Coles Myer Limited v Gibson
[2008] NSWWCCPD 18
•14 February 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Coles Myer Limited v Gibson [2008] NSWWCCPD 18
APPELLANT: Coles Myer Limited
RESPONDENT: Suzanne Jane Gibson
INSURER:Coles Group Limited
FILE NUMBER: WCC5936-07
DATE OF ARBITRATOR’S DECISION: 18 September 2007
DATE OF APPEAL DECISION: 14 February 2008
SUBJECT MATTER OF DECISION: Incapacity; section 40 assessment; weight of evidence
PRESIDENTIAL MEMBER: President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION: Appellant: Lander and Rogers
Respondent: MRM Lawyers
ORDERS MADE ON APPEAL:
1. Paragraphs 1 (a), (b), (c), (f) and (g) of the Arbitrator’s decision dated 18 September 2007 are revoked and the matter is remitted to another Arbitrator for determination in accordance with the reasons in this decision.
2. Paragraphs 1 (d) and (e), Paragraph 2 and Paragraph 3 of the Arbitrator’s decision dated 18 September 2007 are confirmed.
3. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 10 October 2007 Coles Myer Limited (‘the Appellant/Coles’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 September 2007.
The Respondent to the Appeal is Ms Suzanne Gibson (‘the Respondent/Worker/ Ms Gibson’).
Ms Gibson is a 40-year-old casual delicatessen assistant who slipped on a wet floor and suffered a jarring injury to her back at the end of her shift on 14 December 2002 whilst working at Coles at West Gosford. Ms Gibson reported the injury but continued to work until Christmas Eve when she ceased work due to increased pain in her low back and mid to upper back. She was referred for physiotherapy by a general practitioner and underwent four months of physiotherapy treatment. She returned to work after one month and was provided with light duties, and, after an unspecified time she returned to delicatessen work with some informal modifications so she could avoid lifting from heights and avoid heavy lifting generally.
Ms Gibson confirmed in oral evidence that on 28 March 2003 Dr Loh, general practitioner, certified her fit for full duties and at that time she was transferred to a permanent part time position of 19 hours per week in the bakery section. On 24 June 2004 Ms Gibson resigned from Coles, effective 1 July 2004, and in July 2004 she commence work managing her brother’s motorcycle business where she worked full time until the business closed in April 2005. From 1 October 2005 to 16 March 2006 Ms Gibson worked part time from home as an area manager for Penny Miller Home Shopping, however, after the deduction of business expenses her taxable income from this work was $nil. From 25 January 2006 to July 2006 Ms Gibson worked as a casual delivery driver for between 3 and 5 hours per day. She continued in this work until she resigned in July due to being six months pregnant. Ms Gibson’s son was born on 6 October 2006 and on 10 May 2007 she commenced work for Home Entertainment Express, delivering DVDs and games.
On 6 August 2007 Ms Gibson filed an Application to Resolve a Dispute in the Commission claiming weekly compensation benefits at $550.00 per week from 1 August 2004 to date and continuing and lump sum compensation of $8,750.00 in respect of 7% whole person impairment under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’).
In its Reply filed on 27 August 2007, Coles disputed that the Worker was incapacitated after 15 July 2004, the extent of any incapacity and the lump sum compensation.
The parties were unable to reach agreement and the matter proceeded to an arbitration hearing on 13 September 2007. Both parties were represented and the Arbitrator delivered an ex tempore decision at the conclusion of the hearing. The Arbitrator noted that there was no dispute between the parties that the Worker had suffered an injury to her thoracic and lumbar spine on 14 December 2002 when she slipped at work, and there was no dispute under section 9A. The dispute between the parties was in relation to the Worker’s claim of incapacity from 1 August 2004, her probable earnings but for injury, her ability to earn post injury and the exercise of the discretion under section 40(1).
A transcript containing the reasons for his decision has been issued to both parties.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 September 2007 records the Arbitrator’s orders as follows:
“In this matter an arbitration hearing was held on 13 September 2007 where I, acting as Arbitrator, used my best endeavours to bring the parties to an agreed resolution of the dispute. The parties were unable to come to an agreement.
To ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally at the arbitration hearing.
A sound recording of the reasons given is available to the parties.
The orders made are as follows:
1.That the Respondent make weekly payments of compensation to the Applicant under section 40 of the Workers Compensation Act 1987 at the following rates:
a.$162.52 a week from 1 August 2004 to 8 September 2004;
b.$397.00 a week for the period 1 April 2005 to 30 September 2005;
c.$405.10 a week for the period 1 October 2005 to 24 January 2006;
d.$192.82 a week for the period 25 January 2006 to 9 July 2006;
e.$50.00 a week for the period 10 July 2006 to 31 January 2007;
f.$209.20 a week for the period 1 February 2007 to 9 May 2007;
g.$164.20 a week for the period 10 May 2007 to date and to continue in accordance with the provisions of the Act.
2.That there be an award for the Respondent with respect to the Applicant’s claim for weekly payment compensation for the period 9 September 2004 to 31 March 2005.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.
Note:
The outstanding medical dispute regarding the degree of permanent impairment resulting from the injury to the Applicant on 14 December 2002 is to be remitted to the Registrar to arrange a referral of that dispute to an AMS.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are that the Arbitrator erred in:
1) finding Ms Gibson incapacitated for work from 1 August 2004 to 8 September 2004;
2) finding that Ms Gibson was incapacitated and the degree of incapacity from 1 April 2005 to 24 January 2006;
3) finding that Ms Gibson had an ongoing incapacity and the degree of that incapacity from 25 January 2006 to date and continuing, and
4) concluding that Ms Gibson’s employment continues to be a substantial contributing factor to any ongoing incapacity for work.
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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 10 October 2007, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The threshold requirements of section 352(2) of the 1998 Act have also been met, with the amount of compensation at issue being both in excess of $5000.00 and greater than 20% of the amount awarded.
Leave to appeal is granted.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·the evidence is credible;
·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:
·a schedule of the fresh or additional evidence;
·a copy of the fresh or additional evidence;
·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.
Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.
Ms Gibson’s solicitor filed an application to admit new evidence on 26 November 2007 seeking to rely on the Approved Medical Specialist (‘AMS’), Dr Ostinga’s report dated 5 November 2007 and a letter from Ms Gibson addressed to her solicitor dated 19 November 2007 referring to a number of alleged inaccuracies in the AMS report.
Dr Ostinga examined the Worker following a referral to assess whole person impairment (‘WPI’) as a result of the work injury to Ms Gibson’s lumber spine. Whilst his report comments on Ms Gibson’s pre and post injury work history he does not specifically assess her capacity for work. He assesses a 0% WPI, restricting his assessment to the lumbar spine although he noted that Ms Gibson presentation also involved the thoracic spine.
The letter from Ms Gibson’s solicitor lodging the application to admit fresh evidence, notes that the application was served on the solicitor for Coles. No submissions dealing with the application to admit fresh evidence have been received from Coles. In particular, Coles has not submitted that it is prejudiced by the introduction of any of the fresh evidence.
Ms Gibson’s solicitor submits that the evidence sought to be admitted arises from the assessment by Dr Ostinga which occurred after the arbitration hearing and that the letter from the Worker is sought to be admitted on the basis that “[Ms Gibson] wish [sic] to put her evidence about inaccuracies in the report of Dr Ostinga before the Commission” and her letter was not available at the time of filing the Notice of Opposition to the Appeal.
