Design Metal Group Pty Ltd v Glen Wallis
[2006] NSWWCCPD 105
•31 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Design Metal Group Pty Ltd v Glen Wallis [2006] NSWWCCPD 105
APPELLANT: Design Metal Group Pty Ltd
RESPONDENT: Glen Wallis
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC7830-2003
DATE OF ARBITRATOR’S DECISION: 19 April 2005
DATE OF APPEAL DECISION: 31 May 2006
SUBJECT MATTER OF DECISION: Assessment of partial incapacity, calculation of section 40 award.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: QBE Workers Compensation (NSW) Ltd In-House Legal
Respondent: Maurice Blackburn
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 19 April 2005 is confirmed.
Design Metal Group Pty Ltd to pay Mr Wallis’ costs of the appeal.
BACKGROUND TO THE APPEAL
On 17 May 2005 Design Metal Group Pty Ltd (‘Design Metal’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 19 April 2005.
The Respondent to the Appeal is Glen Wallis (‘Mr Wallis’) who commenced employment with Design Metal as an apprentice roof plumber in February 1988. On 17 May 1988 Mr Wallis fell through a hole in the roof he was working on injuring both ankles. He was off work until January 1990 when he recommenced employment with a different employer. Mr Wallis then worked on and off until late 2003 when he stopped work due to the injuries to his ankles and was still off work at the time of the arbitration hearing.
Weekly compensation was paid to Mr Wallis from the date of the accident until he returned to work in January 1990. Proceedings were commenced in the then Compensation Court by Mr Wallis and on 19 September 1994 Terms of Settlement were agreed on between the parties whereby lump sum compensation was paid for 7.5 per cent loss of efficient use of the left leg below the knee and 12.5 per cent loss of efficient use of the right leg below the knee.
On 13 March 2003 Mr Wallis commenced proceedings in the Commission claiming weekly payments, medical expenses and further lump sum compensation. The matter was listed for arbitration on 17 March 2005 and 23 March 2005 and the decision of the Arbitrator is dated 19 April 2005. The claim for further lump sum compensation was referred for medical assessment which resulted in a Medical Assessment Certificate dated 17 May 2005. The matter was then listed for further arbitration on 29 June 2005 as a result of the Certificate. On this last mentioned date Consent Orders were agreed between the parties in respect of 4.5 per cent [additional] permanent loss of use of the left leg below the knee and 5.5 per cent [additional] permanent loss of use of the right leg below the knee. Whilst the parties agreed that Mr Wallis was entitled to an award of weekly compensation in respect of partial incapacity they could not agree on the weekly rate of compensation and the matter proceeded to arbitration hearing and a certificate of determination was issued.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 19 April 2005 records the Arbitrator’s orders as follows:
“1. Respondent to pay pursuant to s40:
$246.20 per week from 1 July 1993 to 30 September 1993,
$247 40 per week from 1 October 1993 to 31 March 1994,
$248 50 per week from 1 April 1994 to 30 September 1994,
$250.10 per week from 1 October 1994 to 31 March 1995,
$250.80 per week from 1 April 1995 to 30 September 1995,
$252.10 per week from 1 October 1995 to 31 March 1996,
$253.70 per week from 1 April 1996 to 30 June 1996,
$38.52 per week from 1 July 1996 to 30 June 1997,
$256.40 per week from 1 July 1997 to 30 September 1997,
$261.30 per week from 1 October 1997 to 31 March 1998,
$263.30 per week from 1 April 1998 to 30 September 1998,
$267.90 per week from 1 October 1998 to 31 March 1999,
$272.60 per week from 1 April 1999 to 30 September 1999,
$277.10 per week from 1 October 1998 to 31 March 2000,
$281.60 per week from 1 April 2000 to 30 June 2000,
$280.56 per week from 1 July 2000 to 30 June 2001,
$291.00 per week from 1 July 2001 to 30 September 2001,
$296.20 per week from 1 October 2001 to 31 March 2002,
$301.40 per week from 1 April 2002 to 30 September 2002,
$305.70 per week from 1 October 2002 to 31 March 2003,
$310.90 per week from 1 April 2003 to 30 September 2003,
$317.20 per week from 1 October 2003 to 31 March 2004,
$323.00 per week from 1 April 2004 to 30 September 2004,
$328.90 per week from 1 October 2004 to date and continuing as adjusted in accordance with s37.
