Clarence River Fisherman's Co-operative v Swain
[2008] NSWWCCPD 2
•8 January 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Clarence River Fisherman’s Co-operative v Swain [2008] NSWWCCPD 2
APPELLANT: Clarence River Fisherman’s Co-operative
RESPONDENT: Fraser Henry Swain
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC4764-07
DATE OF ARBITRATOR’S DECISION: 20 September 2007
DATE OF APPEAL DECISION: 8 January 2008
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; weight of evidence.
PRESIDENTIAL MEMBER: President Keating, DCJ
HEARING:On the papers
REPRESENTATION: Appellant: Mulcahy lawyers
Respondent: Thompson Wheelahan & Hampshire
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 20 September 2007 is revoked and the following orders are made:
“1.The Respondent to pay the Applicant, Fraser Swain weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 at the rate of:
a)$131.00 per week from 22 January 2007 to 15 July 2007, and
b)$131.00 per week from 30 July 2007 to date and continuing.
2. Award for the Respondent in respect of the claim for weekly compensation payments for the period 16 July 2007 to 29 July 2007.
3. The Respondent to pay the Applicant’s cost.”
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 27 September 2007 the Clarence River Fisherman’s Co-operative (‘the Appellant/the Co-op’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 20 September 2007.
The Respondent to the Appeal is Mr Fraser Swain (‘Mr Swain/the Worker’).
Mr Swain is a 36-year-old fish filleter who, after leaving school had no further formal education or training. He worked as a general hand with the Co-op from October 1999 to November 2004. His duties mainly involved the filleting and preparing of fish. Prior to working at the Co-op, he worked for six months as a security officer, from 1991 to 1999 he was a self-employed handyman and before that he worked as a general labourer for various employers from school leaving in 1986 to 1990.
Mr Swain claims to have suffered injury on 25 August 2004 in the form of carpel tunnel syndrome and trigger finger of the 2nd and 4th fingers of the left hand and the 2nd finger of the right hand. The mechanism of injury is described as “[c]onstant repetition of finger use at work.” He first developed symptoms of pain and tightness in the right and left index and ring fingers and by July 2004 he experienced elbow pain and reduced grip strength of the left hand and later developed burning and parasthesia in all fingers whilst working.
On 21 October 2004 Mr Swain underwent a right carpel tunnel release and release of the right index finger and on 13 January 2005 he underwent a left carpel tunnel release.
Mr Swain ceased work with the Co-op in November 2004. The evidence does not reveal the circumstances under which his employment came to an end, except it is noted in the rehabilitation reports that he was unable to continue fish filleting. Mr Swain worked from 5 August 2005 to sometime in October 2005 driving plant equipment at Smiths Plant Hire Pty Ltd, for four days stacking timber at a timber yard at Fords Timbers Pty Ltd, one week of a four-week work trial at a promotional printing company, Annagraphics Design in Brisbane, stacking mugs into a kiln and for a two-week period driving a tractor with GPS navigation for North Coast Agroforestry Pty Ltd.
Mr Swain’s claim was accepted and QBE Workers Compensation NSW Limited (‘QBE’), the workers compensation insurer for the Co-op and compensation payments for weekly benefits for all periods of incapacity were met by QBE until notice was given under section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’), that compensation payments would be reduced to nil from 22 January 2007 on the basis that Mr Swain had an ability to earn in excess of his probable weekly earnings.
On 28 June 2007, Mr Swain filed an Application to Resolve a Dispute in the Commission claiming weekly compensation at a rate of $498.99 per week from 22 January 2007 to date and continuing. The Co-op lodged a reply on 13 July 2007 confirming that the dispute was in accordance with the section 54 notice.
The parties were unable to settle the dispute and the matter proceeded to an arbitration hearing in Grafton on 6 September 2007. Both parties were represented and Mr Swain gave evidence and was cross-examined. At the conclusion of the hearing the Arbitrator gave an ex tempore decision and on 20 September 2007 the Certificate of Determination was issued. The Arbitrator’s reasons are contained in a transcript, a copy of which has been provided to the parties.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 20 September 2007 records the Arbitrator’s orders as follows:
“That the determination of the Commission in this matter is as follows:
1. The Respondent will pay the Applicant the sum of $150 per week from 22 January 2007 to date and continuing.
2. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are that:
1.“the Arbitrator erred in his application of s. 40(2)(b) of the Workers Compensation Act 1987 in determining the average weekly amount that the worker would be able to earn in some suitable employment was limited to 23 hours per week.” and
2.“the Arbitrator’s decision is against the weight of evidence relied on by both the Appellant Employer and Respondent Worker and against the evidence preferred by the Arbitrator and was affected by legal, factual and discretionary error.”.
REVIEW
A Presidential member’s powers in conducting a review pursuant to section 352 of the 1998 Act, were discussed in The King Island Company Limited v Deery [2005] NSWWCCPD 1. Byron DP said:
“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.” (at [19])
In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, it was confirmed that the review process was broader than correction of error of the kind identified in House v The King. Bryson JA said at:
“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.”
McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] quoted this passage with approval in holding that it was “an over-generalisation” 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” (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 appeal it must be demonstrated that the decision 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; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both 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.
Neither party seeks to rely on fresh evidence on the appeal.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Certificate of Determination was issued dated 20 September 2007 and the Application to Appeal was lodged with the Commission on 27 September 2007. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue in the appeal exceeds $5000.00 prescribed by section 352(2) and the whole of the amount of the sum awarded is appealed against, and therefore the thresholds in section 352(2) are satisfied.
Leave to appeal is granted.
EVIDENCE
The primary dispute between the parties at the arbitration hearing was Mr Swain’s ability to earn post injury and whether he was entitled to compensation pursuant to section 40 on the basis of a partial incapacity for work.
Mr Swain relied on the report of Dr Miller, specialist surgeon who prepared a report dated 22 January 2007 at the request of Mr Swain’s solicitors. Dr Miller obtained a history that Mr Swain filleted 2,500 fish per day at the Co-op. The doctor concluded that as a direct result of his work, particularly the manual repetitive activities, Mr Swain developed non-specific tenosynovitis affecting both carpel tunnels and the right index finger. He concluded that Mr Swain was not fit to return to his pre injury work and may require retraining and should re - enter the work force in a more sedentary capacity. He noted that post injury Mr Swain had obtained work driving a tractor which he could manage satisfactorily, but that he had aggravated the problems in his left wrist and right index finger whilst working stacking timber.