The question of the introduction of fresh evidence on appeal was considered by the Court of Appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160 that three conditions need to be met before “fresh evidence” can be admitted:
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
However, in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Heydon JA stated at [15]:
“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
As stated by Deputy President Roche in Naidu v Able Manufacturing Pty Ltd & anor [2007] NSWWCCPD 237 at [33]:
“It is only in exceptional circumstances, in order to do justice between the parties, that fresh evidence or additional evidence be allowed on appeal.”
An appeal to a Presidential member is by way of a review and is not a second hearing. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The issue in the appeal is the extent, if any, of the Worker’s incapacity for work and the causal link with the work injury. Neither party objected to the Arbitrator determining the Worker’s claim for weekly compensation prior to referring the worker to an Approved Medical Specialist (AMS) for an assessment of permanent impairment. Further, I note that an Amended Medical Assessment Certificate dated 17 December 2007 was issued to the parties on 17 December 2007 and neither party has sought to rely on this certificate in the appeal.
Whilst the Appellant has confirmed that both documents came into existence after the arbitration hearing, she has not made any submissions on the reasons why the documents should be admitted on appeal or how the evidence will assist in the determination of whether the Arbitrator erred in law, fact or discretion.
In the circumstances I am not satisfied that I should admit the report of Dr Ostinga dated 5 November 2007, or the letter from Ms Gibson dated 19 November 2007, because both documents have little if any probative value to the issue of incapacity and in any event an Amended Medical Assessment Certificate dated 17 December 2007 has been issued.
The application to rely on fresh evidence is refused.
EVIDENCE
In support of her application before the Arbitrator Ms Gibson relied on a medico-legal report from Dr Plowman, surgeon, a short report from Dr Loh, general practitioner, and two radiological reports.
In a report dated 24 August 2004 Dr Plowman obtained a history that Ms Gibson worked 30 to 40+ hours per week in the delicatessen. He recorded the injury on 18 December 2002 (presumably 14 December 2002), when she jarred her back slipping on a wet floor. He noted that she continued working until Christmas Eve when she was unable to complete the shift due to increased pain and dizziness. She attended the practice of Drs Thrift and Kirby, (general practitioners) where she complained of upper and lower back pain and tingling in her right arm and ring and little finger.
Dr Plowman noted the following investigation results:
(i) An x-ray of the lumber spine dated 27 December 2002 showed no abnormality;
(ii) a CT scan of the lumber spine dated 27 December 2002 showed a “minimal bulging of the L4/5 disc, in contact with the anterior aspect of the thecal sac”;
(iii) an x-ray of the dorsal spine dated 27 December 2002 showed a mild scoliosis and small osteophytes in the mid and lower thoracic vertebra, and
(iv) a thoracic CT scan showed no osteophytes in the lower thoracic vertebral bodies and no thecal or nerve root compression.
The doctor noted a past history that the Worker had sustained an injury to her back in 1999 when she fell stepping onto a stool and struck her back on the legs of the stool. She underwent x-ray of her lumber spine on 8 June 2000 which showed no abnormality and a CT scan on the same day showed benign intracranial hypertension and a pelvic ultrasound for gynaecological problems on the same day. She suffered an exacerbation of her back symptoms after working as a cleaner in 2000, was off work for two days and underwent a further x-ray of the lumber spine. She resumed her pre injury work after two days.
Following the injury at Coles, Dr Plowman noted that after a few weeks off work, Ms Gibson returned to work on light duties “before resuming her usual work, doing pretty much everything in the deli, though she had to be careful with bending and lifting” (page 2). In April 2003 she was transferred to the bakery working 15 to 19 hours per week for approximately 12 months. She reported developing increasing symptoms in her back dragging trolleys and after a further slipping incident. She was treated with physiotherapy, Naprosyn, and Zoloft, for depression.
At the time of Dr Plowman’s examination Ms Gibson complained of intermittent back pain of variable severity between her shoulder blades and occasional tingling in her right arm. She also complained that whilst she had experienced intermittent pain in her low back, it was worse since the incident on 18 December 2002 [sic - 14 December 2002], with changes in weather, lifting heavy items or carrying anything when walking for more than 30 minutes.
Dr Plowman diagnosed mild thoracic spondylosis, aggravated by the injury on 18 December 2002 [sic- 14 December 2002] and the nature and conditions of her employment. In relation to the right arm symptoms he concluded that her “condition probably also accounts for the referred symptoms in her right arm, though the distribution does not correlate at all well with her thoracic injury.” He also concluded that the L4/5 disc degeneration was aggravated and had become symptomatic since the non-work related injury in 1999 and “It was aggravated and is probably worse since the work related incident on 18.12.02 [sic 14.12.02] and contributed to by the nature and conditions of employment…”
Further the doctor was of the opinion that the Worker suffered from post traumatic stress and depression since the injury in December 2002 and “more recently in October 2003.” This is the first reference in Dr Plowman’s report to ‘October 2003’, and no further explanation is provided. In any event, the current claim is limited to a frank injury to the back on 14 December 2002 and no claim is made for injury as a result of the nature and conditions of employment or psychological injury or injury to the right upper limb.
In relation to fitness for work, Dr Plowman assessed the Worker as unfit for shop assistant work requiring repetitive bending, lifting, pulling, pushing and carrying. He believed that she would have difficulties with her pre-injury duties and any work requiring regular heavy use and strain on either her upper or lower back. The doctor assessed a 7% WPI.
Ms Gibson also relied on a brief medical report from Dr Loh dated 27 December 2002, which referred to a thoracic spine injury at work but did not refer to the date of injury and the doctor noted a complaint of tenderness over the T6 area. There is a notation in the report of a normal range of movement but pain on movement, a normal CT scan and a treatment plan involving non-steroidal anti-inflammatory medication.
An x–ray report from Dr Long dated 16 November 2000, showed minimal lumber scoliosis and a CT scan report of the thoraco-lumbar spine from Dr Farrell dated 27 December 2002 showed minor spondylotic changes and minor disc pathology at the L4/5 level.
Ms Gibson prepared a signed written statement dated 3 May 2007 and gave evidence and was cross-examined at the hearing. In her signed statement she stated that she commenced work at Coles in about 2001 working in the delicatessen. Her duties involved customer service, cleaning cabinets and floors, lifting and carrying stock, operating machines and equipment including a pallet jack, loading shelves and standing all day. Ms Gibson stated that she had suffered an earlier injury to her back when she slipped and fell in 1999. Although she stated that she experienced ongoing intermittent low back pain after this injury it did not prevent her working. She also said that prior to the work injury she experienced intermittent pain in her mid back between her shoulder blades when reaching into cabinets. She however stated that this aching did not stop her from working.
Ms Gibson recorded a history of experiencing mid back pain between her shoulder blades after she slipped. The pain was in a different place to where she had felt pain when she injured her back in 1999 but it was in about the same place as she had previously felt pain as a result of bending at work (paragraph 10, statement). She stated that she had a few weeks off work, returned to light duties initially and then recommenced work in the delicatessen, but “with some modifications”, avoiding lifting heavy items and lifting from heights and using trolleys. She stated that on 28 March 2003 Dr Loh certified her fit to return to her pre-injury duties and she was transferred to a permanent part time position in the bakery department working 19 hours per week. She stated that the rehabilitation co-ordinator informed her there was no other work available in the store.
Ms Gibson stated that her wages dropped while working in the bakery. Further, she stated “I believe that I would have been able to continue working in the deli department with restrictions” (statement, paragraph 15). She also experienced increased mid, upper and lower back pain and neck pain and numbness in her right upper limb as a result of pushing trolleys in or about June 2004. She stated that she consulted Dr Robertson, general practitioner, who put her off work from 8 June 2004 and prescribed the anti-depressant medication, Zoloft.
