised on this appeal. I have reached the view that notwithstanding the economy of expression of the Arbitrator’s reasoning, the appellant’s suggestion of error should be rejected. Ground five is rejected.

5. The sixth ground suggests that the Arbitrator’s conclusions, presumably as to incapacity for work as a teacher, were against the evidence. I have earlier summarised the evidence as to incapacity and have noted that which was accepted by the Arbitrator. As earlier stated, that acceptance does not demonstrate any relevant error and ground six must be rejected.

CONCLUSION

1. Each of the grounds relied upon by the appellant have been rejected. In the circumstances, the determination of the Arbitrator should be confirmed. Appropriate orders appear below.

DECISION

1. The determination and orders found in the Certificate of Determination dated 26 November 2013 are confirmed.

COSTS

1. The appellant is to pay Ms Airs’ costs of this appeal as agreed or assessed.

Kevin O'Grady
Deputy President

25 March 2014

I, KATHRYN CAMP, 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