Dr Ashwell, treating orthopaedic surgeon, prepared a number reports dated from 2 September 2004 to 26 July 2006. These reports record the doctor’s diagnosis of carpel tunnel syndrome and trigger finger, the investigations and surgery performed. Dr Ashwell opined that from 25 January 2005, Mr Swain was not fit to return to his pre injury duties at the Co-op. He certified the worker fit for suitable duties from 6 March 2005 for two months. In the report dated 6 December 2006 the doctor certified Mr Swain as fit for suitable duties and full work hours and that he should avoid repetitive activities with his hands and avoid lifting weights greater than 15 kilograms.
Dr Ashwell’s report dated 26 June 2006 refers to the report being an addendum to his report dated 20 June 2006. From the documents before me, there is no report dated 20 June 2006 and it does not appear that a report dated 20 June 2006 was in evidence before the Arbitrator. In the report dated 26 June 2006, the doctor noted that an MRI scan dated 13 June 2006 showed no evidence of tenosynovitis in the carpel tunnel and both median nerves looked normal but there was thickening of the flexor retinaculum of the right index finger. The MRI also showed a ganglion on the right wrist, which Dr Ashwell concluded was not work related. Dr Ashwell confirmed that Mr Swain was fit for full time hours of lighter non-repetitive work but was not fit to return to his pre injury duties.
Dr Lee, general practitioner in a report dated 24 November 2006 confirmed that the bilateral carpel tunnel syndrome and the trigger fingers, were work related conditions.
A vocational assessment report dated 31 August 2006, prepared by Ms Gilchrist, rehabilitation consultant, found that Mr Swain was not fit for work involving repetitive movement of the hands and lifting greater than 20kg. Ms Gilchrist noted that Mr Swain had attempted to return to work following the injury but “none [of his attempts] had been successfully sustained”. He does not own a car and lives in a remote area (Woodenbong), 61 km from Kyogle. The main industries in the Kyogle region are in the areas of timber milling and agriculture and the unemployment rate is 10.1%. He “does not have formal training or proven skills in the areas of work in which he is job-seeking”. She identified suitable job options as mobile plant operator, indigenous park ranger, nurseryman and farm contractor.
A ‘Functional Capacity Evaluation Report – Section 40’ prepared by Ms Christine Eastwell dated 4 October 2006 concluded that Mr Swain was fit for “Light Work” involving “exerting up to 9kg of force occasionally to move objects,” however he would not be able to work “at production rate pace.” He would be fit for work as a plant operator, console operator and sales assistant.
The ‘Interact Injury Management Rehabilitation Progress Report for the period 17 October 2006 to 16 November 2006’ prepared by Ms Maguire, case manager summarised the rehabilitation activities including, receiving “his [Mr Swain’s] most recent job lead log”, assisting Mr Swain in preparing his resume, locating contact details of nurseries in Kyogle and mobile plant and farm contractors on Woodenbong / Kyogle area and an indigenous care worker in Grafton. The report notes that on 31 October 2006 Mr Swain advised that he had a work trial in Brisbane at a friend’s printing company, Annagraphics Design. A worksite assessment was conducted and a suitable duties plan developed for the work trial. The report noted that the goal of rehabilitation was return to work
A Vocational Assessment Review dated 20 October 2006, prepared by Ms Bridget Harvey, Psychologist, concluded that the options of indigenous park ranger and mobile plant operator were not an accurate assessment under “section 40 considerations” because they necessitated retraining. The report noted that the worker was prepared to relocate for work and that was taken into account in the determination of the suitable employment options as a nursery tradesperson, a farm hand, a spare parts interpreter, a butchery assistant in small goods and a traffic controller. All of the jobs identified had an average earning capacity in excess of his earnings at the Co-op and it was on this basis that the Co-op’s insurer, QBE reduced the workers section 40 payments to nil.
In addition to relying on Ms Gilchrist’s report dated 31 August 2006, referred to in paragraph [30] above, the Co-op relied on the a medico-legal report of Dr Anthony Smith dated 14 March 2006 who obtained a history of the development of bilateral hand pain and weakness for a period of 12 months prior to Mr Swains’ first attendance on his general practitioner. He was referred to Dr Ashwell, orthopaedic surgeon in September 2004 and the subsequent surgical treatment the worker had undergone. Dr Smith noted that Mr Swain had worked for six and half years at the Co-op full time filleting fish. Examination demonstrated lumps in all the flexor tendons fingers of both hands and the doctor concluded that:
“I think these palpable tendon lumps predispose him to trigger finger if he has a repetitive occupation and under those circumstances, he could develop carpel tunnel syndrome as a consequence of that.
The propensity for these forms of tenosynovitis is, I would have thought constitutional.” (page 2)
The Worker prepared a signed statement dated 24 June 2006. He outlined his post injury work at Smiths Plant Hire driving tractors and grid rollers from August 2005 to October 2005. He stated that shortly after commencing this work he experienced pain in his hands as result of the driving duties but was able to steer one handed, and swap hands. From 4 November 2005, Mr Swain worked four days at Ford Timbers as a general hand stacking timber and manipulating sheets of timber at bench height. This work resulted in “severe pain and swelling” and the need for physiotherapy treatment. Mr Swain also worked one week of a four-week work trial loading mugs into a kiln. This work also resulted in a flair up of wrist pain.
Mr Swain stated that he was unable to perform recreational fishing, play cricket, garden or play with his children, and that he also experienced some limitations in domestic activities including cleaning, lawn mowing and pulling on shoes.
At the arbitration hearing Mr Swain gave evidence that he had had little success in finding work post injury. He stated that he had sought farm work and tractor driving work. Manual tractor driving was “too heavy. Even changing implements when you’re tractor driving, that’s too much” (transcript page 6 line 22). He however conceded that he could drive a tractor with GPS “where you don’t actually steer” (transcript page 6, line 35).
The Arbitrator questioned Mr Swain about whether he thought that he could do work as stipulated by Ms Gilchrest “full time provided you avoid carrying nine kilograms, don’t do repetitive movements and avoid putting your wrists in a position that’s going to set them off. Could you find a job that will satisfy that?” (transcript page 7 lines 51-56). Mr Swain responded that it would be very hard.
