DHL Exel Supply Chain (Australia) Pty Ltd v Hyde - [2011] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22
APPELLANT:			DHL Exel Supply Chain (Australia) Pty Ltd
RESPONDENT:			Troy Hyde
INSURER:			Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:			A1-7084/10
SENIOR ARBITRATOR:		Mr M Snell
DATE OF ARBITRATOR’S DECISION:			30 November 2010
DATE OF APPEAL DECISION:			4 April 2011
SUBJECT MATTER OF DECISION:			Partial incapacity; ability to earn in some suitable employment; s 40 of the Workers Compensation Act 1987; exercise of the discretion where overtime opportunities declined by worker
PRESIDENTIAL MEMBER:			President Judge Keating
HEARING:			On the papers
REPRESENTATION:			Appellant:	TurksLegal
Respondent:	Slater & Gordon Ltd
ORDERS MADE ON APPEAL:			The Arbitrator’s determination of 30 November 2010 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

Mr Hyde was employed by the appellant employer, DHL Exel Supply Chain (Australia) Pty Ltd (DHL), as a high-reach forklift operator.
Mr Hyde commenced employment in August 2005 at the respondent’s premises located at the Holbech Road distribution centre and warehouse.
The high-reach forklift was operated in a standing position and involved the operation of a dead man’s pedal operated with the left foot.
Mr Hyde alleges that, over time, he suffered injuries to his left foot as a result of operating the forklift.
Mr Hyde was unfit to work from 13 March 2009 until 17 March 2009. He was then certified fit to return to work provided he avoided operating the high-reach forklift.
In the absence of suitable duties at the Holbech Road premises, Mr Hyde was transferred, contrary to his wishes, to a call centre at Lidco Street, Arndell Park, where he was provided with a sedentary position.
Notwithstanding repeated unsuccessful attempts to return to work at the Holbech Road premises, Mr Hyde was transferred to DHL’s freight centre at Huntingwood effective on 25 May 2009. His work there involved loading and unloading trucks using a forklift operated from a seated position.
Mr Hyde claims that, at his current location, he is denied the opportunity of working the amount of overtime that was available to him at the Holbech Road site.
On 28 June 2010, Mr Hyde’s solicitors made a demand on Allianz Australia Workers Compensation (NSW) Ltd (Allianz) for weekly compensation pursuant to s 40 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $135.79 per week from 25 May 2009 to date and continuing.
On 28 July 2009, Allianz declined the claim. It issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The claim was declined for the following reasons:
“•You do not suffer any ongoing incapacity for work, total or partial, due to any workplace injury – section 33 Workers Compensation Act 1987 (WCA)
•Your ability to earn is equal to or greater than your pre-injury ability – section 40 Workers Compensation Act 1987 (WCA)
•You did not require any medical-related treatment for any workplace injury – sections 59 and 60 WCA.”
On 31 August 2010, Mr Hyde filed an Application to Resolve a Dispute in the Commission, in which he sought an order for weekly compensation pursuant to s 40 of the 1987 Act in the sum of $135.79 per week from 25 May 2009 to date and continuing.
In a Reply filed pursuant to an Application to Admit Late Documents on 23 September 2010, DHL disputed the claim for the reasons identified in the s 74 notice and for three additional reasons:
(a)     Mr Hyde was not incapacitated as a result of a workplace injury;
(b)     His inability to operate the stand-up forklift was due to a constitutional condition, not being the result of any workplace injury;
(c)     Mr Hyde is employed as a storeman pursuant to an enterprise bargaining agreement. Mr Hyde’s transfer is within the terms of the agreement, where he continues to perform his duties as a storeman. Any alleged wage loss is incidental to the transfer and is not compensable.
The Commission listed the matter for conciliation and arbitration on 30 November 2010. Neither side sought leave to call any oral evidence and the matter proceeded with submissions.
The Senior Arbitrator delivered an oral decision on 30 November 2010. He noted that injury was not an issue in the proceedings. He found that the worker suffered left-sided plantar fasciitis, with the possibility of tendonitis, which condition had been aggravated by Mr Hyde’s employment. The Arbitrator accepted that the aggravation was a continuing one. The parties agreed that Mr Hyde’s probable earnings but for the injury were $1,092.50 per week. It was also agreed that Mr Hyde’s actual earnings were $952.26 per week.
The parties were in dispute as to whether Mr Hyde’s actual earnings reflected his ability to earn, and whether he had unreasonably refused offers of overtime in his current role. Ultimately, the Arbitrator was satisfied that, in the circumstances of this case, there was no reason for him to depart from the principles enunciated in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (Aitkin). The Arbitrator found that Mr Hyde’s current earnings accurately reflected his ability to earn in suitable employment. The Arbitrator entered an award in favour of Mr Hyde pursuant to s 40 of the 1987 Act in the sum of $135.79 per week from 25 May 2009 to date and continuing.
The Commission issued a Certificate of Determination dated 30 November 2010 in the following terms:
“1. The respondent is to make weekly payments of compensation to the applicant pursuant to section 40 Workers Compensation Act 1987 at the rate of $135.79 per week from 25 May 2009 to date and continuing.
2. The respondent is to pay the applicant’s expenses pursuant to section 60 of the 1987 Act.
3. The respondent is to pay the applicant’s costs as agreed or assessed. I certify an uplift in the costs of both parties of ten percent on account of complexity.”
In an appeal lodged on 7 January 2010, DHL seeks leave to challenge the Arbitrator’s findings on incapacity and his assessment of the worker’s entitlements under s 40.

