Comfair Pty Limited t/as Grafton Airconditioning and Refrigeration v Lucas
[2008] NSWWCCPD 76
•23 July 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Comfair Pty Limited t/as Grafton Airconditioning and Refrigeration v Lucas [2008] NSWWCCPD 76 | |||||
| APPELLANT: | Comfair Pty Limited trading as Grafton Airconditioning and Refrigeration | |||||
| RESPONDENT: | Matthew John Lucas | |||||
| INSURER: | GIO General Limited | |||||
| FILE NUMBER: | WCC9162-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 5 March 2008 | |||||
| DATE OF APPEAL DECISION: | 23 July 2008 | |||||
| SUBJECT MATTER OF DECISION: | Partial incapacity; ability to earn (Section 40 (2)(b) of the Workers compensation Act 1987). | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Hicksons Lawyers | ||||
| Respondent: | S&P Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 5 March 2008 is confirmed. | |||||
| The Appellant is to pay the Respondent’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 2 April 2008 Comfair Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 5 March 2008.
The Respondent to the Appeal is Matthew John Lucas (‘the Respondent’).
The Respondent who is 31 years of age, commenced employment with the Appellant on a date in June 2006 as an Air-conditioning Technician (Installer), initially employed as a casual and made a permanent employee on or about 3 August 2006.
On 14 September 2006 the Respondent was injured in the course of his employment when he fell from a ladder causing a significant injury to his left wrist which was later diagnosed as a comminuted fracture of the distal radius and ulna.
The Respondent was transported to Grafton Base Hospital where he came under the care of Dr Darrin Marshall, Orthopaedic Surgeon. Surgery was conducted to stabilise the fracture on 18 September 2006 at which time plates and K-wires were inserted. The Respondent’s medical treatment following that procedure included application of a full plaster cast which remained in place for approximately 4 weeks, physiotherapy treatment and removal of the plates and wires which occurred in mid March 2007.
The Respondent claimed and was paid compensation benefits by the Appellant’s Insurer. Weekly compensation benefits ceased on 30 April 2007. The Respondent has remained absent from work since the date of the subject injury.
On 30 November 2007 an Application to Resolve a Dispute (‘ARD’) was filed on behalf of the Respondent with the Registry of the Commission by his Solicitors. That ARD sought a determination by the Commission of the Respondent’s entitlement to weekly benefits from 1 May 2007 to date and continuing. That dispute came before an Arbitrator on 25 February 2008 for conciliation and arbitration. A Certificate of Determination issued on 5 March 2008.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 5 March 2008 records the Arbitrator’s orders as follows:
“1. Respondent to pay $361.30 per week from 2 May 2007 to 30 September 2007 and $365.00 per week from 1 October 2007 to date and continuing pursuant to s40.
2. Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i) Whether the Arbitrator erred in determining that the Respondent was incapacitated and thereby entitled to an award of weekly compensation given the evidence that he was “fit for his pre-injury duties”.
(ii) Whether the Arbitrator erred in relation to his conclusions as to the Respondent’s ability to earn in some suitable employment as provided by section 40(2)(b) of the Workers Compensation Act 1987 (‘the 1987 Act’).
(iii) Whether the Arbitrator erred in failing to give adequate or sufficient reasons for his determination concerning the Respondent’s post injury ability to earn.
The matters enumerated above are more fully set forth in the Appellant’s Submissions dated 1 April 2008 which accompany its Application.
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 the Parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
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 amount of compensation at issue on the appeal exceeds the sum of $5,000 and is at least 20% of the amount awarded in the decision appealed against and thereby the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
There is before the Commission a transcript of proceedings (including oral evidence, submissions of the Parties and the Arbitrator’s reasons for decision (‘Reasons’)) conducted before the Arbitrator on 25 February 2008 (‘transcript’). The Arbitrator (at pages 1 and 2 of transcript) summarises that documentary evidence which was before him. In summary that material included the Respondent’s ARD together with all documents attached thereto, a Wages Schedule registered with the Commission on 29 November 2007 and the Appellant’s Reply together with all material attached thereto (which, it was noted, was under cover of an Application to Admit Late Documents registered with the Commission on 24 December 2007).