On questioning by the Arbitrator about the various occupations listed in the section 40 report as suitable employment options, Mr Swain stated that the indigenous park ranger work would require training and education that he believed was beyond him, and the nursery work, if available, would require him to relocate to Casino, a place where the Worker did not want to reside. Mr Swain stated he would be interested in farm hand work but the heavy lifting aspects of it would be problematic. Mr Swain stated that he had not made any enquiries about traffic controller work with the local council although he had spoken to the superintendent of Kyogle council about two positions which involved concreting and form work. In relation to packing and serving small goods, Mr Swain expressed concern that it would involve using a knife, similar to his work at the Co-op and that he had no butchering experience.
In cross-examination Mr Swain agreed that he had driven mobile plant equipment for Smiths Plant Hire, and that he had not approached any councils or local private firms and stated that he knew of two people who owned those machines [mobile plant equipment] (transcript page 12, line 30).
After Mr Swain was retired as a witness, the Arbitrator sought clarification on the tractor driving work performed by Mr Swain at Agroforestry. Mr Swain and his solicitor confirmed that the GPS tractor work was casual work and he commenced the work at the “tail end” of the season (transcript page 13, lines 15-37).
ARBITRATOR’S DECISION
The Arbitrator delivered an ex tempore decision at the conclusion of the hearing. He briefly summarised the medical evidence, the rehabilitation and vocational assessment reports and the Worker’s statement and oral evidence at the hearing (transcript page 20) and outlined the worker’s post injury employment. He stated that he preferred the evidence of Drs Miller and Ashwell over that of Dr Smith, noting that “[t]he right finger is still giving trouble to this day and his surgery does not seem to have been the simple cure that Dr Smith was hopeful of” (transcript page 19 lines 7-9). Both Drs Ashwell and Miller certified the Worker fit for full hours of light work avoiding repetitive hand movement and Dr Ashwell placed a lifting limit of 15 kg.
The Arbitrator confirmed that the parties had reached agreement that the Worker’s probable earnings, but for injury, were $500.00 per week. In considering the Worker’s ability to earn post injury, the Arbitrator noted the requirement to compete the steps in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’), and to consider the labour market reasonably accessible to Mr Swain (section 40(3)) and the matters set out in section 43A of the 1987 Act.
The Arbitrator noted that the Worker left school at year 10 and has been a general labourer, a security guard and for eight years a self employed ceramic tiler, prior to commencing as a fish filter with the Co-op. He reviewed the suggested suitable employment options as detailed in the rehabilitation and vocational reports and the physical limitations imposed on the worker. He noted that the nurseryman work was available in Casino but that the worker did not wish to live in Casino. Whilst the worker would like to perform farm-labouring work, given his physical limitations he would have difficulty securing such work. The suggested employment option of a spare parts interpreter would also require the worker to relocate, as there were limited opportunities in Woodenbong. The Arbitrator accepted the Worker’s reservations that the occupation of butchery work would involve the use of a knife, similar to his pre injury duties and that he would also have difficulty picking up a trade for which he had no previous experience or training. In relation to the traffic control work he noted that traffic control work may involve the performance of other duties not within his functional limitations.
The Arbitrator referred to the Worker’s evidence in relation to the park ranger work and found that such work was beyond him. The Worker’s evidence on this issue was that such a position would require education and training and this was beyond him.
In respect of the available labour market, the Arbitrator noted that Mr Swain was more flexible than other injured workers and had moved between different locations “…so that the availability of work on the labour market reasonably accessible to him is a bit of a movable feast” (transcript page 22, line 22).
In considering the qualifications placed on the range of job options identified as suitable for the Worker, the Arbitrator quoted from Ms Gilchrist’s report dated 31 August 2006:
“Suitable vocational options given Mr Swain’s job preferences, skills and physical restrictions include nursery tradesperson, indigenous park ranger, mobile plant operator and farm hand. Since it is possible that any of these vocational options could involve some repetitive use of the hands, Mr Swain’s suitability for such jobs would need to be determined as individual work opportunities arise. It is also likely to be quite some time before Mr Swain is able to find a suitable position in his local area.” (transcript page 22 line 7-17) (emphasis added).
The Arbitrator found that the worker had obtained work at Smiths Plant Hire and at North Coast Agroforestry both of which he could do and “which he does not seem to stop doing because of the difficulties with his arm. However he has deposed to difficulties in doing those jobs, and I don’t think he would be capable of doing them for any long period of time full time” (transcript page 22 lines 25-30) (emphasis added).
He then found that Mr Swain had an ability to earn in suitable employment of $350.00 per week. He stated (transcript page 22, line 31-43):
“I think he would be able to earn about $350 per week ‑ just bear with me a second ‑ working restricted hours. Working that out at about $15 per hour, that comes to about 23 hours per week. The reduction, therefore, is $150. I see no reason to exercise my discretion in relation to that reduction. I think it's proper in all the circumstances, and, therefore, there will be an award in favour of the applicant from …22 January 2007 to date and continuing of $150.00 per week…” (emphasis added).
Whilst the Arbitrator’s observation that the Worker had some difficulty performing the driving work at Smith Pant Hire, necessitating him swapping hands whilst driving was correct, there was no evidence to support the observation that he had similar difficulties at Agroforestry. The unique GPS control of the tractor minimised if not eliminated the steering requirements of manual tractors, and Mr Swain could perform this work and there was no evidence that it caused him difficulties.
SUBMISSIONS ON APPEAL
In this appeal, the Appellant relies on written submissions given at the arbitration hearing and submissions made on appeal including submissions in reply to the Respondent’s Notice of Opposition filed and further submissions following the receipt of the transcript. The submissions on appeal total 40 in number, many of which are repetitive and overlap. It will not be helpful to address each individually but rather to consider them collectively as they refer to, and are relevant to, the grounds of appeal and the alleged errors in the Arbitrator’s decision.