2. Respondent to pay the Applicant’s s60 expenses.
3. Respondent to pay the Applicant’s costs as agreed or assessed.”
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.”
Mr. Wallis is agreeable to the matter being dealt with on the papers, whilst Design Metal does not agree to the appeal being dealt with on the papers. At the time of preparing submissions, Design Metal did not have a transcript of the arbitration and reserved the right to make further submissions in relation to the appeal generally and in relation to the appeal proceeding on the papers once a copy of the transcript had been received. A copy of the transcript was sent to both parties on 30 May 2005 and no further submissions have been received from Design Metal.
Design Metal further submit that as the initial arbitration was not heard on the papers and the amount awarded to Mr Wallis was a very substantial amount, that natural justice and procedural fairness dictates that there should be an oral hearing on review and that this will allow the parties to deal with the exchange of submissions in an appropriate manner.
I have before me all of the evidence and submissions that were before the Arbitrator, plus all additional submissions filed in the appeal. I also have a copy of the transcript of the arbitration hearing held on 17 March 2005 and 23 March 2005. 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 within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act and as the amount at issue in the appeal clearly meets the threshold test in section 352 (2) of the 1998 Act I grant leave to appeal.
FRESH EVIDENCE
Neither party asks that fresh evidence be considered.
ISSUE IN DISPUTE
The issue in dispute in the appeal is:
·the Arbitrator made errors in the calculation of the weekly wage rate pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
DISCUSSION AND FINDINGS
Before dealing with Design Metal’s appeal submissions, I note that Mr Wallis submits in the last paragraph of his Notice of Opposition to Appeal that the Arbitrator erred in not awarding compensation for the period 2 January 1990 to 30 June 1993 because if it were not for the injury in 1988 he would have concluded or nearly concluded his apprenticeship as a roof plumber by 2 January 1990.
Design Metal has not been put on notice and subsequently has not provided any submissions in response, of what is in effect, an Application by Mr Wallis to Appeal against the Decision of the Arbitrator. Mr Wallis’ Notice of Opposition to Appeal was received by the Commission on 8 June 2005. The Certificate of Determination is dated 19 April 2005 and accordingly Mr Wallis’ Application to Appeal is late in contravention of section 352(4) of the 1998 Act and I do not propose to grant an extension of time in the circumstances. In any event the matter was raised by Mr Wallis at the arbitration and the Arbitrator dealt with it in paragraph 26 of his decision:
“The Applicant has submitted that the Applicant had a loss during that period because he would have finished his apprenticeship one year earlier but for the injury. The wages of an apprentice increase with each year completed and it is correct that the Applicant’s wages did progress with each year of his apprenticeship. The absence of any evidence of the earnings of apprentice roof plumbers means that the Commission would have to move into the realm of speculation to determine a weekly entitlement. In my view even if a differential can be deduced from the evidence it is appropriate to reduce that difference to nil to reflect the possibility that the apprenticeship would not have been completed within the minimum three years. Such an approach means that there is no need to make a discretionary deduction to payments in respect of later periods.
In my view the Arbitrator was correct in reaching the conclusion that he did as there was no clear evidence as to when the apprenticeship as a roof plumber would have ended and there was no evidence at all as to the earnings of an apprentice roof plumber.
The Arbitrator erred in accepting the “handing up” of the document headed “Wages Schedule”.
Design Metal submits that the document headed “Wages Schedule” should not have been accepted by the Arbitrator, even though it was accepted as a summary of Mr Wallis’ submissions. Design Metal further submits that there was no evidence to support this document.
Mr Wallis responds that the Arbitrator specifically indicated that he did not rely on the document as evidence and in any event section 354(2) of the 1998 Act provides that the Commission may inform itself on any matter in such manner as it deems appropriate.
The Arbitrator in paragraph 12 of his Decision states:
“During the course of the hearing the Applicant handed up a document headed ‘wages schedule’. I was informed that the document was a summary of the Applicant’s position with regard to earnings but for injury and actual earnings for the period in dispute. The respondent objected to me receiving that document submitting that there was no evidence for the amounts asserted in the document. That objection was ill conceived as the document was not handed up as evidence but as a summary of the Applicants submissions. I have accepted the document on that basis and I have not relied upon that document as evidence of the matters set out in it. The Respondent did concede that the figures for actual earnings for the period 1 July 1991 to 30 June 2001 did represent the figures to be derived if the annual earnings as disclosed by the tax documents were divided by 52 to produce a weekly figure. The Respondent would not concede that those figures were the actual weekly earnings for those periods despite calling no evidence to the contrary and making no application to cross examine on that subject”.