The evidence relied upon by the Respondent included a Statement made by him bearing date 20 September 2007. It is noted at page 2 of the transcript that an application made on behalf of the Appellant to cross-examine the Respondent was granted by the Arbitrator. It is recorded that the Respondent’s evidence was “sworn” and that evidence is recorded between pages 2 and 16 of the transcript.
The Respondent’s Statement dated 20 September 2007 addressed the circumstances of his injury and his subsequent medical treatment. The Respondent proceeds to summarise the content of numerous medical certificates with respect to his fitness (or otherwise) for duties issued by various practitioners. It is stated that Dr Witt, General Practitioner, certified that the Respondent was “fit for suitable duties from 20 November 2006 to 8 December 2006”. The Respondent proceeded to state that he remained certified as “fit for suitable duties” until “the plate and screws were removed by Dr Marshall on 15 March 2007”. It was further stated that the Respondent did not return to suitable work with the Appellant as no such work was available.
The Respondent’s Statement further records that he was certified as unfit to work up until 29 April 2007 following removal of the plates and screws from his wrist. The Respondent (at paragraphs 26 to 30 inclusive of his Statement) records:
“26. In a report dated 29 March 2007, Dr Marshall indicated that ‘in about four weeks’ time’ I should be able to return to normal duties. However I have not seen Dr Marshall since he took out the plate and screws on 15 March.
27. Based on the report of Dr Marshall on 28 March, GIO ceased paying workers compensation benefits to me, without notice, on 30 April 2007.
28. As a result of being denied these benefits, on 2 May 2007 I attended Dr Witt in Lismore. Dr Witt rang the insurer while I was there. He certified that in his opinion I was fit for pre-injury duties. He spoke to my Case Manager Alana Bain and notified me I would probably receive a reduced rate of the award rate from thereon. I was told to find new employment or to go on a rehabilitation programme and that my benefits would keep being paid. I was unaware of what the pre-injury duties certificate meant at that time.
29. In a letter to Centrelink also dated 2 May 2007, Dr Witt confirmed that in his opinion I was fit for pre-injury duties. However, he also stated that I would need ‘assistance in re-entering the workforce’ and that I had ‘some residual disability’ in my left arm.
30. I do not believe Dr Witt understood the nature of my pre-injury duties. These involved a lot of heavy lifting and carrying, pushing and pulling, repetitive grasp and release of tools, as well as using my arms to climb and to access low areas and roof spaces.”
The Respondent (at paragraphs 36 and 37 of his Statement) records that his left wrist is “sore and quite weak” and proceeds to describe restrictions as to strength and dexterity in his left hand. It is asserted that he “cannot perform a significant number of the physical requirements” of his occupation.
The Respondent’s pre-injury duties were summarised in a Table which was compiled by Konekt Australia Pty Ltd which document is attached to the Respondent’s ARD.
A Functional Capacity Evaluation Report by Ms Catherine Beal, Occupational Therapist, dated 25 October 2007 is among those documents attached to the Respondent’s ARD. That evaluation report contains a recommendation which states that the Respondent was then “most suited to light work …” and the report proceeds to outline certain restrictions on workplace activities.
A number of WorkCover NSW Medical Certificates issued by various Medical Practitioners are attached to the Respondent’s ARD. Of particular relevance to the present appeal is an undated certificate issued by Dr Marshall which certified the Respondent as being unfit for work from 28 March 2007 to 29 April 2007 and further states that the Respondent “is fit for pre-injury duties from 30.4.07”.
Attached to the Respondent’s ARD was a medical certificate issued by Dr Brian Witt dated 2 May 2007 which under the heading “Fit for Work” it is stated that the Respondent “is fit for pre-injury duties”.
The Respondent’s evidence also included a medical report from Dr Witt dated 2 May 2007. That report was addressed to Centrelink and it was there noted:
“… The hardware was removed six weeks ago and he is now fit for normal duties. He will need assistance in re-entering workforce with his prolonged time off work and some residual disability left distal forearm.”
A medical certificate issued by Dr Paul Dance dated 6 July 2007 states, under the heading “Fitness for Work”, that the Respondent “is fit for suitable duties from June 18th 2007 to July 18th 2007”. That certificate does not contain any detail as to appropriate restrictions concerning work capability. Other certificates issued from the practice of Dr Dance were also attached to the Respondent’s ARD.