Before the Arbitrator, the Co-op submitted that Mr Swain had by working as a mobile plant operator at Smiths Plant Hire, demonstrated a capacity to earn in excess of his probable earnings uninjured and therefore had a nil entitlement to compensation pursuant to section 40. The Co-op also submitted that Mr Swain voluntarily resigned from Smiths Plant Hire (near Lismore) to work in an unsuitable job at the timber mill in a remote rural community, with a poor labour market. In the alternative, the Co-op submits that the Worker’s failure to complete the work trial at the printing company in Brisbane was an unreasonable rejection of suitable employment under section 40(2B) and his entitlement to compensation calculated under section 40(2A) would result in a similar outcome and a nil entitlement.
On appeal the thrust of the Appellant’s submission are that:
a) The vocational assessment report of Ms Gilchrist dated 31 August 2006 identified suitable employment options of nursery tradesperson, indigenous park ranger, mobile plant operator and farm hand, and the vocational and section 40 report of Ms Harvey dated 20 October 2006 identified that the Worker had a number of transferable skills and recommended employment as a nursery tradesperson, a farm hand, a spare parts interpreter, a butchery assistant in small good and a traffic controller.
b) During questioning by the Arbitrator, Mr Swain admitted that he could drive mobile plant equipment as he performed at Smiths Plant Hire, and that he could work as a traffic control officer.
c) The Arbitrator accepted that the worker could work in suitable employment as a mobile plant operator.
d) The Arbitrator accepted that the worker could drive plant equipment on restricted hours at $15.00 per week [sic-hour] limited to 23 hours per week and calculated the worker’s ability to earn under section 40(2)(b) at $350.00 per week.
e) The evidence supports a finding that the Worker could work fulltime as a mobile plant operator or a traffic controller (see Dr Ashwell’s report dated 6 December 2005, Dr Ashwell’s certificate dated 31/1/06, Dr Lee’s certificate dated 10/7/06 and Dr Huntley’s certificate dated 23/8/06) and Mr Swain was employed as a mobile plant operator from 5 August 2005 to an unspecified date in October 2005.
f) At the arbitration hearing the Worker admitted to voluntarily resigning from the mobile plant operating position to take up a position as a timber stacker at Ford Timbers in a remote rural area. This work was “far more arduous than that of a mobile plant operator and even if this was not borne out by the evidence the Arbitrator was entitled to inform himself of that fact.” (submissions paragraph [10])
g) The Arbitrator in preferring the opinions of Drs Ashwell and Miller failed to comment on Dr Miller’s opinion that the Worker was able to drive a tractor satisfactorily. The Appellant submits this is in fact a reference to the mobile plant operator work at Smiths Plant Hire.
h) Neither Dr Miller nor Dr Ashwell suggested that the Worker’s hours should be reduced.
i) The Arbitrator’s finding that Mr Swain could work only 23 hours per week as a mobile plant operator or traffic controller was an error and contradicted the evidence preferred by the Arbitrator.
j) The evidence from both parties supports the finding that the Worker is capable of earning at least $563.55 per week in suitable employment as a mobile plant operator or $542.80 as a traffic controller and the Appellant submits that Mr Swain has an ability to earn in “alternative suitable employment that exceeds his pre-injury income.”
k) Ms Eastwell’s report dated 4 October 2006 is in error referring to “driving a tractor at a saw mill” because there is no evidence that the worker drove a tractor at the sawmill.
l) There are errors in the reports of Ms Harvey and Ms Gilchrist who fail to record the history of the mobile plant operator work from August 2005 to October 2005 and therefore fail to recognise that the Worker demonstrated a capacity to work fulltime at Smiths Plant Hire.
m) The Appellant’s decision to reduce the Worker’s section 40 rate to nil was supported by his demonstrated capacity as a mobile plant operator and “the expert evidence relied upon by the parties in the proceedings” (submissions on appeal paragraph [19])
n) The Appellant makes detailed submissions on the factors relevant to section 43A which are discussed in paragraph [75] below.
The Appellant submits that the Arbitrator’s decision should be revoked and a new decision substitute being that the Worker has a nil entitlement to compensation for the period 22 January 2007 to date and continuing or in the alternative that an award be made in favour of the Worker under section 40 at a rate of $10.00 per week.
In reply Mr Swain relies on oral submissions made at the arbitration hearing and written submissions on appeal.
On behalf of Mr Swain it was submitted at the arbitration hearing that all of the medical and rehabilitation reports confirmed that he was not fit for his pre-injury work and had physical limitations of lifting not greater than 10 to 20 kgs and avoiding repetitive activities with his wrists. He is 36 years old, left school in year 10 and does not live in or near a large capital city or a large regional centre. The job specifications as detailed in the rehabilitation reports are unrealistic. With his education, background and physical limitations, together with the geographical limitations and the availability of work, Mr Swain had a residual earning capacity of $250.00 per week.
On appeal Mr Swain submits that:
a)that the Arbitrator “carefully considered the evidence of the worker and the employer and has made no legal, factual or discretionary error”;
b)the Appellant’s submissions in relation to the reports of Drs Ashwell and Miller that they make no reference to reduced hours “is a simplistic submission that disregards the medical evidence that supports the limitations on his capacity for work”;
c)the evidence supports the decision made by the Arbitrator and his application of the Mitchell steps;
d)the Arbitrator “took into account all the evidence both medical and from the Worker and has weighed such evidence” and was correct in his finding that the Worker was not capable of performing the jobs such at Smiths Plant Hire and at North Coast Agroforestry full time for any sustained period, and
e)the Worker also makes submissions on the provisions of section 43A of the 1987 Act, which are also summarised and addressed in paragraph [75] below.
DISCUSSION AND FINDING
Section 40(2)(b) of the 1987 Act requires the determination of what the Worker is earning or is capable of earning in suitable employment after the injury, subject to the provisions of section 40(3) and section 43A. This involves a consideration of a variety of factors including the available labour market, the worker’s place of residence, the incapacity and medical assessment, the worker’s age, qualifications, literacy, previous work history and experience, retraining and rehabilitation.
In relation to the calculation of a worker’s ability to earn under section 40 the Court of Appeal in Cowra Shire Council v Quinn (1996) 13 NSWCCR 175 expressly approved the approach adopted by Burke J in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 (‘Mangion’). In Mangion, a Commissioner of the former Compensation Court of NSW (‘the Court’) found an injured worker to be partially incapacitated but did not award any weekly compensation on the basis that the worker was able to earn in suitable light duties as a security guard more than he had earned in his pre-injury job. On appeal to a judge of the Court it was held by Judge Burke that the Commissioner had erred in his approach to calculating compensation under section 40 of the 1987 Act. His Honour said at 180:
“When assessing a capacity to earn under section 40(2), it is not sufficient to merely identify a particular potential avenue of employment and attribute the income from such a job as a man’s capacity to earn. Allowance must be made for the availability of work - availability, not so much in the sense of a presently depressed labour market but in the sense of the general availability in any labour market. A rarely available niche in the labour market which carries, perhaps, substantial remuneration, does not serve as a sole criterion of capacity to earn.”