Ms Gibson stated that she resigned on 24 June 2004, (effective 1 July 2004) “because I could not handle working at the store anymore and I do not want to continue doing work which hurt [sic] my back and was making it worse. I could not manage the pushing of trolleys in the bakery” (statement, paragraph 20).
Following her resignation Ms Gibson commenced fulltime work as a manager in her brother’s motorcycle business. She states that from July 2004 to 8 September 2004 she performed voluntary work for no pay, but from 9 September 2004 she was paid $676.00 per week to April 2005 when the business ceased operating. Between 1 October 2005 and 17 March 2006, she was employed in a part time position working from home as an area manager for Penny Miller Home Shopping. She states that her taxable income during this period was $nil.
From 25 January 2006 to July 2006 Ms Gibson worked 3 to 5 hours per day, five days per week as a casual delivery driver and ceased this work due to her pregnancy. She gave birth to her third child on 6 October 2006. Ms Gibson stated that in her opinion she would not be able to work in this position full time because prolonged sitting made her back worse.
Ms Gibson stated that she was looking for suitable work that does not require heavy lifting or carrying, prolonged sitting or standing or excessive bending.
In her oral evidence Ms Gibson stated that since 10 May 2007 she had been working for Home Entertainment Express. The work involves delivering games and DVDs to residential households, undertaking paperwork and preparing gifts for libraries. Ms Gibson stated that the most she has earned in this work is $255.25 per week. Although no evidence was led as to the number of hours per week she was working, Ms Gibson stated that she worked one day a week and occasionally two.
Ms Gibson stated that she had a Commerce Degree Certificate mainly based in accounting with some business management. (transcript page 15, line 9)
In cross examination, Mr Newton of Counsel referred Ms Gibson to an AW Workwise rehabilitation case closure report dated 28 April 2003 which apparently stated that the Worker had successfully completed a graded return to her pre-injury duties from 28 March 2003. Ms Gibson conceded that she had signed this document. Despite this evidence neither party sought to admit this case closure report into evidence.
Ms Gibson denied her back had returned to normal but she conceded that she had not informed Ms Fitzsimmons, her supervisor, that she had any ongoing back problems after returning to her pre-injury duties in March 2003. She further conceded in cross-examination that she had obtained a certificate from her treating general practitioner dated 15 July 2004 certifying her fit for pre-injury duties and that although she had not given any reasons in her letter of resignation, she had informed co-workers that she was leaving to take up a position assisting her brother in his business.
Ms Gibson further conceded that whilst she ran the commission based business for Penny Miller at a loss, she had expected to earn between $300.00 and $400.00 per week in the four and a half months that she undertook the work. Further, Ms Gibson stated that whilst the job was meant to be part time it required her to undertake full time hours to complete the work and the work involved assigning work to and supervising other people.
Ms Gibson also relied on PAYG payment summaries from Coles, taxation returns dated 30 June 2005 and 30 June 2006 and a letter form Coles dated 12 July 2007 stating that she was paid under a federal award and the hourly rate of probable earnings from 1 July 2006 was $19.01 and from August 2006 was $19.33.
At the hearing Ms Gibson’s solicitor made an application to admit an amended wage schedule annexing a part copy of the Coles Supermarkets Australia Pty Limited Retail Agreement 2005. After initial objection it was admitted into evidence by consent.
In its reply Coles relies on a medico-legal report from Dr Bye, orthopaedic surgeon, dated 30 August 2004. Dr Bye recorded a history from Ms Gibson that she worked 30 to 40 hours per week. He however also referred to a report from Workwise dated 30 January 2003 that recorded Ms Gibson’s hours as 26 per week. This Workwise report, like the case closure report referred to in paragraph [53] above was not in evidence before the Arbitrator and is not in evidence before me.
Ms Gibson gave Dr Bye a consistent history of the slipping incident on 14 December 2002 and stated that she experienced mid thoracic pain and a flare up of low back pain in the incident. She returned to work in late January, early February 2003 on restricted duties and eventually returned to normal hours. She stated that she worked in a cautionary manner and avoided lifting. Dr Bye noted that Ms Gibson was transferred to the bakery and worked limited hours until she experienced a flare up of symptoms after pushing trolleys. She attended Dr Robertson and was referred for physiotherapy. Around this time she tendered her resignation.
She informed Dr Bye that her condition had not improved since she had ceased her work activities. Dr Bye recorded her complaints of a sitting tolerance of 15 minute and back pain and intermittent left leg pain when walking and if she attempted to carry objects. Dr Bye obtained a history of a fall whilst working for a beauty salon which caused a temporary flare up of back pain, the 1999 non work related slipping and falling incident and a work incident in 1999 whilst working as a school cleaner. Dr Bye concluded that Ms Gibson suffered a musculo-ligamentous injury to her mid back “in the presence of pre-existing but allegedly asymptomatic degenerative disease of the thoracic spine” in the injury at Coles on 14 December 2002. He also believed that the low backache and left sciatica were a result of musculo-ligamentous sprain and her mid backache and restrictions were substantially a result of the work injury on 14 December 2002. Ms Gibson indicated to Dr Bye that she could sit for 15 minutes, walking tended to affect her low back and left leg pain and she has able to drive a car if she sat upright.
Dr Bye’s examined the Worker on 26 August 2004. His note that she had not worked for six months was clearly incorrect. On this incorrect history he found it difficult to understand the relations of her current level of incapacity and the work injury. He concluded that the diagnosis was uncertain and it was unclear why her symptoms persisted and the integrity of her thoraco-lumbar discs could only be assessed by an MRI scan. He recommended a cautionary return to work avoiding heavy lifting and excessive bending and initially working shorter hours “until she works into her situation.” Further, the doctor recommended rehabilitation and a work hardening program, if Ms Gibson was to return to her pre-injury duties in the delicatessen. He believed that the prognosis was uncertain, the reason for her persistent symptoms was unclear and further investigation by way of an MRI would define the integrity of the thoraco-lumbar discs. Dr Bye assessed a 0% WPI.
A WorkCover medical certificate, titled ‘Final” dated 15 July 2004 (15 days after her resignation from Coles) from Dr Boleyn, was unsigned, and refers to the Worker being employed as a bakery assistant 20 hours per week and suffering a flare up of back pain after wheeling a trolley full of bread. The certificate certified the Worker fit for pre-injury duties on 15 July 2004.
The claim form completed by the Worker and the Employer refers to a thoracic spine injury and Ms Gibson specifically noted that the injury site was higher in her back than her pre-existing lower back injury.
The Coles Myer Ltd remuneration form dated 30 December 2002 refers to the Worker’s commencement date with Coles as 21 September 2001 and that her estimated hours were 26 and her average weekly earnings were $482.58.
Coles also relied on a copy of a file note from a meeting with the Worker on 1 July 2004, signed by Ms Fitzsimmons and Mr Faber. Presumably the meeting was the worker’s exit interview, given it was held on her last day of employment with Coles. Reference is made to Ms Fitzsimmons explaining to Ms Gibson that following her injury she was placed on part time hours from casual hours and moved to a department without as much heavy lifting. A notation was made that Ms Gibson had confirmed her desire to resign because she had “had enough my wages just cover the cost of travelling to work and my car is breaking down and it is best for me.”
SCOPE OF THE REVIEW PROCESS
As noted in paragraph [28] above, an appeal to a Presidential member is not a rehearing. The scope of the power of review on appeal has been well articulated in a number of decisions (see Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188 and The King Island Company Ltd v Deery [2005] NSWWCCPD 1). The review process is broader than correction of error of the kind identified in House v The King (1936) 55 CLR 499. In Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 (‘Zheng’) Bryson JA at [38] said:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was quoted with approval by McColl JA in Edmonds at [134].