The Arbitrator clearly stated in the transcript at pages 26 and 27 that the document headed “Wages Schedule” was accepted as a written submission and not evidence. As Mr Wallis submits, section 354(2) of the 1998 Act provides the Commission may inform itself on any matter in such manner as the Commission thinks appropriate. In my view the Arbitrator was entitled to accept the document as a written submission and accordingly this ground of appeal fails.
The Arbitrator erred in accepting that Mr Wallis would have finished his apprenticeship and worked as a roof plumber for all the years between 1993 and 2005.
Design Metal submits that although the parties agreed that Mr Wallis was partially incapacitated and his entitlement was to be determined pursuant to section 40 of the 1987 Act, the Arbitrator erred in finding that Mr Wallis would have completed his apprenticeship and thereafter earned the income of a qualified roof plumber. Design Metal submits that this finding was improbable and that some allowance should have been made to reflect this when reaching any finding of fact regarding Mr Wallis’ probable earnings.
Mr Wallis responds that in accordance with the statement he provided at the arbitration his apprenticeship of choice was that of a roof plumber. He further submits that his post injury employment where he completed an apprenticeship as a motor mechanic is proof of his motivation.
At paragraph 21 of the Decision, the Arbitrator found:
“Following the injury the Applicant did in fact complete an apprenticeship. I am also satisfied that the Applicant has demonstrated by his efforts to return to work that he is highly motivated and likely to have been successful in his chosen career if the injury had not intervened. I am satisfied that on the facts of this case it is appropriate to calculate the Applicant’s entitlements on the basis of the earnings of a qualified roof plumber from a date starting 3 years after the date of injury being the time that he would have completed his apprenticeship”.
Mr Wallis provided a written statement and gave oral evidence at the arbitration. In his statement dated 29 October 2004 Mr Wallis states that he “… decided to enter the work force after year 10 at school. I was interested in high rise plumbing, roof plumbing and roofing as it was one of the best paid trades in the building industry”. Mr Wallis goes on to state that after the accident he entered into an apprenticeship as a mechanic because it was “… the least physically demanding of all the jobs that had been offered by the rehabilitation specialists.” He goes on to explain that there was a very large physical requirement in the job and that “For the majority of the time working as an apprentice mechanic, I consumed between six and eight panadol tablets per day in an attempt to alleviate pain”. Mr Wallis then explained that during the second and third years of his apprenticeship as a mechanic he was so slow that management unsuccessfully attempted to terminate his apprenticeship. On completing his apprenticeship he was dismissed.
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. For Design Metal to succeed it must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz [2000] 203 CLR 172). Where a challenge as to the weight of the evidence is made, Deputy President Fleming stated in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
The Arbitrator took into account that Mr. Wallis, after suffering an injury to both ankles whilst working with Design Metal, then entered into an apprenticeship as a mechanic which he completed after four years when his employment was terminated because he was too slow.
Mr. Wallis then worked for different employers including as a security guard, a cleaner, work on an assembly line topping up paint machines, pizza delivery and as a trainee salesman. Mr. Wallis found difficulty with all of this employment and was forced to stop work due to the ongoing problem with his ankles.
In October 2003 Mr. Wallis did obtain employment with an internet service provider at Five Dock however there was a considerable amount of travel involved and as a result of the difficulties he had with this employment, he was asked to leave before the completion of the trial period. It is clear that there was sufficient material before the Arbitrator to make the finding that he did in relation to Mr. Wallis’ motivation and likelihood of his succeeding in his chosen career if not for the injury. This ground of appeal is not made out.
The Arbitrator erred in accepting that Mr Wallis had made “all efforts” to find evidence of roof plumbers wage rates.
Design Metal submits that the Arbitrator erred when he decided that “all efforts” had been to find roof plumbers wage rates. Design Metal also submit that the only efforts made were those set out in a letter dated 4 January 2005 and that Mr Wallis had the onus of establishing those wage rates.