His Honour added:
“When one assesses an ability to earn under section 40(2), one is really arriving at a weighted average. Wage rates for jobs within capacity that are rarely available, though perhaps highly paid, rate poorly in such an assessment. Conversely, the income derivable from more readily available work rates highly.”
Given the fact that at the relevant time Mr Swain was not working, the Arbitrator was required to determine the average weekly amount that the Worker would be able to earn in suitable employment from time to time after the injury (section 40(2) (b)).
Both before the Arbitrator, and on appeal, the Co-op submits that the evidence demonstrates that the Worker is fit to work full time hours as either a mobile plant operator or a traffic controller and in both of these positions he would be able to earn in excess of his probable earnings of $500.00 per week and in fact from August to November 2005 he performed the work of a mobile plant operator and earned during this period $3,754.00.
The Arbitrator considered the evidence before him and specifically noted the conclusion and opinions of both the medical and rehabilitation reports that were in evidence before him as follows:
“I think the applicant can work as a plant operator but within the restrictions placed on him not only by the doctors but by the rehabilitation experts. Their recommendations are, to some extent, qualified. Ms Eastwell in Document E, which is the functional capacity evaluation report, suggests that Mr Swain is fit for complete full‑time work of a light nature provided he can work within his functional ability and adhere to functional restrictions, which are outlined, which say “avoid lifting and carrying above the specified weights and avoid repetitive movements of both left and right wrists and avoid carrying or lifting weights with the left wrist with ulnar deviation and right wrist in extension”. It is recommended that manual handling training be given to the applicant ‑ this is at page 5 ‑ and they have pointed out that lifting to avoid difficulties with the wrist would inevitably put him at risk of injury to his back, and it says more training is required, in which I infer that there is some reservation by the recommendations being made at that stage and, as I said, the section 40 report, which is Document G, makes a number of recommendations of the sort of work he could do” (transcript page 20 lines 33-55) (emphasis added).
The Arbitrator however proceeded to find that the Worker had a residual earning capacity of $350.00 per week, working restricted hours and which he equated to an ability to work 23 hour per week at $15.00 per hour. The evidence did not support this finding. There was no evidence before him that the worker could work only restricted hours nor was there any evidence to support a finding of an hourly rate of $15.00. Whilst the parties had agreed on the probable earnings of $500.00 per week, there was no evidence before the Arbitrator as to the hourly rate. The submissions on appeal by the Worker were that he worked “extensive hours on a piece-rate basis”. This would appear to correlate with the history recorded by Dr Ashwell in his report dated 2 September 2004, in which he recorded a pre-injury work history that Mr Swain worked 60 hours over a four day week, although neither assists in a determination of his hourly rate.
The making of a finding unsupported by the evidence constitutes an error of law (see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6). There was no evidence for the Arbitrator to make the finding that the worker was fit for work at restricted hours to support the award of $350.00 or that he was fit for 23 hours at $15.00 per hour and in so finding the Arbitrator erred.
The error requires that his decision is revoked. Having upheld the appeal, it is desirable that I finally determine the matter (see Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344). Whilst I have not had the benefit of seeing the Worker give evidence, I have the transcript of the arbitration hearing including such evidence. The Arbitrator did not criticise Mr Swain’s credit. In my view it is appropriate to I determine the matter.
Re-Determination
Mr Swain is 36 years old. After leaving school at year 10 he worked mainly in labouring positions with the exception of a six-month period as a security guard, after which he worked for six years with the Co-op performing fish filleting. The description of his pre-injury work as recorded in Dr Miller’s report dated 22 January 2007 is that he filleted 2,500 fish per day. His employment ceased with the Co-op in November 2004 after he under went the right carpel tunnel release surgery in October 2004. After ceasing with the Co-op he subsequently also underwent left carpel tunnel surgery in January 2005. On the medical evidence the Worker has a mild disability, continuing to display symptoms of trigger finger and thickening of the flexor tendons in the right hand and experiencing exacerbations in his symptoms with repetitive and lifting activities as demonstrated by his inability to sustain work at the timber yard or at the work trial loading the mugs into the kiln in Brisbane.
The medical evidence is uncontroversial. He developed a work related injury in the form of bilateral carpel tunnel syndrome and trigger finger which has left him unfit for his pre-injury duties but fit for lighter duties of a non repetitive nature and with a lifting restriction stipulated variously between 10kg and 20 kg.
With the exception of Dr Smith who is of the opinion that Mr Swain could return to his pre-injury duties fish filleting or attempt other occupations suitable to a man his age without restriction and that if he developed trigger finger in the future “it was eminently curable,” the Appellant is correct in that the medical evidence, on balance, clearly establishes that Mr Swain is certified fit for full hours of light duties work. The light duties limitations imposed are in relation to the type and nature of work that Mr Swain is fit to perform.
He is not fit for his pre-injury duties and not fit for work requiring a repetitive hand activities and lifting weights greater than 10kg-20kg. As such, contrary to the Appellant’s submissions, there is prima facie evidence of an incapacity for work on the open labour market. I accept that he is unfit to perform his pre-injury duties and that he should not engage in lifting of weights greater than 15 kg as certified by Dr Ashwell, his treating orthopaedic surgeon. He does however have a reasonable residual capacity for work in alternative occupations avoiding the repetitive hand activities and working within the lifting limits.
The steps to be followed in calculating an entitlement to compensation under section 40 of the 1987 Act are set out in the Court of Appeal judgment in Mitchell.