The latest dated certificate relied upon by the Respondent is one issued by Dr Dance dated 17 September 2007 which certifies the Respondent as being fit for suitable duties from 17 September 2007 to 17 October 2007. That certificate notes that the Respondent then had the capability of lifting “ 0.5 kg ”. The certificate also stated that the Respondent:
“should not perform strenuous or repetitive activities using the left wrist. Worker requires RTW assessment and subsequent RTW plan for the above reasons.”
The Wages Schedule referred to above notes that the Respondent’s “actual earnings” from 1 May 2007 to date were nil. That document records the Respondent’s “probably earnings” as being $665.00 per week. These financial matters were common ground as between the parties.
The material relied upon by the Appellant before the Arbitrator included certain correspondence which, in the context of this appeal, is non controversial – a number of reports of Dr Marshall addressed to the Appellant’s Insurer, a “Return to Work (Suitable Duties)” plan prepared by Konekt Australia Pty Ltd dated 27 September 2006 and a series of WorkCover NSW Medical Certificates issued by Drs Marshall, Witt and Dance. The last mentioned certificates had, as above noted, been included among the documents relied upon by the Respondent.
The transcript records cross-examination of the Respondent by Counsel then appearing for the Appellant. The matters canvassed during the course of this evidence included the Respondent’s knowledge and understanding of certificates issued by Drs Marshall and Witt concerning fitness for pre-injury duties. The Respondent was also questioned with respect to his own assessment of his capacity to work and, in particular, was questioned as to his own view as to fitness for pre-injury duties and as to his work capacity for light duties. The detail of this evidence is addressed hereunder.
Appellant’s Submissions
Argument relied upon by the Appellant appears in a 23 paragraph document headed “Appellant’s Submissions”. I note that those submissions are in narrative form and there is no specific statement nor identification of the “grounds” upon which the appeal is brought. It is proposed to deal with those submissions which, in my view, identify, at least by inference, the grounds upon which the Appellant relies.
The Appellant, by way of introduction to the submissions makes reference to a number of authorities concerning the power of the Commission to disturb a finding of an Arbitrator upon review. It is asserted (paragraph 7 of Submissions) that:
“The Respondent (sic) submits that the decision in this matter represents an appropriate situation where interference with Arbitrator’s discretionary judgment is justified.”
The Appellant’s submissions proceed to summarise that evidence before the Arbitrator which, it is argued, was relevant to the Arbitrator’s “findings on incapacity”. That detailed summary appears at paragraph 8, subparagraphs (1) – (12). In those subparagraphs reference is made to the Respondent’s own evidence as to fitness for work, the content of various medical reports and certificates, the Respondent’s responses in cross-examination with respect to the extent of his fitness for employment and it is thereafter argued (paragraph 9 of Submissions) that it was the Arbitrator who, in his decision, first raised “the possibility that the Applicant Worker may be unfit for fulltime employment”.
It is further argued (paragraph 10 Submissions) that there was no evidence before the Arbitrator of “… any alleged unfitness on the part of the Applicant Worker to perform some form of suitable duties for around 38 to 40 hours per week”. The Appellant proceeds (at paragraph 11 Submissions) to argue that the Arbitrator failed to give adequate reasons “for his decision to depart from the bulk of the available evidence on this critical issue”.
The Appellant in paragraphs 12, 13 and 22 of Submissions makes reference to what is said to be a finding by the Arbitrator “that the Applicant Worker would only be fit for work 20 hours per week …”. Such suggested finding is examined hereunder.
The Appellant (paragraph 14 of Submissions) accepts that the Arbitrator had “… a measure of discretion available to him” but it is asserted that such discretion “is not so wide as to include a finding that the Applicant Worker would not be fit for fulltime work in the absence of any evidence to that effect …”.
The Appellant’s primary submission (paragraph 16 Submissions) is that “the Worker was at all times fit for his pre-injury duties and that there should be an award for the Respondent.”
The Appellant’s submissions proceed to argue, in the alternative, that the Arbitrator’s finding with respect to the Respondent’s “residual capacity to earn” was “inadequate and inaccurate”. It is argued that an appropriate finding on the evidence would lead to a determination that the Respondent had “a residual capacity of $525.00 per week”.