Recently, the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249, in considering the powers of review in relation to determining whether to remit a matter to the primary decision maker, Spigelman CJ confirmed this approach and said as follows [paras 18-30]:
“… I do not accept … that a Presidential member is relevantly constrained when reviewing an Arbitrator’s decision on such a finding of fact … The concept of a review on the merits is wider than the concept of an appeal in a judicial context … 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 contents.”
I intend to apply the above principles in the matter before me.
Ground 1: The Arbitrator erred in finding Ms Gibson incapacitated for work from 1 August 2004 to 8 September 2004
Submissions
On appeal Coles submits that:
a) the only WorkCover medical certificate admitted into evidence was a certificate from Ms Gibson’s treating general practitioner Dr T Boleyn dated 15 July 2004 who certified Ms Gibson fit for her pre-injury duties from 15 July 2004;
b) there is no medical certificate or medical report to support a finding that Ms Gibson was partially incapacitated for her pre-injury duties from 1 August 2004 to 24 August 2004, and
c) Ms Gibson had previously resigned from her employment with Coles with the resignation effective from 1 July 2004.
Ms Gibson submits:
a) the Arbitrator accepted her evidence that after her injury she worked in modified duties [paragraph 14 of the Arbitrator’s statement of reasons];
b) the Arbitrator made a finding after hearing her evidence that she was “candid in her evidence” and accepted that she had ongoing symptoms in her back as a result of the injury that prevented her undertaking “unhindered the tasks that she did before the injury” and accepted that she had difficulties bending and that those complaints were consistent with the opinion of Dr Plowman, whom the Arbitrator preferred, and
c) for the period 1 August 2004 to 8 September 2004 the assessment of her ability to earn during this period was by reference to what she would have earned as a part time clerk or courier driver and this factual finding was open to him on the evidence and the Arbitrator’s finding that whilst she demonstrated an ability to work full time after this period, such earnings were not a true reflection of her ability to earn because she had a special and sympathetic employer.
Discussion and findings
Coles challenges the finding of partial incapacity and, by implication the consequent award on the basis that Ms Gibson voluntarily resigned her employment with Coles effective 1 July 2004. From 15 July 2004 she was certified fit for her pre injury duties and there is no medical evidence addressing her capacity for the period from 1 August 2004 to 24 August 2004. I infer from the way this ground of appeal is expressed that the attack on the Arbitrator’s finding in the period from 1 August 2004 to 8 September 2004 is that it is against the weight of evidence and I approach the appeal on that basis.
The Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate (section 354(2) of the 1998 Act). It must, however, act according to equity, good conscience and the substantial merits of the case (section 354(3)).
An Arbitrator’s decision must be based on logically probative evidence. Part 15, rule 15.1 of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides that:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a)evidence should be logical and probative,
(b)evidence should be relevant to the facts in issue and the issues in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)unqualified opinions are unacceptable.”
The Arbitrator accepted the evidence that the Worker had pre-existing back symptoms in her lower back after a falling incident at home in 1999 and after a further incident whilst employed at Cooranbong in 2000. He accepted her evidence that although she experienced aching in her back it did not interfere with her work at Coles. He was satisfied that as a result of continuing symptoms, Ms Gibson was prevented from performing her full pre-injury duties. The Arbitrator also accept the Worker’s evidence that despite obtaining a certificate certifying her fit for pre-injury duties on 28 March 2003, and returning to work, she sought and obtained assistance from co-workers with lifting and bending activates. Further, he noted that she had been transferred to the bakery and her duties were modified because she could avoid heavy lifting. He stated at page 30, lines 32 - 39 of the transcript:
“To my mind, that indicates to me that subsequent to the injury the applicant continued to experience symptoms in her back that did affect her ability to undertake unhindered the tasks that she previously did before the injury...the evidence establishes that there were as a consequence of the injury on 14 December 2002 difficulties that she then commenced experiencing regarding lifting and bending.”
The Arbitrator was satisfied that this conclusion accorded with that of Dr Plowman, whom the Arbitrator summarised as saying “…the injury on that date (14 December 2002) resulted in the applicant having difficulty with her pre-injury employment and any work that would involve regular bending, lifting or carrying where there is regular heavy use or strain on either her upper or lower back” (transcript page 30 lines 44 - 51). He placed little to no weight on the WorkCover certificate from Dr Boleyn (incorrectly named as Dr Bolin in the transcript) because it was brief, lacking in details, was unsigned and in addition given the Worker’s transfer to the bakery, the certificate “could well mean … that she was able to do…the activities in which she was engaged after she was transferred to the deli [sic- bakery] department” (transcript page 31, lines 13-16).
The WorkCover medical certificate, from Dr Boleyn refers to the Worker being employed as a bakery assistant working 20 hours per week and suffering a flare up of back pain after wheeling a trolley full of bread. The certificate certified the Worker fit for pre-injury duties on 15 July 2004.
The Arbitrator noted that Dr Bye diagnosed the Worker as suffering a musculo-ligamentous injury, an aggravation of asymptomatic degenerative changes, and an aggravation of the pre-existing low back and left sciatic pain. The Arbitrator noted that the doctor had relied on an incorrect history that the Worker had been off work for six months at the time of his examination, when in fact she had been off work for approximately six weeks. This error in the doctor’s history has not been corrected and it was on that incorrect history that Dr Bye relied in his failing to understand Ms Gibson’s level of incapacity. The Arbitrator inferred that the doctor believed that the Worker’s symptoms should have resolved, and that he failed to explain, other than with the passage of time why the symptoms should have resolved.
In relation to the WorkCover certificate of Dr Boleyn, I agree with the Arbitrator that it probably refers to the Worker’s fitness to return to work in the bakery and it is not a clear certification of fitness to work in the delicatessen, a conclusion which Coles appears to acknowledge in the notations in the file note made after the meeting on 1 July 2004 and signed by Ms Fitzsimmons and Mr Faber, which reads at paragraph 5:
“Michelle also explained to Suzanne after her original injury
Suzanne was put on part time hours from casual and moved to a department without as much heavy lifting.”
Whilst Coles’ submission that there is no contemporaneous medical evidence to support a finding of partial incapacity for the period 1 August to 8 September 2004 is correct, the Arbitrator accepted the Worker’s evidence that whilst she had been certified fit for her pre-injury duties she continued to experience problems and relied on assistance from colleagues to undertake some of her duties. Further, Coles’ decision to transfer Ms Gibson to a permanent part time position in the bakery appears to have been, at least in part, motivated by a desire to provide her with suitable employment that minimised the heavy lifting required of her in the delicatessen.
There was a paucity of medical evidence available. The primary medical evidence was the two medico – legal reports of Drs Plowman and Bye, both of which are dated in August 2004. Whilst the medical evidence was very limited, the Arbitrator’s reasons as summarised above in paragraphs [75] to [78] clearly disclose his reasoning process. He carefully weighed the medical evidence, together with the Worker’s evidence that she continued to experience symptoms in her mid and lower back, and had ongoing difficulties with a number of activities such as lifting heavy weights and carrying items whilst walking. It was open to the Arbitrator to accept the evidence of the Worker and Dr Plowman that, as a result of the work injury Ms Gibson was unfit for shop assistant work requiring repetitive bending, lifting, pulling and pushing and that she would have difficulties with her pre-injury duties over the opinion of Dr Bye. Although she had been certified fit to return to her pre-injury duties in the delicatessen, she had not in fact been able to perform all of those duties, seeking assistance from co-workers with lifting activities.