Step one requires the determination of the worker’s probable earnings in the same or some comparable employment, but for the injury (section 40 (2)(a)). Paragraph 5.2 in the Application to Resolve a Dispute, filed by Mr Swain details his comparable / probable earnings at $498.99 per week and an hourly rate of $20.00. This hourly rate would appear incorrect, because based on weekly earnings of $498.99 per week, at $20.00 per hour this would equate to 25 hours per week. There is nothing in the evidence to suggest that Mr Swain worked only 25 hours per week. To the contrary, in the history recorded by Dr Miller in his report dated 2 September 2004 Mr Swain reported to him that he worked 60 hours over a four-day week. In the Rehabilitation Progress Report for the period 17 October 2006 to 16 November 2006 the “Goal- Hours of Work” is nominated as “pre-injury hours (40 hours)”. QBE’s letter dated 11 December 2006 giving notice under section 54 of the 1987 Act refers to probable weekly earnings of $498.99 per week. The Wage Scheduled filed by the Co-op dated 19 July 2007 refers to “probable earnings” of $563.00 and “Award at Pre-Injury Employment at $498.99”. At the arbitration hearing there was some confusion between the solicitors for the parties as to the correct figure for probable earnings. Mr Braid for the Co-op clarified that the $563.00 referred to in the wage schedule was what the Worker “was able to earn as a mobile plant operator (see transcript page 16, line 10). Eventually agreement was reached that the Worker’s probable earnings were $500.00 (transcript page 16, lines 15-24). Given this agreement, I accept that the probable earnings but for injury for Mr Swain are $500.00 per week.
The second step in Mitchell is to determine the average weekly amount that the Worker is earning or is able to earn in some suitable employment from time to time after the injury. As previously discussed, the medical evidence certifies Mr Swain fit for light duties working full time hours.
Mr Swain is not in employment and it is therefore necessary to determine what he is able to earn in suitable employment. This must be assessed taking into account the available labour market and having regard to suitable employment within the meaning of section 43A (section 40(3)).
Whilst Mr Swain had demonstrated a capacity to work full time in the role as a mobile plant operator for a period of up to three months in late 2005, his unchallenged evidence at the arbitration hearing was that after a few weeks in the position he experienced symptoms in his wrists and that he compensated for this by swapping hands to steer the vehicle. He also failed to maintain the work trial in Brisbane due to an aggravation of his symptoms and he experienced severe pain after four days work stacking timber. He gave evidence that he had had little success in finding work since ceasing with the Co-op and the most suitable work had been the two-week job he had secured driving a tractor assisted by GPS navigation and thereby minimising, if not eliminating manual steering. He gave evidence that he would have difficulty with manual tractor driving and the changing of implements but coped well with the GPS tractor work but secured the job at the end of the season, only working for two weeks.
Both parties on appeal have made detailed submissions in relation to the factors relevant to the provisions of section 43A(a) to (h) and I consider them in turn and make the following findings:
a. Nature of the worker’s incapacity and pre-injury employment
The Appellant concedes the Worker’s pre injury work fish filleting involved repetitive use of the hands and fine motor skills and although Dr Miller opines that the worker is not fit for work at the Co-op he is able to drive a tractor satisfactorily. In reply Mr Swain submits that his pre injury employment discloses that he worked extensive hours on a piece-rate basis with the employer. He was fully fit with no limitation until the onset of the condition which is the subject of the appeal.” (Worker’s submissions paragraph [16 (a)]).
I find that the Worker is incapacitated for his pre-injury work and for work involving repetitive activities of his hands and will need to avoid lifting weights in excess of a range of 10 kg to 20 kg [see Dr Ashwell’s report dated 2 September 2004 (15 kg lifting limit), Ms Gilchrist report dated 31 August 2006 (lifting weights no greater than 20kg) and Ms Eastwell report dated 4 October 2006 (‘exerting up to 9kg of force’)].
b. The worker’s age, education, skill and work experience
The Appellant submits that the worker is 35 years old, lacks formal education but has transferable skills and a demonstrated ability to work as a mobile plant operator. The Worker however submits that he has no formal education beyond intermediate high school. Whilst the insurer provided “suggestions for alternative employment …it took no steps to promote such for the worker.” (Worker’s submissions paragraph [16(b)]).I find that the Worker has limited formal education, having left school at year 10. His work history and experience since leaving school has been limited to labouring jobs involving manual activities.
c. The worker’s place of residence
The Appellant submits that the worker has a wide labour market available to him and since the date of injury has resided in Lismore, Iluka, Grafton, Airlie Beach and Brisbane in which there are many councils and private firms that the worker could approach for work. Mr Swain submits that his places of residency are not inconsistent with seeking work and his evidence is consistent with relocating when job opportunities arise.The Worker currently resides in a rural area of Woodenbong and whilst he has demonstrated a capacity and willingness to relocate, most of the places he has lived since the date of injury have been in rural or regional area, with the exception of the work trial in Brisbane. I am satisfied that the Worker has made his home in the regional and rural area of northern New South Wales, and near his children and I find that Woodenbong and the surrounding area within daily commuting distance is the labour market reasonably available to him. There is no evidence that he moved to Woodenbong to bolster his entitlements to compensation (see Colin v Days Transport Service Pty Ltd (1999) 18 NSWCCR 116) and I accept the evidence of Ms Gilchrist as referred to in paragraph [30] above, that the area in which the Worker resides has an unemployment rate higher than the national average and I find that Mr Swain is disadvantaged in the labour market reasonably accessible to him.
d. The details given in the medical certificate supplied by the worker
The Appellant submits that the Worker has not provided medical certificates. Dr Miller says that he can drive a tractor and Dr Ashwell states that he is fit for suitable employment of light, non-repetitive hand activities. The Co-op submits that mobile plant operator and traffic controller are within the definition of suitable duties. Mr Swain submits that the absence of medical certificates is not significant because the necessary medical information is in the medical reports. There are a number of medical certificates from Ashwell in evidence for periods pre-dating the period of the current claim. There is however a WorkCover medical certificate from Dr Lee dated 31 October 2006 certifying the worker fit for suitable duties from 23 October 2006 to 23 October 2007. He does not however specify the capabilities or limitations placed on the Worker. The reports of Drs Ashwell and Miller previously discussed provide details of the limitations on Mr Swain in respect of lifting requirements and avoiding repetitive manual activities with his wrists and hands but do not otherwise limit Mr Swain’s working hours.I find that Mr Swain is capable of working full time hours in suitable light duties work, provided that he is able to perform the duties within the restrictions stipulated by Drs Ashwell and Miller.