LEAVE

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

Monetary threshold

It is not disputed that the monetary thresholds in s 352(2) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.

EVIDENCE

Troy Hyde

Mr Hyde is 42 years of age. At the time of having sustained the injuries complained of, he had been employed by DHL for four years. He worked in the same section, namely, the SC Johnson section, preparing orders for distribution onto pallets.
He operated a high-reach forklift with a dead man’s pedal operated by the left foot. The high-reach forklift is a stand-up forklift. He was required to place his left foot on the dead man’s pedal and press the pedal to the floor to allow the forklift to move.
The dead man’s pedal in the high-reach forklift, when fully depressed, would still rise a slight distance above the floor of the forklift.
Over time, Mr Hyde developed an ache in the bottom of his left foot which, by 12 March 2009, had developed into sharp pain in the base of the foot. Mr Hyde consulted his general practitioner, Dr Soo of Blackett, who diagnosed right calcaneal fasciitis and left ankle tenosynovitis. He was certified unfit from 13 to 17 March 2009.
When Mr Hyde returned to work, he was directed to work, contrary to his wishes, at the call centre at Lidco Street, Arndell Park. He was given a sedentary position, answering telephones and entering data.
On 1 April 2009, Dr Soo referred Mr Hyde to an orthopaedic specialist, Dr Kwa. Before he saw Dr Kwa, Allianz referred him to another orthopaedic surgeon, Dr Stephenson.
On 18 May 2009, Mr Hyde attended a meeting at the Holbech Road premises with Brett Carrigan (warehouse manager), Martin Johnson (national OH and S manager) and Anne Jeanes (injury management adviser). Although Mr Hyde stated that he identified several roles that he could perform in his former section, the company refused to transfer him.
On 25 May 2009, Mr Hyde was transferred to the “freight hub” at Huntingwood. He was required to load and unload trucks using a forklift, which he operated from a seated position. Mr Hyde states that his wish to return to Holbech Road was influenced in part because of the overtime work available there. At Huntingwood, there is little or no overtime available. In his statement of evidence, Mr Hyde identified various pieces of machinery that he could operate at the Holbech Road site which did not involve the use of a dead man’s pedal or operating equipment in a standing position. Mr Hyde states that, although the dead man’s pedal on the high-reach forklift has been modified since his injury, he had not been given an opportunity to try using it since his return to work.
Mr Hyde stated that a colleague, Peter Zaphrain, had also been injured while operating the high-reach forklift in 2008. Mr Zaphrain had been accommodated by the employer by providing him with sedentary work at the Holbech Road site.
Mr Hyde states that, given the company’s policy of job rotation, even if he was returned to the Holbech Road site operating a high-reach forklift, he would not be required to operate it eight hours a day, five days a week, but would only operate it for part of the shift over the week.
In a supplementary statement of evidence dated 16 February 2010, Mr Hyde stated that he has not returned to his pre-injury duties as, in particular, he is prohibited from operating any stand-up forklift.
He stated that, since 25 May 2009, he had been offered very little overtime, probably only 16 hours. He stated that he was losing on average $300–$400 per week as a consequence of not being able to work the overtime that was available to him at the Holbech Road site.
He stated that the only comparable employee still employed in the Holbech Road site is Brad Worley. However, he noted that Mr Worley is a team leader and earns a higher hourly rate than Mr Hyde did. He stated, however, that their working hours were the same, and their pattern of working overtime, including working overtime most days, was the same.
Mr Hyde stated that he returns to the Holbech Road site every Friday to collect his pay and his co-workers have informed him that there is overtime available there, as it had always been. He stated that, in the last three years, he had earned up to $55,000 gross per annum. However, his earnings had reduced to $46,000 per annum by reason of the change in his circumstances. He stated that the same or comparable employment paid approximately $1,200 per week and his current earnings were $850 per week.
Mr Hyde signed a third statement dated 26 October 2010. He stated that he continued to be employed at the Huntingwood site, working the day shift between May 2009 and mid-2010. His hours were from 5.00 am, finishing between 12.00 noon and 1.00 pm. He stated that the overtime allocation was determined by the shift supervisor, Colin Beveridge. He stated that the usual procedure for working overtime is that you are approached by your shift supervisor, who would inform you if overtime was available.