There was sufficient evidence that was logical, probative and relevant to the facts and issues in dispute, to support the Arbitrator’s finding that Ms Gibson had an ongoing partial physical incapacity as a result of persisting symptoms in her back that prevented her from performing her full pre-injury duties in the delicatessen at Coles and such a finding was open to him on the evidence and discloses no error of law, fact or discretion.
Prior to addressing the steps in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’), the Arbitrator found that the relevant labour market available to the Worker was:
“part time work involving either clerical positions or the style of work she is doing at the moment, which really could best be described as courier driving so long as that does not –that type of work does not involve her in lengthy periods of driving” (transcript page33, lines 3 - 9).
He did not provide adequate reasons for so determining this labour market, the extent of the part time work assessed, in terms of the number of hours per day and number of days per week or the evidence upon which such a finding was made. Whilst clerical work and courier driving were jobs within the labour market available to Ms Gibson, she also had a demonstrated experience in and capacity to perform managerial work, and was fit to perform most of the activities of a shop assistance with the exception of repetitive lifting tasks.
Having found the Worker was partially incapacitated for work, the Arbitrator noted that he was then required to assess the amount of compensation to be awarded pursuant to section 40 of the 1987 Act, in accordance with the test as set out in Mitchell.
The first step was to determine Ms Gibson’s probable earnings had she continued to be employed in the same or some comparable employment. The Arbitrator stated:
“…by consent, the amended wage schedule was admitted into these proceedings. That contains a document titled “New South Wales Workers Compensation Injury Information details by Coles Myer Limited”. That document was also attached to the respondent’s reply, and it establishes that Ms Gibson was doing 26 hours a week, her shifts were in each week Tuesday and Wednesday between midday and 9.00 p.m. and Sunday of one week between 12.00 and 9.00 p.m. and, in the alternate week, Saturday between 12.00 and 9.00 p.m.” (transcript page 33, lines 16-25).
Counsel for Coles submitted that the probable earnings were $520.00 per week at the commencement of her employment and with a 3% increase per year it would take her probable earnings at the time of the hearing to $550.00 - $560.00 per week (transcript page 22, lines 33-44).
The Arbitrator also referred to the award, attached to the amended wage schedule, which detailed a casual loading of 20% on the base rate and an uplift for the Sunday penalty rate. The Arbitrator accepted the figures contained in the amended wage schedule as reflective of what Ms Gibson would “probably have been earning had she not been injured” (transcript page 33, line 45). The Arbitrator accepted the following as probable earnings for the relevant periods, as detailed in the worker’s amended wage schedule:
$540.00 per week for the period 1 August 2004 to 31 March 2005
$550.00 per week for the period 1 April 2005 to 24 January 2006
$570.30 per week for the period 25 January 2006 to 31 July 2006
$579.90 per week for the period 1 August 2006 to 31 January 2007
$589.20 per week for the period 1 February 2007 to date.
No challenge is made on appeal to the Arbitrator’s findings in relation to Ms Gibson’s probable earnings.
In relation to the Worker’s ability to earn, the Arbitrator found:
“Now, for the first period between 1 August 2004 and 8 September 2004 it seems to me that the evidence establishes that during that time she was working voluntarily for her brother. That was her choice. In other words, she was accepting no income for a reason unconnected with her earning capacity. Therefore, her actual earnings of nil in that period is not a proper test to establish what figure should be utilised in subsection (2)(b) in calculating a reduction in her earnings. It seems to me, based on the evidence, that she was able to work full time for her brother because he was a lenient employer and allowed her some flexibility. So she was not at that stage able to work in a full‑time capacity. It seems to me that really she was limited to working around five hours a day, no more, in some clerical position or, as I said before, some courier‑driving position in which she did not have to drive for any prolonged periods and lift too great an object or too heavy an object.
In all, it seems to me that for that particular time the proper test for her earnings would be what she ultimately earned when working for Central Clutch [sic], which was $377.48 a week. So, for that period, it seems to me that the reduction ‑ that is the period 1 August 2004 to 8 September 2004 ‑ the reduction is $162.52 a week. For that particular period it seems to me that the circumstances were such that it would be proper to award her that amount. There is no factor within that period that would lead me to exercise a discretion to award her some lesser amount” (transcript page 43, lines 9-27) (emphasis added).”
The Worker’s evidence in relation to this period of employment was that she began working for her brother and nephew setting up the motorcycle business “Yee-haa Motorcycles” in July 2004. She worked full time as a manager, and, with the exception of the initial period until 9 September 2004 when she worked voluntarily, she earned $676.00 per week until the business closed in March 2005 (see Ms Gibson’s statement dated 3 May 2007, paragraph [21]).
In cross examination Ms Gibson was asked if she could obtain work similar to what she was doing with her brother would she be capable of doing that work and would she like to do it and she answered “Of course I would” (transcript page 8, line 44).
On questioning by the Arbitrator, Ms Gibson conceded that she worked full time for her brother as a manager. She stated that she was in charge of the store at Morisset and her duties involved bringing in stock, serving customers, paper work and “generally most things” (transcript page 9 line 6). She agreed with the Arbitrator’s description that it was in the nature of “clerical work” and “shop assistant work”. When questioned by the Arbitrator as to whether she could work without back problems she stated (transcript page 9, lines 13-21):
“Q. [Arbitrator] Okay. And were you able to do that work without problems with your back?
A. [Ms Gibson] I had the freedom there to do it anyhow I needed. If I needed a break, I could take it and, yes, I had no problems.
Q. And was that because he was your brother? He --.
A. Yeah --
Q. -- gave you liberty?
A. -- many, many, yeah.”
In submissions before the Arbitrator, Ms Gibson’s solicitor conceded that the Worker would have no entitlement during her employment with her brother, when she was working full time and earning in excess of her probable earnings, however given the fact that her claim for compensation commenced on 1 August 2004, the Arbitrator considered the period from 1 August 2004 to 8 September 2004, when she worked voluntarily for her brother
The Arbitrator correctly noted the authority of Pira Pty Limited v Tucker (1996) 14 NSWLR 26 (‘Pira’) that a worker’s actual earnings are prima facie evidence of his/her ability to earn (section 40(2)(b)), unless it is established that the worker’s actual earnings are not a proper test.
None of the medical evidence certified any limitations in respect of work hours.
Ms Gibson’s evidence was that she worked fulltime performing the same work during this period, as she continued to perform for a further seven months until the business ceased operating at the end of March 2005. Ms Gibson performed a variety of duties including stock control, serving customers and clerical and paper work. After specific questioning by the Arbitrator, Ms Gibson said that she was free to move around and change position and her brother gave her liberties, although no evidence was lead detailing exactly what flexibility or concessions were made, other than she could take breaks as required. No explanation was given as to why she was unpaid for this period, but immediately after it, and for a further eight months, she continued to perform the same work and was paid $676.00 per week.
Whilst a worker’s actual earnings are prima facie evidence of ability to earn, that is not always the case and is not the case if the evidence establishes that the actual earnings are not the proper test, because there is some reason unconnected with the worker’s earning power which made them lower than they should be (Pira at 31-32). In that situation it seems appropriate to consider the value of the worker’s labour to the business or the value of the worker’s labour on the open labour market for the work being performed.