e. The provision of any injury management plan
The Appellant submits, “the insurer has encountered difficulties in obtaining the full cooperation of the worker.” Reference is made to the rehabilitation progress report from 17/10/06 to 16/11/06 that notes that Mr Swain has not submitted job logs. Further, it is submitted that he resigned from the position of a mobile plant operator and at the print production company without consulting his GP. On behalf of Mr Swain reference was made to the various injury management reports and also to the fact that the Arbitrator had the benefit of hearing the Worker and accepted his evidence.I am satisfied that Mr Swain had a rehabilitation program provided by Interact Injury Management. The only report in evidence however is the progress report for the period dated 17 October 2006 to 16 November 2006. Contrary to the Appellant’s submission, in this report reference is specifically made to the Worker submitting a job log (see paragraph [32] above).
f. Any suitable employment for which the worker has received rehabilitation training
The Appellant submits there has been a lack of cooperation by Mr Swain. It refers to a TAFE course that the Worker commenced and that the insurer agreed to fund but the Worker failed to complete it. In response Mr Swain submits that he self initiated the TAFE course and the fact he did not complete it “reinforces that his lack of formal education restricts the range of occupations to which he might direct himself” (worker’s submissions paragraph [16(f)]).
The evidence of the Worker at the arbitration hearing was that the TAFE course he started was in marine work and he did not believe that work in that area was realistic or appropriate, given his physical limitations. Whilst Mr Swain has been assessed by the rehabilitation provider and a return to work plan developed, there is no evidence other than the failed attempt at the TAFE course, some assistance provided by Interact Injury Management in preparing his resume and providing Mr Swain with some contact details of nurseries and contractors for him to approach for work, that Mr Swain engaged in or received any rehabilitation training. Mr Swain obtained each of his post injury jobs, including the work trial in Brisbane.
g. The length of time the worker has been seeking suitable employment
The Co-op submits that there is little evidence other than the period 16 July 2007 to 29 July 2007 that the worker has been seeking suitable employment. On behalf of Mr Swain it is submitted “the work sought by him was the subject of evidence and the cross-examination was only restricted to the several suggestions made by Ms Harvey and Ms Gilchrist in the Assessment reports.” (Worker’s submissions paragraph [16(g)]). It is apparent from the Interact Injury Management Rehabilitation Progress Report for the period 17 October 2006 to 16 November 2006 that Mr Swain was seeking suitable employment during this period, and in fact secured the work trial in Brisbane, which the rehabilitation provider assessed and incorporated into an amended Return to Work Plan. It is also apparent that the other jobs post injury were secured by Mr Swain through his own efforts including the work at Smiths Plant Hire from August 2005 to October 2005, Ford Timber Pty Ltd from 7 November 2005 to 10 November 2005, the work trial at the printing Company in Brisbane in December 2006 and the tractor driving at North Coast Agroforestry for the periods from 16 July 2007 to 22 July 2007 and from 23 July 2007 to 29 July 2007. Mr Swain has been unemployed at all other relevant times since November 2004. I note that he has received compensation payments for all relevant periods up to 22 January 2007.h. Any other relevant circumstances
The Co-op at both the arbitration hearing and on appeal made submissions that the Worker was fit to perform fulltime mobile plant driving duties, as he was performing at Smiths Plant Hire and that he voluntarily resigned to take up the work at the timber yard, which proved unsuitable. It is apparent from the PAYG payment statements from Smith Plant Pty Ltd and Ford Timbers Pty Limited that Mr Swain earned a greater daily amount at the Timber yard in the period 7 November 2005 to 10 November 2005 than at the Plant Hire company and the inference is that he took up an opportunity for higher paying work, although was unable to sustain it as a result of his residual symptoms and disabilities. I do not accept the Co-op’s submissions that the Worker voluntarily rejected suitable employment or the submission that the fact that the Worker had demonstrated a capacity to drive mobile plant equipment for period from 5 August to an unspecified date in October 2005, is evidence that Mr Swain is capable of earning equal to or in excess of his pre-injury earnings and is therefore not entitled to compensation for partial incapacity or at most is entitled to an award of $10.00 per week.
Whilst the evidence does not suggest that the Worker’s hours need to be restricted in the performance of lighter work such as plant hire equipment driving or traffic controller work, given the Worker’s educational and vocational background and the labour market reasonably accessible to him in the Woodenbong and regional area, one would expect, and as Mr Swain’s post injury employment demonstrates, intermittency of employment is, and will be, a significant feature affecting his capacity to earn. Whilst Mr Swain has demonstrated a capacity to secure various forms of work, (mostly plant driving work for short periods of time and worked full time during these periods), the nature of his injury, his residual symptoms and the restrictions placed on the amount and type of arm and hand activities he is able to perform, mean the prospects of obtaining and retaining secure, long-term suitable employment are severely diminished.
In Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571 (‘Summerson’) the worker suffered injury to her left wrist as a result of the repetitive telephonist work. She underwent surgery in June 1992 and on 29 January 1993 was certified as fit for normal work by her treating orthopaedic surgeon. On 1 April 1993 she obtained work as a telephonist with George Patterson and Co and worked full time and from that date until 30 November 1993 when she ceased work for reasons unrelated to her injury. During this period of time she earned in excess of her probable earnings with the respondent. His Honour Judge Neilson found that she had a partial incapacity for work from 30 January 1993, with the exception of the period of employment with George Patterson and Co and assessed the measure of the incapacity on the basis there would be periods in which the worker would be unemployed, and therefore it was legitimate to take into account intermittency of employment of a partially incapacitated worker. He held at page 577[F]:
“The applicant bears the onus of proving the amount to which she is entitled under section 40 since 30 January 1993. As I have said, and I repeat, the question of quantification is very difficult. However, I am persuaded by the submissions of Mr Menary that the appropriate way of looking at the case is that the applicant’s ability to get jobs as the one she got with George Patterson & Co is reduced…Therefore, the number of jobs which she could hold down has been reduced. That reduction means that if the applicant finds herself unemployed, it is harder and would take longer to obtain suitable employment- that is, employment suitable to a lady with her disability in the dominant left arm” (emphasis added).
Judge Neilson awarded Ms Summerson compensation for the periods in which she was not employed by George Patterson & Co of $83.00 per week, on the basis that her ability to earn had been diminished by one sixth as a result of her injury. Therefore she could earn $83.00 per week less than her probable earnings of $500.00 per week.