While he worked at the Holbech Road site, Mr Hyde’s supervisor normally approached him two hours before the shift ended, at around 10.30 am, to advise if overtime work was available. He would then decide whether to accept the work or not. In other words, he stated, in his experience, it was a matter of him being offered the overtime within a reasonable time before the end of the shift by the shift supervisor.
At the Huntingwood premises, Mr Hyde’s experience was that he was normally approached by Colin Beveridge when overtime was available. He stated that, to the best of his recollection, on all but two occasions that he had been asked to work overtime, he agreed to do so. He added that he had not received many offers of overtime in the past 18 months.
Mr Hyde stated that Mr Beveridge’s practice had been to approach him within the last half-an-hour before the end of the shift. On those occasions that he refused the overtime, they were because he had already made other commitments after work.
There were no stand-up forklift machines operating at Huntingwood, and thus there was no impediment to him working overtime if it was offered to him.
Saturday overtime at Huntingwood is determined by roster. Mr Hyde’s evidence is that, to the best of his recollection, he worked all of the rostered Saturday overtime shifts that had been allocated to him. He was rostered a Saturday once in every eight weeks. The Saturday overtime is generally a four-hour shift and only very rarely more.
Whilst at the Huntingwood site, Mr Hyde stated that he worked one additional Saturday overtime shift when another worker was unavailable to take their rostered overtime. He said, “I have never turned back a Saturday overtime which has been offered to me”.
Mr Hyde said that at the Holbech Road site, Brad Worley and he were high-reach forklift operators. Most of the overtime at Holbech Road involved operating the high-lift forklifts. In addition, from time to time, he was asked to perform overtime work at other sites, such as Walters Road, Arndell Park and Bessemer Street, Blacktown, Smithfield and Huntingwood sites. The supervisors of those sites would contact his supervisor, Simon Parr, and request Mr Hyde, or would notify “us”, which I infer is a reference to Mr Hyde and his colleagues, that there was overtime work available at those other sites. He is aware that Brad Worley is still working that overtime.
Mr Hyde stated that, to the best of his recollection, he has never been personally approached by Alphonse Masella, the NSW transport operations manager for DHL, “to inquire as to whether I was interested in working overtime”.
Mr Hyde stated that he had only very seldom been approached by Colin Beveridge, his supervisor at Huntingwood, and offered overtime during the week.
In or about June or July 2010, the shift system changed at Huntingwood and a night shift was introduced which commenced at 9.00 pm and concluded at 5.00 am. The night shift workers are now offered overtime, which ordinarily would have been offered to day shift workers at the end of their shifts, and they do the overtime into the beginning of the day shift. This, Mr Hyde said, happens occasionally. He added that the shift supervisor, Mr Beveridge, who commences work at approximately 3.30 am, determines whether or not there is a need for the night shift workers to work an hour or two of overtime into the beginning of the day shift. As a consequence of the introduction of the night shift, there are between five and six trucks fewer that he is required to load on the day shift, which consequently means there is less overtime for day shiftworkers. A night shift has not been introduced at the Holbech Road site.
Brad Worley continues to operate a high-reach forklift at the Holbech Road site and performs a significant amount of overtime work. Mr Worley is a team leader and is paid at a higher rate than Mr Hyde, but is likely to be earning a similar income because they did very similar work and worked side by side.
Mr Hyde stated that he had been shown the wage records of William Thompson, a day shift worker at Huntingwood. Mr Thompson worked a significant amount of overtime every week until the introduction of the night shift. He has a prosthetic leg and is therefore always allocated work on a forklift. There are 14 forklifts on the shift. At any one time during overtime, there may be five or six of them being recharged or inoperable, and the balance of the forklifts are used by the afternoon shiftworkers. Mr Thompson behaves differently to most other workers at DHL, in that he stays back for overtime virtually every afternoon. In the last few months, he has only been getting half-an-hour to one hour’s overtime by staying back, which Mr Hyde attributed to the introduction of the night shift.