Mr. Wallis submits in response to this ground of appeal that the following efforts were made to provide evidence of probable earnings:
· On 4 November 2004 Mr. Wallis’ solicitor wrote to the employer seeking wage documentation and at the same time a letter was forwarded to the insurer indicating that it was necessary for wage documentation to be provided so that a comprehensive wage schedule could be produced. As the employer was no longer in existence there was no response from either the employer or the insurer at this stage;
· Mr. Wallis undertook a search of the Mitchell Library and the internet (wagenet.gov) with only limited success. The resulting documents were used as evidence of probable earnings for 2002 and 2004. (Letter of 4 January 2005);
· Mr. Wallis also made enquiries with former workmates, however all attempts failed as the workmates declined to release their wage records. (Letter of 4 January 2005), and
· At the teleconference on 21 June 2005, Jeanette Nicholas, on behalf of the insurer indicated that she would undertake searches to provide evidence of the probable earnings of the worker. At this teleconference Mr. Wallis’ solicitor indicated the various efforts made in order to obtain comparable wage information.
Mr Wallis further responds that having regard to the difficulty he faced in obtaining wage documentation for the period 1 July 1993 to October 2002, the only appropriate method to estimate probable earning was for the Commission to exercise its knowledge and experience in this matter.
At paragraph 23 of the Decision the Arbitrator made this finding:
“In a letter dated 4 January 2005 the Applicant describes the efforts that he made to get evidence of wage rates. I accept that all efforts have been made to obtain direct evidence of those matters however those efforts have been unsuccessful”.
The letter dated 4 January 2005 was written by Mr Wallis to his solicitor and was part of the documentary evidence before the Arbitrator. The letter outlines the attempts made by Mr Wallis to obtain wage rates of roof plumbers. At both the teleconference on 23 February 2005 and the arbitration on 17 March 2005, a considerable amount of time was spent discussing the difficulties in obtaining information as to probable earnings for the period 1 July 1993 to October 2002. Again having read the transcript and the documentary material before the Arbitrator I am satisfied there was sufficient evidence to make this finding and accordingly this ground is not made out.
The Arbitrator erred in construing the High Court’s decision in J & H Timbers Pty Limited v Nelson (1972) 126 CLR 625 as authority for the proposition that the former Compensation Court was “able to determine the value of described work in the open labour market upon the basis of the general knowledge and the experience of the Court”.
Design Metal submits that the process by which the Arbitrator came to make findings of the probable earnings of roof plumbers is flawed. It is submitted that the Arbitrator erred in his application of J& H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 (‘J &H Timbers’) and that the case is not authority for the proposition that the then Compensation Court was “able to determine the value of described work in the open labour market on the basis of the general knowledge and experience of the Court”.
Mr Wallis submits that J &H Timbers did not disturb the well established rule that the Commission is entitled to make use of judicial knowledge as to such matters as rates of wages and availability of employment.
At paragraph 24 of the Decision the Arbitrator stated:
“It was accepted that judges of the Compensation Court were able to determine the value of described work in the labour market upon the basis of the general knowledge and experience of the Court (J & H Timbers Pty Limited v Nelson (1972) 126 CLR 625 ). The Commission is the successor to the Court and like the Court has exclusive jurisdiction to determine matters arising under the Act. In the circumstances I conclude that the Commission has the same knowledge and experience as the former Compensation Court. I am fortified in that view when I consider the provision of s354 (2) which provides that “the Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits”. I also note s354 (7) which provides that “an assessment or determination is to be made by the Commission having regard to the information as is conveniently available to the Commission”. It seems to me that subject to the rules of procedural fairness and Rule 70 of the Commission Rules the Commission has greater powers than the Court to rely upon its own knowledge and experience”.
Mr Wallis submits that the Judges of the Workers Compensation were qualified as a result of their experience and knowledge and refers to Akawa Australia Pty Ltd v Cassells (1995) 25 NSW CCR 385, where at page 392 Rolfe AJA stated:
“The Compensation Court is a specialised tribunal the juges of which are well qualified by their experience and knowledge of matters in the labour market and wages paid”.