Having regard to the summary appearing above and the absence of plainly stated “grounds of appeal” it is, in my opinion, reasonably certain that the issues in dispute on this appeal are as stated in paragraph 9 above.
Respondent’s Submissions
The Respondent in his “Written Submissions” which are attached to his Notice of Opposition to Appeal makes the observation, at the outset, that:
“The Appellant’s grounds of appeal are not clearly stated but seem to be based firstly on a submission that the Arbitrator’s findings were not reasonably open for him to make based on the evidence before him.”
The Respondent proceeds in his Written Submissions to argue in support of the Arbitrator’s conclusions of fact and addresses the state of both the documentary and oral evidence before the Arbitrator in support of the general argument that his factual findings were open to him on the evidence and that the appeal must be dismissed.
With respect to the suggestion made on behalf of the Appellant that the Arbitrator had failed in his duty to provide adequate reasons for his decision the Respondent asserts in Written Submissions that the Arbitrator’s reasons were both “extensive and detailed” and it is noted in those Submissions (at paragraph 49) that the Arbitrator had “asked the parties if they had sufficient reasons to understand the basis for the decision”. It is asserted by the Respondent that Counsel then appearing on behalf of the Appellant indicated that he was satisfied with the sufficiency of reasons given.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Zheng where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“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 Appellant in the present matter has, as above noted, addressed the nature of “review” in particular at paragraphs 4, 5 and 6 of Submissions. Those submissions are, in my view, correctly founded upon the authorities there cited. I am guided in the conduct of this appeal by those authorities relied upon as well as those observations of the Court of Appeal outlined above.
It was stated (at paragraph 16 of the Appellant’s Submissions):
“16. Our primary submission is that the Worker was at all times fit for his pre-injury duties and that there should be an award for the Respondent.”
The Arbitrator (at page 26, line 57 transcript) plainly acknowledged the nature of the dispute where it was stated in the course of his Reasons:
“The primary issue before me is whether or not Mr Lucas suffers from a continuing incapacity as a result of that injury.”
The Arbitrator’s ultimate conclusion with respect to this issue was that the subject injury resulted in partial incapacity. Having so determined the Arbitrator proceeded to determine, upon the available evidence, the Respondent’s entitlement to compensation by reason of such incapacity. As noted above the Appellant has not expressly stated the grounds upon which it relies in challenging this finding. It is clear however that the Arbitrator’s conclusion is challenged upon the basis firstly that there was no evidence to support a conclusion of ongoing incapacity or, in the alternative that such conclusion as to incapacity was a finding against the evidence and the weight of the evidence.
As noted above the relevant evidence pertinent to this issue was addressed in detail by the Appellant at paragraph 8 of its Submissions. It is asserted that in his Statement the Respondent “gave no indication that … he was not fit for work on a fulltime basis, within certain physical restrictions”.
Reliance is placed upon the contents of the medical certificate and report of Dr Witt each dated 2 May 2007 and it is put that those documents “stated the Applicant Worker would be fit to return to work”.
It is to be noted that no reference is made by the Appellant to the evidence of Dr Marshall in its Submissions on this Appeal. It was acknowledge by the Arbitrator (at page 27, line 3 of transcript) that the Appellant relied, in part, upon the medical certificate of Dr Marshall (undated) and Dr Marshall’s report dated 28 March 2007 when the decision was taken to terminate the Respondent’s weekly payments.
Reliance was placed by the Appellant in the course of submissions upon the evidence of Dr Witt (medical certificate and separate report each dated 2 May 2007) to support the argument with respect to error by the Arbitrator in failing to conclude that there was no resultant incapacity.
In the course of his reasons the Arbitrator (at pages 27 and 28 of transcript) set forth a careful analysis and evaluation of the evidence outlined above. When dealing with the evidence of Drs Marshall and Witt the Arbitrator stated (at page 27 of transcript):
“ The respondent ceased payments on the basis of two
medical certificates, and I should deal with them in the
5 first instance. The first of those certificates, the one
completed by Dr Marshall, who was the applicant’s
treating orthopaedic surgeon, the certificate before me
is undated but appears to have been completed on or about
28 March 2007. I have before me a report on that10 particular date in which Dr Marshall reports on
Mr Lucas’s condition, and he concludes with the words, “I
have told Matthew there is not much more we can do for
him now and in about four weeks’ time he should be able
to return to his duties as the wrist should be strong15 enough for this.”