Anne Jeanes

Ms Jeanes is employed by DHL as an injury management adviser. She provided a statement of evidence dated 9 October 2009. She devised the return to work plan for Mr Hyde, stating that there were no suitable sedentary duties available at the Holbech Road site. She recommended Mr Hyde return to work at the call centre, where he was able to remain seated for the majority of his shift.
Ms Jeanes stated that she was approached by Mr Hyde on one occasion, seeking a transfer back to the Holbech Road site. She rejected the approach, stating that, having regard to his medical condition, the company would not permit him to operate a high-reach forklift.
Ms Jeanes added that there is overtime work available for Mr Hyde at the Huntingwood site. However, the overtime is available in the evenings, whereas the overtime at Holbech Road was offered in the afternoons. She stated that Mr Hyde informed her that he did not want to undertake late overtime work as he wanted to be with his children. She said that, at present, DHL has had a 20 per cent reduction in overtime across the board. Overtime work is not guaranteed by DHL. Ms Jeanes states that there are some sit-down roles at the Holbech Road site, but they are seasonal.
She said that the company was attempting to identify a permanent full-time role for Mr Hyde. She was aware of Mr Zaphrain’s claim, stating that he was on permanently modified duties at Holbech Road, but adding, “There are only so many permanent sit-down roles at Holbech Road”. At [26] of her statement, Ms Jeanes stated that DHL perceived a risk in putting Mr Hyde back on high-reach forklifts for any length of time, as his condition was considered by his treating practitioners to be chronic. She added that his pre-injury duties were those of a storeperson, not specifically operating a high-reach forklift. He has therefore, in the company’s view, been returned to his pre-injury duties as a storeperson.

Brett Carrigan

Mr Carrigan provided a statement dated 9 October 2009. Until shortly prior to making his statement, he was employed by DHL as the warehouse manager of the Holbech Road site.
Mr Carrigan stated that most of the work in the SC Johnson section, where Mr Hyde was employed, involves operating stand-up forklifts. He stated at [13] of his statement that there is currently only one sit-down forklift within the SC Johnson section.
He stated that the modified duties made available to Mr Zaphrain and another employee, John Cruz, had been assigned before Mr Hyde’s need for modified duties, as a result of which there were no sit-down operated forklifts available to him to operate at the Holbech Road site.
With regard to Mr Hyde’s allegations concerning overtime, Mr Carrigan stated:
“With regard to Troy’s lack of overtime comments, overtime is seasonal and not guaranteed … His allegation that there is 16–20 hours of regular overtime at Holbech Road is incorrect and these amounts of overtime hours are seasonal.”

Radha Mandri

Pursuant to the Application to Admit Late Documents dated 29 November 2010, a brief statement of Radha Mandri dated 23 November 2010 was admitted in evidence. Mr Mandri failed to identify his worksite, but stated:
“There is no overtime on a daily basis due to night shift pre-loading up to eight trucks per night which takes our workload of day shift.”
I infer from his evidence that he was referring to the lack of availability of overtime at the Holbech Road site due to the introduction of a night shift.