Specialist knowledge of the Commission was discussed by Deputy President Fleming in Whittaker v Abacus Security and Surveillance Pty. Limited [2006] NSW WCCPD 86 (‘Whittaker’):
“In ICI Australia Operations Pty. Limited and 1 Ors v The WorkCover Authority of New South Wales [2004] NSW CA 55 (‘ICI’) the Court of Appeal (McColl JA, Mason P and Meagher JA concurring) referred to “a strong line of authority” that supported the claim that a Judge of the Dust Diseases Tribunal was “entitled to rely upon knowledge acquired as a member of a specialised tribunal” (at paragraph 219). Judges of the former ‘Workers Compensation Commission’ were also entitled to rely upon such knowledge in relation to, for example; conditions of employment and rates of pay (Bryer v Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321); general knowledge of silicosis in order to form an opinion on the facts as they related the disease to injury (Tame v Commonwealth Collieries Pty. Ltd. (1947) 47 SR (NSW) 269).
In ICI, the Court referred to ‘Cross On Evidence’ where the distinction between:
“…‘general expertise which enables the specialist tribunal to understand quickly the evidence before it and to draw appropriate inferences from the evidence, repeated and specialist knowledge which permits it to assert the existence of a particular fact.’ In the latter case according to Cross, ‘it is not proper for the tribunal to act upon such specialised knowledge without disclosing it to the parties and affording them the opportunity to rebut it or qualify by argument or by adducing evidence of the existence of that particular fact or by assigning a different significance to it’.”
As referred to by Deputy President Fleming in Whittaker, the circumstances in which an Arbitrator could claim to rely upon the ‘general knowledge of the Commission’ are extremely limited. Nonetheless Arbitrators of the Commission are able in those limited circumstances to rely upon the ‘general knowledge of the Commission’ and in this arbitration the issue of specialised knowledge was discussed at length between the parties at the arbitration and Design Metal was afforded the opportunity to assign ‘a different significance to it’.
In my view the Arbitrator’s application of that general knowledge in the circumstances of the arbitration was appropriate and accordingly this ground is not made out.
The Arbitrator erred in failing to follow the provisions of section 354 of the 1998 Act and Rule 70 of the Workers Compensation Commission Rules 2003 (‘the Rules’) and the Arbitrator also erred in calculating probable weekly earnings but for injury by extrapolating “backwards” from the October 2002 figures.
Design Metal submits that the Arbitrator failed to follow the provisions of section 354 of the 1998 Act and Rule 70 of the Rules. Specifically it is submitted that the Arbitrators error is seen in the following situations:
- When calculating the probable weekly earnings, using the figures for October 2002 and October 2004 and then going back year by year to 1994 in order to calculate the earnings for earlier years.
- When assessing the actual earnings, failing to take into account that Mr Wallis’ actual earnings were significant in the years 1990, 1991 and 1992 and again in 1995, 1996 and 1997 and there was no evidence to suggest that his ability to earn had decreased over the years by reason of the accident in 1988.
Mr Wallis submits that the Arbitrator did comply with section 354 of the 1998 Act and was fair in the circumstances and further that the section and the Rules must be read in conjunction with the objectives of the Commission, namely that matters should be disposed of in a fair and cost effective manner.
Extrapolating “backwards”
In paragraph 25 of the Decision the Arbitrator made this finding:
“The evidence shows that a roof plumber could earn in October 2002 the sum of $923.08 per week rising to $969.44 by October 2004. This represents a 5.02 percent increase over a 2 year period. There is no doubt that there were increases in earnings from time to time over the years that are the subject of this claim just as there can be no argument that roof plumbers had earnings during those years. During submissions the parties accepted that it was well known that there were significant increases in the earnings of persons engaged in the building trades in the period leading up to the Olympic Games in 2000. I was initially minded to calculate earnings but for injury in the earlier periods by accepting that the documented increase in the years 2002 to 2004 was representative of rate of increase in the previous years however upon reflection I think that allowance should be made to reflect the known greater rate of increase in 1999 and 2000. In my opinion the appropriate course is to allow for a 5 percent increase in comparable earnings for each financial year. The resulting figures are $876.85 for 2001, $833.00 for 2000, $791.00 for 1999, $751.00 for 1998, $714.00 for 1997, $678.48 for 1996, $644.00 for 1995 and $612.33 for 1994. For the earlier periods the Applicant was engaged as an apprentice mechanic and would have been working as an apprentice but for injury. There is no evidence of the earnings of apprentice roof plumbers though it was likely to have been similar to that of apprentice mechanics. It follows that during the period that the applicant was an apprentice there was no loss to compensate.”