It seems to me that on reading that report in conjunction
with the certificate, which then certified him fit for
pre-injury from 30 April 2007, Dr Marshall’s opinion is20 not, in fact, at the time he saw Mr Lucas that Mr Lucas
was fit for work but, rather, he anticipated that there
would be improvement and that he expected within four
weeks’ time he would be fit for work. I have a statement
from Mr Lucas that I will return to later in my reasons.25 At this point Mr Lucas says he did not see Dr Marshall
again after 28 March 2007. It seems to me that
Dr Marshall’s certificate can’t be evidence of the state
of Mr Lucas’s wrist at a later time and it seems to be
properly read that he accepted that there was still some30 degree of incapacity when he last saw Mr Lucas.
The second relevant certificate is one from Dr Witt of
2 May 2007. Dr Witt, I understand, is Mr Lucas’s treating
GP. That certificate, which certifies Mr Lucas fit for35 pre-injury duties, was also accompanied by a report.
Relevantly, that report says:
The hardware was removed six weeks ago and he is now
fit for normal duties. He will need assistance in
40re-entering the workforce with his prolonged time
off work and some residual disability left distal
forearm.
Again, it seems to me that properly read it was not
45 Dr Witt’s opinion that he was fully recovered and, in
fact, fit to resume his full duties then and there but,
rather, he still required some assistance; there was
still some residual disability’; and when read as a whole
it seems to me to be an opinion that left him still not50 yet fit for normal duties when the requirement for
assistance and residual disability is taken into account. .”
It may be seen from the Arbitrator’s reasons as quoted immediately above that the Appellant’s argument that any incapacity had ceased had been rejected. In my opinion the Arbitrator’s conclusion with respect to that issue was open to him on the evidence and it is a conclusion with which I respectfully agree. In the course of his reasons it may be observed that attention is given to the state of the evidence and the question as to what weight should be given to particular features of that evidence. That approach to evaluation of the evidence was proper and, in my view, demonstrates no error in any relevant sense.
The Appellant also challenges the Arbitrator’s conclusion with respect to the evaluation of the Respondent’s ongoing incapacity. Whilst not expressly stated it is patently clear that the Arbitrator’s conclusion was that the ongoing consequence of the subject injury was partial incapacity for work. It appears that the Arbitrator’s conclusion is challenged upon the basis that there was no evidence in support or, alternatively, that the Arbitrator’s conclusion was against the evidence and the weight of the evidence. The Appellant’s submissions with respect to this issue appear, in part in paragraph 8 of Submissions as well as paragraphs 9 and 10 of Submissions. Reference is made to the Applicant’s own evidence and it is put that there was no suggestion made by him that he was “not fit for work on a fulltime basis, within certain physical restrictions”. Reference is made to the CRS Australia assessment conducted on 15 October 2007 and the report of Ms Beal dated 25 October 2007. It is asserted that there is nothing in those documents to suggest that the Respondent was not fit for fulltime employment “within suitable restrictions” and, further, it is said that such a return to work was “specifically envisaged” by Ms Beal in her report.
The Respondent makes the point when addressing the evidence of Dr Dance in the course of submissions that there was nothing contained in that Practitioner’s certificates which suggest “specific restriction on the Applicant Worker’s ability to work in terms of the number of hours per day or days per week for which the Worker would be fit”. It is noted that the most recent medical evidence with respect to incapacity was that contained in the certificates issued by Dr Ng (of Dr Dance’s practice) on 3 September 2007 and that issued by Dr Dance on 17 September 2007.
The oral evidence of the Respondent is referred to at paragraph 8(9) of Submissions where it is put that “the Applicant Worker stated that he believed he would be fit for fulltime work within certain restrictions”. It is also suggested (Submissions paragraph 8(10)) that the Respondent “… conceded that he would be fit for work for a normal 38 hour week if he had the assistance of an Apprentice”. The Appellant does not make reference to any particular part of the documentary or oral evidence when putting this submission.