Alphonse Masella

Mr Alphonse Masella swore a statutory declaration dated 12 October 2010. He stated that he was employed by DHL as the NSW transport operations manager based at Huntingwood.
Mr Masella stated that Mr Hyde has not actively sought overtime with his supervisor, Mr Colin Beveridge. He said that, depending on truck movements and possible absenteeism from the afternoon shift, overtime work may become available.
Mr Masella stated:
“I have personally on a few occasions approached Troy to see if he was interested in working back when we were extremely busy and he did not take my offer. Colin Beveridge (morning supervisor) has also offered overtime to his team and Troy has only taken work offered on the weekends, ie, Saturday, and time offered during the week is turned down. The number of occasions this has occurred is frequent.”

Colin Beveridge

Colin Beveridge swore a statutory declaration dated 25 October 2010. Mr Beveridge is the morning supervisor of the New South Wales freight hub at Huntingwood. Mr Hyde is a member of the morning shift at that location.
Mr Beveridge said that he had asked Mr Hyde to work overtime on several occasions, only to be told on each occasion that he was unable to work that day. Mr Beveridge added that Mr Hyde has only accepted overtime offered if it means that he can start one hour before his shift or on a Saturday. Saturday work is limited and offered on a roster system. There are 30 people on the roster and it would mean that they would only have an opportunity (at best) twice a year.
Mr Beveridge stated that there is overtime available in the afternoon most days unloading trucks as they come in with freight for interstate. He said that they have only had a full complement of workers on the afternoon shift three times this year, stating, “am staff take up the slack. Troy has never availed himself of this extra work”. Overtime is also available in the labelling cartons section, working with Kelly Hillsley for Lenovo. There is no forklift driving involved, just labelling of cartons. This, according to Mr Beveridge, happens at least three afternoons a week, and Mr Hyde has shown no interest in taking up that overtime.
Mr Beveridge also stated that overtime in the afternoons is available on occasions “slip sheeting pallets and transferring cartons onto pallets”. He said that Mr Hyde likes to leave the site right on his scheduled finishing time at 1.06 pm.

Medical evidence

Mr Hyde was initially treated by his general practitioner, Dr Soo. There is no report from Dr Soo in evidence. However, he issued a series of WorkCover medical certificates between 30 March 2009 and 29 May 2009. Those certificates indicate a diagnosis of calcaneal fasciitis and left ankle strain.
Dr Soo referred Mr Hyde to an orthopaedic surgeon, Dr Anthony Kwa. In a report dated 29 April 2009, Dr Kwa stated that Mr Hyde was beginning to have problems in his left foot from tibialis posterior tendonitis. He recommended physiotherapy, orthotics and non-steroidal anti-inflammatory medication. He also recommended that Mr Hyde should change jobs to one that did not involve standing all day. In a subsequent report dated 1 July 2009, Dr Kwa stated that Mr Hyde had ongoing left foot plantar fasciitis and a degree of tibialis posterior tendonitis, which he assessed as an ongoing “chronic problem”.
An ultrasound of the left ankle performed by Dr Ketheswaran on 20 March 2009 indicated right plantar fasciitis.
Mr Hyde was seen by Dr Brian Stephenson, orthopaedic surgeon, to whom he was referred by Allianz. Dr Stephenson conducted a clinical examination and reviewed the radiology, including an ultrasound of the left ankle, x-rays of the left ankle and left foot, and an ultrasound of the right heel. He concluded that Mr Hyde suffered from plantar fasciitis of the left heel. He noted thickening of the plantar fascia of the right heel, consistent with chronic plantar fasciitis which had been present for 12 years.
He stated that, in regard to the left foot, there may have been some tibialis posterior tendonitis with postural factors, standing and using the controls of the forklift that were described to him. Dr Stephenson stated that the condition can be constitutional and can persist symptomatically if there is prolonged standing with insufficient footwear. He considered that Mr Hyde’s condition of plantar fasciitis, although constitutional, had been aggravated by the continual use of the dead man’s pedal on the stand-up forklift. He also considered there may have been some posterior tibial tendonitis “as part of the symptom complex left foot and ankle which may be resolving”.
In answer to direct questioning, he opined that the workplace injury aggravated Mr Hyde’s underlying condition and he accepted that there were some persisting symptoms. He considered Mr Hyde fit for suitable duties, including forklift work, provided he is able to sit rather than stand all day.
In a further report dated 10 July 2009, Dr Stephenson was asked to answer two specific questions: first, he was asked to review the information from Dr Soo and Dr Kwa, and provide an opinion as to whether Mr Hyde was capable of returning to sustained pre-injury duties working on a stand-up forklift eight hours a day, five days a week, to which he responded:
“No. I do not believe Mr Hyde has that capability.”
Secondly, Dr Stephenson was asked to express an opinion concerning whether Mr Hyde would be at risk of recurrence of his injury if he performed those duties, to which the doctor replied:
“Yes, that is likely.”
Thirdly, Dr Stephenson was asked whether redeploying Mr Hyde into a position that limits the amount of time spent on a stand-up forklift would be more sustainable than his pre-injury duties on a stand-up forklift, to which he responded:
“Yes, I accept that [sic] appropriate redeployment.”
The Arbitrator noted that injury was not an issue. After reviewing the medical evidence, he found that there was substantial agreement between Dr Kwa and Dr Stephenson as to the diagnosis of left-sided plantar fasciitis, together with the possibility of some tendonitis. He found that the worker’s employment had aggravated the condition, and the aggravation was continuing. I agree with those findings and I note that those findings have not been challenged on appeal.