The circumstances of Ms Gibson working in her brother’s business but receiving no income, is analogous to situations where a person is working in his or her own business and, despite working full time, the worker is not receiving any income (or, only a modest income) because the business is not profitable. In assessing a claim for compensation for partial incapacity in such a situation, a determination must be made of the value of the person’s labour (Hill v Bryant [1974] 2 NSWLR 423 at 428). That determination is made by either assessing the worth of the person’s work to the business, or by calculating what it would cost the business to employ someone else to do the work (see J H. Timbers Pty Ltd v Nelson (1972) 126 CLR 625 at 631 (‘Nelson’) and Cage Developments Pty Limited v Schubert [1983] CLR 584 at 588 (‘Schubert’).
In determining whether Ms Gibson’s physical incapacity has resulted in an economic incapacity for the period from 1 August 2004 to 8 September 2004, the Arbitrator’s finding that Ms Gibson was only fit for part time clerical of 5 hours per day or part time courier work, and his calculation of her ability to earn by reference to her earnings of $377.48 per week, which she later earned whilst employed by Central Coast Clutch and Brake as a courier driver in 2006, was not a finding supported by the evidence in relation to this particular period, nor was it correct to calculate her ability to earn by reference to her subsequent earnings in a different form of employment. The test to apply is that articulated in paragraph [98] above. That test requires the assessment of the value of her labour to the business or what it would cost the business to employ someone else to undertake that work. Ms Gibson performed the same job throughout her employment in her brother’s business and was remunerated for this work in the week following the period claimed and each week thereafter until the business closed. On the evidence available, her weekly earnings of $676.00 during the remainder of her employment, is a good guide as to the value of her labour to the business and /or the cost of employing someone else to do her job.
Whilst I am not satisfied that the Arbitrator erred in finding that the Worker has an ongoing partial incapacity for work as a result of the work injury on 14 December 2002, I am satisfied that the Arbitrator erred in his reasoning in relation to the assessment of compensation for partial incapacity during the period 1 August 2004 to 8 September 2004, and this first ground of appeal is made out.
Ground 2
Did the Arbitrator err in finding that Ms Gibson was incapacitated and the degree of that incapacity from 1 April 2005 to 24 January 2006?
Coles submits:
a) prior to 1 April 2005, Ms Gibson showed a capacity to work full time in a management position earning $676.00 per week and had the business not closed she would have continued to perform these duties to date “with a displayed capacity to earn equal to her comparables”;
b) the medical evidence does not support a finding of partial incapacity and her employment at the motorcycle shop displayed a prima facie capacity to earn wages equal to her comparables for a period of eight months;
c) the medical evidence does not support a finding of partial incapacity during this period to result in a loss of earnings calculated at the maximum statutory rate and there is no contemporaneous medical evidence to support such a finding;
d) the reports of Dr Bye dated 30 August 2004 and Dr Plowman dated 24 August 2004 “indicate a view that the respondent is fit to perform full-time suitable duties, subject to appropriate restrictions”, work like she was performing at the motor cycle business;
e) whilst employed by Penny Miller Home Shopping the Worker demonstrated a capacity to work full time in alternative duties, and
f) the Worker was not “significantly partially incapacitated” and was not entitled to an award of compensation for partial incapacity for a worker with a dependant child at the maximum statutory rate. “Factually and medically such a finding is implausible.”
Ms Gibson submits:
a) between 1 April 2005 and 30 September 2005 the Arbitrator overlooked the fact that she was not working and based on probable earnings of $550.00 per week and an ability to earn of $377.48 per week, she should have been awarded $172.52 per week, and
b) the award of compensation for the period between 1 October 2005 and 16 March 2006 is sustained on the basis that “she had no other capacity to earn during that period because all her efforts were directed to making a success of the opportunity which was available to her. It was not a deliberate decision to enter into non-remunerative employment.”
Discussion and findings
In relation to the period from 1 April 2005 to 26 January 2006, the Arbitrator noted that from 1 April 2005 until 1 October 2005, Ms Gibson was unemployed and from 1 October 2005 to 24 January 2006 she was employed by Penny Miller in a home based work from which did not generate any income.
In assessing the Worker’s entitlement to compensation throughout both these periods, the Arbitrator stated at page 34, lines 48-54 to page 35, line 1-3 of the transcript:
“Thereafter [after 31 March 2005], the evidence establishes that she was without employment at all until I think it was 1 October 2005, when she commenced the home-based employment with Penny Miller. However, that activity did not generate any income. It seems to me that the respondent has not established for that particular period that there was some reason unconnected with her earning capacity such that her actual earnings are not a proper test for the subsection (2)(b) of section 40 in calculating the reduction in her earnings. Therefore, until she commenced employment with Central Coast Clutch [sic] on 25 January 2006, the reduction in her earnings - $550 a week ‑ that would actually bring in the stat rate, wouldn't it?” (emphasis added)
The Arbitrator then proceeded to assess the award based on the statutory rate for a worker with one dependant child, under section 37 (1) of the 1987 Act for the entire period from 1 April 2005 to 24 January 2006, covering both the period in which she was unemployed (1 April 2005 to 1 October 2005) and the period she was employed in the home based business from which she derived no income (1 October 2005 to 24 January 2006).
In relation to the period in which the Worker was unemployed, the Arbitrator was required to determine the Worker’s ability to earn in some suitable employment (section 40(2)(b)) taking into account the provisions of section 40 (3) including a determination of the available labour market and having regard to suitable employment within the meaning of section 43A.
Ms Gibson’s solicitors have conceded the error made by the Arbitrator in relation to the period from 1 April 2005 to 1 October 2005 and they submit on appeal that the award of compensation for this period should be based on the Arbitrator’s earlier finding of an ability to earn of $377.48, and the difference between this and her probable earnings reflects the proper award to be made.
In relation to the period in which Ms Gibson was employed by Penny Miller, Ms Gibson’s evidence was that this work was part time and based at home and involved her collecting money from distributors of a home shopping catalogue and her taxable income, after expenses were deducted was $nil. In cross-examination Ms Gibson confirmed that her role involved supervising and assigning work as the area manager. She stated in relation to her lack of earnings “it was commission work and you just ran it as a business, and the business ran at a loss” (transcript page 6, line 45-46). Ms Gibson explained that she had expected to earn $300.00 to $400.00 per week and that whilst it was advertised as a casual job it required full time hours (transcript page 7).
The evidence in relation to this period of employment is extremely limited. Whilst the Worker predicted she would have an earning capacity from this work of $300.00 to $400.00 per week, the basis for this prediction was not disclosed, nor were the hours she was required to work to earn this amount. The Worker however attempted to make a success of the job, working fulltime hours in a part time position, but it clearly failed to be a viable job.
The Arbitrator’s finding that the $nil earnings during this period were a true reflection of her ability to earn and that the onus lay on the Respondent to establish that there was a reason unconnected with her “earning capacity such that her actual earnings are not a proper test for the subsection (2)(b) of section 40 in calculating the reduction in her earnings” (transcript page 34, line 54), based on the test in Pira, failed to acknowledge that the evidence established that Ms Gibson had a capacity to engage in the duties required of the position on a full time basis and it was the fact that the business ran at a loss, not that her physical limitations as a result of the work injury prevented her from earning any income in this period.
I accept the Appellant’s submission that Ms Gibson demonstrated a capacity to work full – time, but as previously noted in paragraph [98] above this does not finally determine whether she has an economic incapacity. The value of the Worker’s labour to the business should be established by either assessing the worth of the person’s work to the business, or by calculating what it would cost the business to employ someone else to do the work, in accordance with the authorities of Nelson at 631 and Schubert at 588 as referred to in paragraph [98] above.