Reliance is placed (at submission 8(11)) upon the evidence of the Respondent in which it is said he “conceded that he could probably work a 38 hour week doing bar work”. Paragraph 9 of Submissions makes the complaint that “the possibility that the Applicant Worker may be unfit for full-time employment” was first raised by the Arbitrator in the course of his decision. It is further argued (at paragraph 10 Submissions) that there was no evidence before the Arbitrator of “any alleged unfitness on the part of the Applicant Worker to perform some form of suitable duties for around 38-40 hours per week”.
At paragraph 12 of Submissions the Appellant asserts that a “finding” was made by the Arbitrator that the “… Worker would only be fit for work 20 hours per week …”. The Appellant proceeds to argue that such “finding” was “contrary to the weight of the evidence” and further was “not a matter properly open to him, because there was no dispute on the material before him that the Applicant Worker was in fact fit for work in some form of suitable employment for 40 hours per week”.
It may be seen from the submissions put challenging the Arbitrator’s determination as to the extent of the Respondent’s partial incapacity and resultant economic loss the Appellant squarely challenges the Arbitrator’s finding that, having regard to his ongoing incapacity, the Respondent was fit only for part-time work. It is to be noted that the Appellant’s statement that the Arbitrator had made a “finding” as to fitness for work for 20 hours per week is erroneous. No such finding was made. Having regard to the manner in which the Appellant has framed its argument with respect to partial incapacity, including the misstatement as to the suggested “finding”, it is convenient to examine precisely what findings were made by the Arbitrator with respect to this issue in the course of his reasons.
The Arbitrator, having found that the Respondent “would not be able to return to his pre-injury duties at this stage”, proceeded to state in the course of his reasons (transcript page 28, line 26):
“The evidence before me discloses that his comparable earnings but for injury are $665 per week. The question then becomes what would Mr Lucas be able to earn in some suitable employment in his injured state.”
The Arbitrator acknowledged that he “did not have much evidence to assist …” with respect to the question posed as noted above.
The Arbitrator proceeded, in the course of his reasons, to consider the evidence before him which addressed the question of “ability to earn”, a task required of him having regard to the terms of section 40(2)(b) of the 1987 Act. The Arbitrator in the course of those reasons acknowledged the deficiencies in the evidence of Dr Dance. The Arbitrator proceeded to consider the “report from CRS” (relating to the assessment on 15 October 2007 and signed by Ms Beal on 25 October 2007) and that document was characterised as being “the only relevant document” to the question then being addressed. The Arbitrator accepted that the assessment in the CRS report (that of Ms Beal) and its conclusion was “consistent” with the Respondent’s own assessment of his capacity. He then proceeded, correctly in my view, to pose the question “what work in the open labour market does that actually represent?”. The posing of such question indicates conformity with the provisions of section 40(3)(a) of the 1987 Act. That subsection also requires the determination of ability to earn to be made “having regard to suitable employment for the Worker within the meaning of section 43A” (section 40(3)(b)).
Whilst no specific reference was made by the Arbitrator to the provisions of section 43A of the 1987 Act I note no complaint has been raised in submissions by the Appellant with respect to such omission. The relevant provision is section 43A(1) of the 1987 Act and is in the following terms:
“43A Suitable employment
(1) For the purposes of sections 38, 38A and 40:
“suitable employment”, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:(a)the nature of the worker’s incapacity and pre-injury employment,
(b)the worker’s age, education, skills and work experience,
(c)the worker’s place of residence,
(d)the details given in the medical certificate supplied by the worker,
(e)the provisions of any injury management plan for the worker,
(f)any suitable employment for which the worker has received rehabilitation training,
(g)the length of time the worker has been seeking suitable employment,
(h)any other relevant circumstances.”
The task facing the Arbitrator in the present matter concerning assessment of “ability to earn” is one commonly encountered in the course of determination of disputes before the Commission. It is, in my view, hardly surprising that the Arbitrator made no specific reference to the various provisions of the 1987 Act relevant to his task. It is clear, having examined the reasoning process of the Arbitrator, that there has been both careful and, in my opinion, correct adherence to the requirements of the Act as that issue was addressed. Included among those matters addressed by the Arbitrator were the contents of medical certificates and reports in evidence before him, the nature of the Respondent’s pre-injury duties, the assessment of his work capacity contained in Ms Beal’s report of 25 October 2007, the Respondent’s evidence with respect to his present capacity for work and the Respondent’s skills and work experience.