Earnings of comparable employees

Mr Hyde sought to corroborate his evidence regarding the lack of overtime opportunities at the Huntingwood site by reference to the earnings pattern of Mr William Thompson. Mr Thompson’s earnings records were produced in evidence. I have examined those records carefully and it does seem to me that they support Mr Hyde’s evidence that, in the months leading up to the arbitration hearing, the amount of overtime being worked by Mr Thompson was extremely modest.
Mr Hyde stated at [35] that the earnings of Mr Brad Worley would be comparable to his in the sense that, although Mr Worley was a team leader and paid at a higher rate, he worked similar overtime hours to Mr Hyde whilst they both worked at the Holbech Road site. Mr Worley’s earnings records were admitted in evidence. They indicate that he continues to derive substantial income from overtime worked at the Holbech Road site. Mr Hyde submitted that, even after discounting Mr Worley’s income by 65 per cent to reflect the difference in his earnings by reason of the fact he was paid at the rate of a team leader, compared to Mr Hyde’s earnings, Mr Worley was earning about $250 per week more than Mr Hyde from overtime worked (T10.55). There was no demur from that submission.

THE ARBITRATOR’S FINDINGS

After reaching his conclusions as to the nature of injury referred to at [15], the Senior Arbitrator concluded that, in the absence of any evidence to suggest that the effects of the aggravation had subsequently ceased, and applying the principles enunciated in Purkess v Crittenden [1965] HCA 34; 114 CLR 164; [1966] ALR 98; 39 ALJR 123 (Purkess), the effects of the aggravation continued.
The Senior Arbitrator went on to consider the extent of any incapacity arising from the worker’s injury and whether any such demonstrated economic incapacity resulted from the physical incapacity found.
The Senior Arbitrator was assisted by an agreement between the parties that Mr Hyde’s probable earnings but for the injury amounted to $1,092.50. It was also agreed that the worker’s actual earnings post-injury amounted to $956.26, leaving a difference of $135.79 per week. Citing Aitkin, the Senior Arbitrator accepted the worker’s actual earnings as reflecting the lower limb of the s 40 equation in the absence of any finding that Mr Hyde had been malingering, shirking or artificially reducing his actual earnings. DHL argued before the Arbitrator that Mr Hyde had declined to work overtime that was made available to him post-accident. The Senior Arbitrator weighed the conflicting evidence between the worker and Messrs Beveridge and Masella regarding the amount of overtime that was offered to him. He concluded that much of Mr Masella’s evidence was hearsay and that Mr Beveridge had only offered the worker overtime “on several occasions”. Mr Beveridge conceded that Mr Hyde accepted overtime if it meant that he could start his shift early or work on a Saturday. Although Mr Beveridge referred in general terms to other overtime opportunities, he was not specific as to how often the overtime was offered to Mr Hyde, or the frequency with which he did it, as opposed to the frequency with which he refused it.
Mr Hyde’s evidence, on the other hand, was to the effect that he had only refused overtime offered to him on two occasions, when the offer was made too late in the shift for him to re-arrange his after work commitments. The Senior Arbitrator concluded that, given the relative lack of precision in Mr Beveridge’s evidence when compared to Mr Hyde’s evidence, there was no reason to conclude that Mr Hyde was failing to exercise his residual capacity by minimising his earnings as discussed in Aitkin.