In Whittaker, Deputy President Fleming stated:
“The Commission is a statutory tribunal, not a court (Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA 146). It has only those powers that are conferred by statute. Section 354(2) of the Workplace Injury Management and Workers Compensation Act 1998 provides that the Commission “is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits”. This does not mean that an Arbitrator may determine a dispute arbitrarily. Rule 70 of the Workers Compensation Commission Rules 2003 states 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 in this case has set out the method of his calculation and although he refers to a 5 per cent increase in comparable earnings for each financial year it is clear that in order to arrive at this he in fact applied a 5 per cent decrease each year. The usual method when looking at comparable earnings is to allow, when the circumstances warrant it, a small percentage increase over the year. In this situation the Arbitrator had satisfied himself that Mr. Wallis had made all efforts to find evidence of roof plumbers wage rates without success. In my view there was logically probative evidence to support the Arbitrator’s finding.
Ability to earn had decreased
Design Metal again submit the Arbitrator failed to follow the provisions of section 354 of the 1998 Act and Rule 70 of the Rules by failing to take into account some years of significant earnings when assessing actual earnings. In support of this submission it is suggested there was no evidence that Mr Wallis’ ability to earn had decreased over the years by reason of the accident in 1988. At paragraphs 27 to 29 of the Decision the Arbitrator set out his reasoning and findings:
“27. It is common ground in the medical material that the Applicant is unfit for the work of a roof plumber. In 1994 Dr Bornstein opined that the applicant was not fit for work at heights or on ladders but was fit to work on level ground. He thought that it would be to the Applicant’s advantage to be in an occupation where he was able to get off his feet periodically. In May 2003 Dr Panjratan was of the opinion that the Applicant should do a job which is not physically demanding and labour intensive and in which he does not have to stand for prolonged periods in one spot. Both doctors quoted were tendered in the Respondent’s case.
28. The Applicant has attempted a number of jobs since completing his apprenticeship but has not been able to cope with them or to perform to a standard acceptable to his employers. I am impressed with the efforts that the Applicant has made. The amount that a worker is able to earn in some suitable employment is prima facie the amount that he does earn when employed ( Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 ). There is no reason in this case to consider that the Applicant’s earning capacity should be found to be any greater amount than what was actually earned during periods of employment. There is documentary evidence in the form of tax assessments for the period up to 30 June 2001. I accept the Applicant’s oral evidence in respect of the period thereafter.”
29. The Applicant has not worked since 14 November 2003. Bearing in mind what is said in the statements of the Applicant and his wife I accept Dr Wallace’s view expressed in September 2004 that the Applicant is not fit for activities requiring bending, squatting, crouching or kneeling at his bilateral lower limbs, sitting or standing in one position for prolonged periods, repetitive lifting above 5 kilos, working in confined spaces, at heights or on ladders, prolonged driving of a motor vehicle or operation of machinery for prolonged periods or walking or stair climbing. The Applicant left school at year 10 which means he has limited capacity to do clerical work. In practical terms the Applicant is bordering on total incapacity however he has conceded before me some residual capacity. That capacity is limited to a very small range of sedentary work that involves limited clerical skills. In my view his residual capacity is no more than $100 per week.”
On reading the transcript and evidence before the Arbitrator I am of the opinion that there was sufficient material for the Arbitrator to make the findings that he did and in my view he did not breach either section 354 of the 1998 Act or rule 70 of the Rules. Both these grounds of appeal fail.
The Arbitrator erred in finding that Mr Wallis’ ability to earn was $100.00 per week.
Design Metal submits that the Arbitrator’s finding that Mr Wallis’ residual capacity is no more than $100 per week is against the evidence and the weight of the evidence. It is further submitted that Mr Wallis would be able to work in the capacity of a manager and as a salesman and that his ability to earn is of the order of $800 per week. Mr Wallis submits that the Arbitrator did take into account all of the evidence and came to a proper decision.
As Deputy President Byron stated in John Robinson t/as Robinson’s Pharmacy v King [2005] NSW WCC PD 39, (‘Robinson’):
“The weight and relevance of the evidence is a matter in the discretion of the Arbitrator, upon due consideration of that evidence. In circumstances where it can be demonstrated that the Arbitrator has failed to exercise his discretion fairly and lawfully, the decision may be overturned. The circumstances in which this occurs are where the Arbitrator has acted upon a wrong principle, allowed irrelevant considerations to influence his decision, made a material mistake as to facts or has failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520 and Re National Roads and Motorists Association Ltd [2003] FCAFC 206).”