Whilst I accept Ms Gibson’s solicitors submission that there was no evidence that she deliberately entered work that was non-remunerative, I reject the submission made by Ms Gibson that because all her efforts were directed to making the best of the opportunity she had no other capacity to earn. In assessing the Worker’s ability to earn in suitable employment during this period, the Arbitrator was required to assess the value of the Worker’s labour to the business she was then engaged in. The failure to make that assessment constitutes an error of law.
For the reasons stated above the second ground of appeal is upheld.
Ground 3
Did the Arbitrator err in finding that Ms Gibson had an ongoing incapacity at all and the degree of that incapacity from 25 January 2006 to date and continuing?
Coles submits that:
a) since January 2006 the Worker has demonstrated “only minimal incapacity” having worked in alternative duties as a casual delivery driver with Central Coast Clutch and Brake;
b) under cross-examination Ms Gibson conceded that she could perform these duties full time but her childcare responsibilities limit her to three days per week;
c) the Worker concedes that if she could obtain work similar to the work at the motorcycle business she was physically capable of performing such work full time, and
d) the Worker has not served any updated medical evidence in relation to her current level of incapacity. The most recent report is Dr Plowman dated 24 August 2004.
Ms Gibson submits:
a) the Arbitrator accepted that the her average weekly earnings of $377.48 per week is the measure of her ability to earn in the period 25 January 2006 to 10 July 2006;
b) the transcript discloses that she gave evidence that she could not work full time as a delivery driver but that she could do five half days a week, evidence accepted by the Arbitrator;
c) the work she performed for the motorcycle business was not available to her on the open labour market after April 2005 when the business ceased operating. The Arbitrator found that she was able to do this work “because of the leniency and flexibility of her employer, namely her brother”;
d) the parties agreed that her pre injury hours were 26 per week or 3.25 days per week. Penalty rates applied Saturday and Sunday and as a result of her injury she lost the capacity to obtain employment of that kind and suffered a loss of earnings. The Arbitrator assessed her capacity to earn at $425.00 based on 3 days driving work per week. The loss of earnings of $164.20 arises from the loss of penalty rates in her pre-injury work and there is no error of fact or law in the Arbitrator’s award, and
e) the Arbitrator accepted the evidence of Dr Plowman that she had suffered a permanent injury and impairment, and a permanent incapacity for work.
Discussion and findings
During the period from 25 January 2006 to 9 July 2006 Ms Gibson was working part time as a courier driver with Central Coast Clutch and Brake. Ms Gibson stated that she usually worked three to four hours per day, Monday to Friday and sometimes she worked five hours per day. In cross-examination she conceded that on occasion she worked more than five hours in the day (see transcript page 7, line 47). Further she conceded that she was required to lift items but could not estimate the weight of those items.
Ms Gibson denied that she could work full time as a delivery driver, stating that because she experienced increased back pain with long hours of diving, she could only work half days five days per week. No evidence was lead as to her hourly rate and the only evidence of her earnings was that her average weekly earnings in this job were $377.48.
None of the medical evidence detailed any limitations in relation to driving activities specifically, although she informed Dr Bye in August 2004 that she had a sitting tolerance of 15 minutes. Her work history since giving the doctor that history suggests that her tolerance has improved. Further, Dr Bye noted that she could drive provided she sat upright. Dr Plowman assessed the Worker as unfit for shop assistant work requiring repetitive bending, lifting, pulling, pushing and carrying and that she would have difficulties with her pre-injury duties and any work requiring regular heavy use and strain on either her upper or lower back.
In responding to a question from the Arbitrator about the effect if any, on her back when she was required to work more than five hours per day, Ms Gibson stated at transcript page 9, lines 43-50:
“It would affect you towards the end of the day but it wasn't that you were sitting the whole time. You were in and out of the vehicle. So it wasn't as though you were stuck in the one place. So it wasn't as bad as if you were sitting at a job where you're in a stationary position the whole time. I find if I have to drive a really long distance without getting out of the car, I have more than if I'm doing delivery work, where I'm able to get out and in.”
The Arbitrator’s reasons clearly demonstrate that he applied the authority of Pira and found that Ms Gibson’s actual earnings during this period were the proper test of her ability to earn, and there was no reason unconnected with the worker's earning capacity which would cause that figure to be adjusted. This finding was open to the Arbitrator on the evidence.
Whilst not expressly stating that he applied the test in Mitchell, it is apparent from his reasons that the Arbitrator deducted the Workers average earning of $377.48 from her probable earnings of $570.30, resulting in a figure of $192.82. The Arbitrator found that this figure was appropriate and there was no evidence upon which he should exercise his discretion to reduce the amount. I am not satisfied that the Arbitrator erred in his finding and determination in relation to this period of the claim.
The next period from 10 July 2006 to 31 January 2007, was when the Worker voluntarily took herself out of employment due to her advancing pregnancy and the birth of her third child in October 2006. Her evidence was that she was not in a position to seek or obtain work from 10 July 2006 until at least the end of January 2007, due to her child caring responsibilities. During this period of time the Arbitrator awarded compensation at a rate of $50.00 per week. His reasoning in the assessment of this period was again brief but is clearly based on his early findings in relation to probable earnings and ability to earn ($377.48). However, during this period he applied his discretion under section 40(1) to reduce the amount awarded to $50.00 per week. I am not satisfied that the Arbitrator erred in fact, law or discretion in his determination of the award of compensation during this period.
The Arbitrator accepted the Worker’s evidence that from 1 February 2007 to 10 May 2007 she was job seeking. Her evidence was that during this time she was seeking clerical work or courier driving work. In response to questions from the Arbitrator, Ms Gibson stated that she had not looked for full time work because of her child caring responsibilities. Ms Gibson initially stated she would be unable to work more than three days due to caring for her child and later stated that she did not believe that she could do courier work full time five days a week because of her back symptoms but could work part time hours five days per week.
In relation to this period, the Arbitrator was satisfied that Ms Gibson was seeking employment, and in determining her ability to earn the Arbitrator accepted that her earnings in her previous position with Central Coast Clutch and Brake, working three days per week and earning $377.48 was evidence of her ability to earn. The Arbitrator’s reasons are brief. It appears that he deducts this amount from her probable earnings of $589.20. This however results in a reduction of $211.72 per week not $209.20 as found by the Arbitrator. The Arbitrator found no evidence to justify the exercise his discretion to reduce the amount and made an award of compensation of $209.20 per week. Apart from the mathematical error the Arbitrator has not analysed the full extent of the labour market open to Ms Gibson during this period. He failed to consider her capacity of clerical work and the managerial skills deployed whilst working for her brother in the motorcycle shop. Ms Gibson demonstrated a capacity to work for an eight-month period from July 2004 to the end of March 2005, only ceasing that employment because the shop closed. He erred in failing to articulate why he restricted Ms Gibson’s capacity to only part time hours, particularly in the absence of medical evidence to support such a finding and whether that was due to her physical incapacity or child caring responsibilities. The decision in relation to the period 1 February 2007 to 10 May 2007 must be revoked.
Ms Gibson secured her current part time job with Home Entertainment Express on 10 May 2007, and is paid on a commission basis for this work. Her duties involve clerical work and delivering DVDs to residential address and libraries. Ms Gibson stated that in her current job she was only working one day per week and occasionally she was called in to work a second day. Her evidence in relation to this work was as follows:
“Q. [Arbitrator] So at the moment you’re working a few days a week. Is that---
A. [Ms Gibson] I only work basically one day a week, and then I’m called in occasionally on the second day if needed.
Q. But physically are you able to work five days a week?
A. It would depend on the job. It would depend on the job.Q. The type of job you're doing at the moment, which is collecting, driving, as I understand it, driving, collecting small items?