Following a consideration of those matters summarised above the Arbitrator reached the following factual conclusions (transcript page 29, lines 22 – 37):
“ It seems to me that where one is ultimately left is that
a difficult task that falls upon the Commission from time
to time in that the residual earning capacity can’t be
25 defined as being a set number of hours per week in a set
job; it’s what can be earned in the labour market
generally, where what one takes formerly as a physical
capacity and some specialist knowledge is now a capacity
to perform light work not placing a strain upon the left30 wrist. I do note that Mr Lucas has told me in evidence
that he was ambidextrous.
Doing the best that I can, it seems to me that in perhaps
more likely to be part-time than full-time light work he
35 would be capable of earning in some sort of employment in
the vicinity of $300 per week. The resulting difference is $365 per week…”
It may be seen from the passage noted above that the Arbitrator has concluded that the Respondent’s physical capacity for work limits him to the performance of part-time light work with an earning capacity of $300 per week. Such conclusion was reached after a consideration not only of the Respondent’s residual physical capacity but also the general labour market reasonably accessible to him. It was not found, as stated in the Appellant’s Submissions, that the Respondent was only fit to work 20 hours per week.
In the course of his reasons the Arbitrator dealt with the Respondent’s own assessment of his residual work capacity. With respect to the Respondent’s evidence concerning ability to perform 38 hours per week of bar work the Arbitrator concluded that such self assessment was, on the part of the Respondent, “optimistic”. The Arbitrator proceeded to observe that there are aspects of such bar work including lifting of trays and re-stocking which “may well limit his capacity to earn”. It is my view that the Arbitrator’s conclusions with respect to both the expert medical and lay evidence were open to him and I respectfully agree with his conclusions. I specifically reject the Appellant’s suggestion made in the course of submissions that there was, either impliedly or expressly, agreement between the parties during conduct of the arbitration that the Respondent was fit for fulltime light duties. Particular emphasis was placed upon the report of Ms Beal during submissions put to the Arbitrator by the Respondent’s Solicitor at the hearing. It is plain that the Arbitrator gained considerable assistance from the contents of that report in determining the question of the Respondent’s ability to earn. That report, as appears at page 1 of same, addressed the issues as to the Respondent’s “current functional abilities and limitations” and sought to “identify any rehabilitation needs and/or treatment options that may assist to improve his physical capacity”. That very detailed report made clear that the Respondent had significant physical restrictions and described in its recommendations the nature of work that would be suitable to him. After a summary of that work it was stated in the report:
“Fulltime employment that is physically appropriate is suitable to pursue following a graded work training (approximately 6 weeks).”
The evidence before the Arbitrator was that the Respondent had not had the advantage of such a graded work training. The Arbitrator’s conclusion that the Respondent’s capacity was for “part-time … light work” was one open to him on the evidence and one with which I respectfully agree.
It is put on behalf of the Appellant (submission 11) that the Arbitrator failed to give adequate reasons for his decision that the Respondent was unfit for fulltime employment. It was stated by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 443 – “Reasons need not necessarily be lengthy or elaborate” but “relate to the function to be served by the giving of reasons”. When needing to refer to relevant evidence “there is no need to refer to [it] in detail, especially in circumstances where it is clear that the evidence has been considered”. (This line of reasoning was cited by Santow JA in Haris v Bulldogs Rugby League Club [2006] NSWCA 53 17 March 2006 unreported.)
The Arbitrator, before reaching his conclusion as to the Respondent’s ability to earn, embarked upon a detailed analysis and careful evaluation of the relevant evidence. It is my view that the Arbitrator in delivering his reasons as summarised above has addressed the totality of the evidence and has sufficiently revealed his process of reasoning as required by law.
It may be seen that I conclude that there has been no error demonstrated with respect to the Arbitrator’s process of reasoning nor as to his conclusions. Those submissions put on behalf of the Appellant (and the grounds which may be implied from the content of those submissions) should be rejected.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 5 March 2008 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
KEVIN O’GRADY
Acting Deputy President
23 July 2008
I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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