In assessing Mr. Wallis’ ability to earn the Arbitrator took into account the statements of both Mr. Wallis and his wife in regard to the various unsuccessful attempts at employment in the period 1990 through to 2003. The Arbitrator also had before him medical evidence from Dr. Bornstein and Dr. Panjratan that was tendered by Design Metal. This medical evidence was referred to by the Arbitrator in paragraph 27 of the Decision, which I have quoted above in paragraph 46. Dr. Bornstein was of the view that Mr. Wallis was not fit to work at heights or on ladders but only on level ground and that he would need to be in an occupation where he was able to get off his feet periodically. Dr. Panjratan was of the view that Mr. Wallis should do a job which was not physically demanding and labour intensive and where he did not have to stand on one spot for prolonged periods.
The Arbitrator also had a report from Dr. Wallace tendered by Mr. Wallis. Dr. Wallace’s view is quoted by the Arbitrator in paragraph 29 of the Decision, which I have quoted above in paragraph 46 above. The Arbitrator taking these matters into account was of the view that Mr. Wallis was bordering on total incapacity. It was for the Arbitrator to consider and weigh the evidence at the arbitration. Having read the transcript, the various statements and the medical evidence I am of the opinion that this finding was open to the Arbitrator. Accordingly this ground of appeal is not made out.
The Arbitrator erred in making automatic adjustments of an award pursuant to section 40 of the 1998 Act.
Design Metal submits that as the Award is pursuant to section 40 of the 1987 Act the Arbitrator does not have the power to order automatic adjustments. Mr Wallis responds that the Arbitrator does have the power pursuant to subsections (5) and (6) of section 40 of the 1987 Act. Section 40 (5) and (6) provide:
“(5)Maximum rate of compensation
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.(6)Adjustment of compensation—indexation
If it appears proper in the circumstances of the case, the weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work may (subject to subsection (5)) be adjusted to take account of any adjustment because of the operation of Division 6 in the weekly payment that would be payable to the worker if it were a period of total incapacity for work.”
Subsection (6) of section 40 of the 1987 Act provides that if it appears proper in the circumstances of the case, there is power to order indexation of the weekly amount. It is unusual in awards pursuant to section 40 of the 1987 Act to order indexation, with the end result being that the worker returns to the Commission from time to time in order to have the weekly amount increased when appropriate. The Arbitrator, although he did not provide any reasons ordered that the weekly payment was to be adjusted in accordance with indexation.
In paragraph 25 of the Decision the Arbitrator found the comparables to be $969.44 per week. The Arbitrator then went on to find that Mr. Wallis’ ability to earn was $100 per week. As the difference is some $869.44 per week, then the maximum statutory benefit applicable to Mr. Wallis was at 1 October 2004, $328.90 per week. I am satisfied that this is a case where it is proper in the circumstances to order adjustment of compensation in accordance with Section 40(6) of the 1987 Act.
In paragraph 19 of the Decision the Arbitrator outlined the three essential steps in order to determine Mr. Wallis’ entitlements pursuant to Section 40 of the 1987 Act. The Arbitrator set these out as:
“1.To determine what the Applicant would have earned if he remained in the same or some comparable employment as he was in when injured.
2.…to determine what the Applicant has earned or was capable of earning in some suitable employment.
3.…to determine if the difference between the first two figures should be reduced because it is proper in the circumstances of the case to do so”.
These three steps accord with the principles as set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527. As referred to above, the Arbitrator determined step 1 and step 2 and when determining step 3 found “…that there is no basis for awarding an amount less than the simple difference between probable earnings and ability to earn”. In coming to that decision the Arbitrator took into account that Mr. Wallis had not suffered any other injury or illness that would have prevented him working as a roof plumber and that there was no evidence to suggest that roof plumbing is not still a trade with plentiful employment or at least employment prospects similar to what they were in 1988.
Having read the transcript, the medical evidence and the other documentary material before the Arbitrator, I am of the view that it was open to the Arbitrator to make the findings and award that he did and as such the appeal fails.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
Design Metal Group Pty Ltd to pay Mr Wallis’ costs of the appeal.
Julian Martin
Acting Deputy President
31 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
1
0