I accept that Mr Swain is capable of working as either a plant operator, driving GPS controlled tractors or as a traffic controller. Given that the evidence does not disclose the last date that the Worker was employed by Smiths Plant Hire, it is not possible to accurately determine his weekly earnings during this period. If Mr Swain worked from 5 August 2005 to 31 October 2005, his average weekly earnings throughout this period would have been $302.00 per week. If, however, he ceased work on 1 October 2005 his average weekly earnings would have been $461.00 per week. Given the evidence was that Mr Swain ceased working for Smiths Plant Hire some time in October 2005, even allowing for his employment to have ceased on 1 October 2005, his average weekly earnings throughout that period would not have exceeded $461.00 per week and were somewhere in the range of $302.00 and $461.00. The Co-op relies on the theoretical figure for the average weekly rate for a level 1 mobile plant operator of $563.55 as detailed in Ms Gilchrist’s QBE –Vocational Assessment Report dated 31 August 2006. Whilst such an amount may reflect the earning potential in such work for an uninjured operator, such an earning level is not borne out by Mr Swain’s actual earnings in this form of employment, which were between $302.00 and $461.00 per week, however given the difficulty in determining Mr Swain’s weekly earnings during the short period of employment as a mobile plant operator and the absence of evidence as to the circumstances or conditions of that employment, I accept the unchallenged evidence of Ms Gilchrist that the average weekly rate for a grade 1 mobile plant operator is $563.55 per week
The evidence of the North Coast Agroforestry pay advices demonstrates that for two seven-day periods from 16 July 2007 to 22 July 2007 and from 23 July 2007 to 29 July 2007 Mr Swain earned $499.50 and $626.00 respectively. Again the evidence is inconclusive in that it is unclear how many days in each of these seven-day periods Mr Swain worked. If he worked five days between 16 July 2007 and 22 July 2007 his earnings of $499.50 were comparable to his probable earnings of $500.00 per week. If however he worked six or seven days in this period, his earnings would be proportionately less per day. Likewise in the period 23 July 2007 to 29 July 2007, in a five or six day week his earnings of $626.00, are in excess of his probable earnings, but if he worked the full seven days in this period his daily rate would have been $90.00 per day, equating to $450.00 for a five day working week. A traffic controller has also been identified as suitable employment for Mr Swain. He has not worked in such a position but the average earning capacity in such a position is detailed in Ms Bridget Harvey’s report dated 20 October 2006 page 5 at $543.80.
Applying the reasoning in Summerson, and accepting the restricted rural labour market available to Mr Swain, his physical limitations and, in particular, the important qualifications contained in the report of Ms Gilchrist that:
“Since it is possible that any of these vocational options could involve some repetitive use of his hands, Mr Swain’s suitability for jobs would need to be determined as individual work opportunities arise. It is also likely to be quite some time before Mr Swain is able to find a suitable position in his local area” (Ms Gilchrest report dated 31 August 2006),
I am satisfied on the evidence that the number of jobs Mr Swain can hold down has been reduced, and that it is harder for him to secure suitable employment. This has been demonstrated by the short periods of employment he has had post injury. At most Mr Swain has been employed for approximately 16 weeks from 6 March 2005, (when Dr Ashwell certified Mr Swain fit for full time work in suitable duties) to date. Whilst he obtained employment as a mobile plant operator in August 2005 he earned less in this job than the claimed average weekly earnings of $563.55 for a grade 1 mobile plant operator. He had two short periods of work in the timber yard and with the promotional printing business and failed to maintain either position due to suffering increasing wrist and hand symptoms. He was able to secure work driving the tractor with GPS navigation control, but worked only two weeks due to the season ending. Whilst Mr Swain’s evidence was that this work tractor driving was the most suitable for him it is clearly a seasonal job and the physical aspects of tractor driving were significantly reduced due to the GPS navigation control. Although the evidence does not disclose the duration of the season, given its seasonal nature the availability of this form of work would clearly vary throughout the year and would also further depend on the availability of the GPS navigation option. The rehabilitation intervention has been of limited scope and effect in assisting Mr Swain in obtaining ongoing suitable.
Accepting the recognised limitations of the rural labour market reasonably available to him, and his physical limitations, doing the best I can, I believe that Mr Swain could expect such suitable employment would be available to him, in the labour market reasonably accessible to him for not more than approximately two thirds of the time.
The average weekly earnings from the jobs that I have nominated as being suitable (mobile plant operator ($563.55), traffic controller ($543.80)) is $553.70 per week, during those times when they are available. When this figure is reduced by one third to reflect intermittency of employment, the figure is $369.00. I determine this figure to represent the Worker’s ability to earn in suitable employment from 22 January 2007.
Step 3 in Mitchell is to deduct the lower end of the equation ($369.00) from the upper ($500.00), leaving a figure of $131.00.
The available evidence suggests that Mr Swain earned equal to, or in excess of, his probable earnings in the two week period of employment with North Coast Agroforestrey Pty Ltd from 16 July 2007 to 29 July 2007 and therefore, following the reasoning of Neilson J in Summerson, the Worker is not entitled to compensation payments during this period.
The fourth stage of the process as set out in Mitchell is the exercise of discretion to “decide whether and to what extent the reduction calculated as above bears ‘such relation to the amount of that reduction as may appear proper in the circumstances of the case.’” Neither party submitted, nor do I find, any factors relevant to reduce this amount further.
The fifth stage is to make an award for the weekly sum arrived at. The award to be entered is for $131.00 per week pursuant to section 40 of the 1987 Act, from 22 January 2007 to 15 July 2007 and from 30 July 2007 to date and continuing and an award for the Employer for the period 16 July 2007 to 29 July 2007.
DECISION
The decision of the Arbitrator dated 20 September 2007 is revoked and the following orders are made:
1. The Respondent, to pay the Applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 at the rate of:
a)$131.00 per week from 22 January 2007 to 15 July 2007, and
b)$131.00 per week from 30 July 2007 to date and continuing.
2. Award for the Respondent in respect of the claim for weekly compensation payments for the period 16 July 2007 to 29 July 2007.
3. The Respondent to pay the Applicant’s cost.
COSTS
No order as to costs of the appeal.
His Honour Judge Greg Keating
President
8 January 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
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