A. I don't know. I think probably three days a week, maybe. I don't know about sitting in a car for five days a week. I'd have to do it to know.Q. Okay. Is that what you were doing with Central Coast and Clutch [sic] ‑ five days a week?
A. Five days a week, but limited hours during those days. So you're talking about full time five days a week, aren't you, now?Q. Well ‑ so you don't think you could do full time five days a week ‑‑
A. Full time ‑‑Q. ‑‑ driving a car?
A. - five days a week. If it was half days again, then probably I could handle the five days a week but not full days.” (transcript page 10. lines 13-42)
Reference is made in the transcript to pay slips relevant to that employment and Ms Gibson confirms after perusing the payslips that her weekly earnings vary, but the most she has earned in this job is $255.25 per week.
“Q. [Mr Mantach] Thank you. And looking through the pay slips we can see that the gross figures vary, and you're now looking through those documents with me, and the highest earnings that you've had since 10 May 2007 have been $255.25. Is that correct?
A. [Ms Gibson] Yes.” (transcript page 3, lines 19 to 24)
Before the Arbitrator Ms Gibson’s solicitor submitted that Ms Gibson had a maximum capacity for work of 20 hours per week doing the type of work she was performing for Central Coast Clutch and Brake, and earning approximately $380.00 per week in this work.
On behalf of Coles, Mr Newton submitted that the true reflection of Ms Gibson’s capacity to earn was what she was earning whilst employed full time in the motorcycle business. In respect of both the time Ms Gibson was off work prior to, and after, the birth of her third child, and in her current employment, she was choosing to work up to three days a week, her current work delivering the videos is very light work, and in applying the discretion based on the evidence of her child caring commitments, Ms Gibson would be entitled to an ongoing award of approximately $50.00 per week.
There is an obvious error of fact in the Arbitrator’s assessment of the Worker’s entitlement to compensation. He stated that in respect of her current job:
“her evidence was that she does no more than three days a week. Her highest income since she commenced that employment, which I infer would be a day a week and when she did three days a week, was $255.25” (transcript page 32, lines 47-51)
and at transcript page 36, lines 18 the Arbitrator said:
“Now, from 10 May 2007, when she commenced her current employment, she indicates that she earns $255 a week – sorry, $255.25 a week when she works three days a week.” (emphasis added)
These conclusions by the Arbitrator are not based on the Worker’s evidence. Ms Gibson stated to a question posed by the Arbitrator himself, that she only works one day and occasionally two days a week in her current job. The evidence however is not clear in relation to whether the Worker has been working full time hours or part time hours in the days she works in her current job.
The Arbitrator found that Ms Gibson earns $255.25 when she works three days. He extrapolates from that evidence that if Ms Gibson worked five days per week, her earnings would be $425.00 per week. That finding was not in my view open to the Arbitrator on the evidence. The worker gave clear evidence she only worked one day a week and occasionally two days (see paragraph [125] above).
Ms Gibson’s pay records for this work were shown to her during her evidence in chief, but it is not clear whether the Arbitrator had the benefit of seeing them. They were not tendered in evidence.
The Arbitrator declined to further reduce the amount he determined as the difference between Ms Gibson’s ability to earn and her probable earnings through the exercise of his discretion and stated:
“To my mind, in the circumstances, such in this case, it would be proper to award her that amount. There is no - the fact that she's looking after her child for some of the time now is not a circumstance that would lead me to exercise my discretion in reducing that amount because the fact is that that circumstance has been taken into account in establishing what her ability to earn in suitable employment is ‑ in other words, in working out that figure, I have treated her as though she is not looking after a child.” (transcript page 36, lines 45-54)
It has been held to be appropriate to use the discretion to reduce the arithmetical difference between steps 1 and 2 of the Mitchell analysis in the following situations: where the worker has retired or suffered some supervening illness or injury (Nicholson at 55, and Australia Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87); where the worker had been retired for two years before the injury which occurred during a short period of work which was a one-off job (Pratt v Claydon (1996) 14 NSWCCR 86); where the worker was imprisoned during a period of partial incapacity (Stranlund v Mid Coast Meat Co Pty Ltd (1999) 19 NSWCCR 91), since the injury the worker has been dismissed because of a criminal conviction (Morgan v Commissioner for Railways [1972] WCR 33); in a situation where before the injury the worker chose to work for only limited periods each year (May v Eisenhower [1967] WCR 137), and in circumstances where the worker was pregnant (Wrigley Co Pty Ltd v Holland (2002) NSWCCR 463).
It is clear from the passage quoted at paragraph [134] above that the Arbitrator took into account the fact that Ms Gibson was limiting her availability for work to three days a week due to her child caring responsibilities in assessing her ability to earn in step 2 of Mitchell. In assessing the Worker’s ability to earn the Arbitrator was required to determine the injured Worker’s ability to earn in some suitable employment in the general labour market reasonably accessible to her (section 40(3)) and taking into account the factors in section 43A. In my view the fact that the Worker was voluntarily limiting her availability to work to three days per week due to her child caring responsibilities should have been taken into account as a discretionary factor under section 40(1) and at step 4 of the Mitchell analysis and the Arbitrator’s failure to do so constitutes an error of law.
The Arbitrator has failed to properly apply the law and made errors of fact and law in the assessment of the section 40 award of compensation for this period and as such his decision and award of compensation in respect of the period from 10 May 2007 to date and continuing must be revoked.
Ground 4
Did the Arbitrator err in concluding that Ms Gibson’s employment continues to be a substantial contributing factor to any ongoing incapacity for work?
Coles submits that:
a) the Worker fails to meet the test in section 9A “in terms of medical evidence that the respondent’s employment continues to be a substantial contributing factor”;
b) the Worker has not served any updated medical evidence after Dr Plowman’s report dated 24 August 2004, and
c) Dr Bye in his report dated 30 August 2004 questioned whether there remained any causal connection between the incapacity and the injury.
Ms Gibson submits:
a) the Appellant did not raise Section 9A in its reply, at the teleconference or at the arbitration hearing,
b) section 9A is relevant to injury but not to incapacity, and
c) the relevant test is whether the incapacity results from the injury.
Discussion and findings
The Worker is correct in that the test in section 9A is that employment must be a substantial contributing factor to the injury and not the incapacity. What was in issue at the arbitration hearing was the causal link between the work injury and the ongoing incapacity. The Appellant’s submission that the Worker’s evidence fails to meet the test in section 9A “in terms of medical evidence that the respondent’s employment continues to be a substantial contributing factor” is misconceived. Section 9A is only relevant to determining injury and not the issue of whether the incapacity results from the work injury on 14 December 2002.
The test of whether a Worker’s incapacity has resulted from the injury is the test set out in the judgment of Kirby P, (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 464:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
For the reasons already stated in paragraphs [82] to [84] above, the Arbitrator’s finding that the Worker continued to suffer ongoing symptoms as a result of the injury to her back in 14 December 2002 was available to him on the facts and evidence and this ground of appeal fails.
DECISION
Paragraphs 1 (a), (b), (c), (f) and (g) of the Arbitrator’s decision dated 18 September 2007 are revoked and the matter is remitted to another Arbitrator for determination in accordance with the reasons in this decision.
Paragraphs 1 (d) and (e), Paragraph 2 and Paragraph 3 of the Arbitrator’s decision dated 18 September 2007 are confirmed.
COSTS
No order as to costs of the appeal.
Greg Keating, DCJ
President
14 February 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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