Taking into account Mr Hyde’s cooperation in the return to work plan developed by his employer, returning to work soon after his injury, and his willingness to work overtime, the Senior Arbitrator concluded that he should accept as the appropriate measure of the lower limb of the s 40 equation the worker’s actual earnings as agreed.
Applying the steps set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 526, the Arbitrator found that the worker’s probable earnings amounted to $1,092.50, and his actual earnings amounted to $956.26, the difference being $135.79. The Arbitrator considered, but declined to exercise, the discretion available in s 40(1) to reduce that figure.

GROUNDS OF APPEAL

The appellant submitted the following grounds of appeal:
(a)     The Arbitrator erred in finding that the worker continued to suffer an incapacity for work due to the workplace injury on 12 March 2009.
(b)     The Arbitrator erred in finding that the worker’s actions had not diminished his capacity to earn and then applying the principle in Aitkin to find that Mr Hyde’s actual earnings were a proper reflection of his capacity to earn.
(c) The Arbitrator erred in finding that s 40(2A) of the 1987 Act did not apply to Mr Hyde’s failure to accept offers of overtime.
(d) The Arbitrator erred in failing to exercise his discretion to reduce the worker’s s 40 entitlements so that the entitlement was “proper in the circumstances of the case”. He further erred in failing to accept that the worker was performing his job as a storeman and that any loss of overtime entitlements was not the subject of an incapacity, but was due to his pursuit of overtime and the general availability of overtime. The loss of overtime was not related to any incapacity which the worker alleged.
(e)     The Arbitrator failed to consider the prejudice that was suffered by the appellant by the late admission of Mr Hyde’s statement which was served on the appellant on 29 November 2010.
(f)      The Arbitrator erred in making a general order for s 60 expenses.

Was the worker’s incapacity due to the injury on 12 March 2009 continuing?

The appellant submits that Mr Hyde was certified fit for pre-injury duties by Dr Soo on 30 May 2009. Dr Soo was the last medical practitioner to examine the worker and he considered him fit for his pre-injury employment.
It is submitted by the appellant that, if there is any continuing incapacity, it does not prevent Mr Hyde from performing his pre-injury duties, and therefore he should not be considered incapacitated for the purposes of the “saleability of the applicant’s labour”: Ball v William Hunt & Sons Pty Ltd [1912] AC 496. It is submitted that Mr Hyde is capable of working the overtime which had been offered to him at his present worksite.
The appellant submits that it is supported in the submission that the aggravation had ceased by reason of the fact that the worker has not produced evidence of incapacity after the issuing of the pre-injury duty certificate by Dr Soo. It submitted that the reports which post-date the medical certificates are not based on clinical examinations of the worker and should not be afforded the same level of evidentiary value as the opinion of Dr Soo.
Mr Hyde has been performing his employment as a storeman without further complaint since the certification of Dr Soo. There is no evidence that the worker has undergone further medical intervention, treatment, or sought medical advice regarding the injury. The appellant submits that the absence of that evidence supports a finding that Mr Hyde does not suffer a continuing incapacity.
Mr Hyde submits that there is no issue with the Arbitrator’s finding that he suffered an aggravation of an underlying constitutional condition. There was no evidence before the Arbitrator that the aggravation had ceased; in fact, the evidence of Dr Stephenson is to the contrary. The Arbitrator was entitled to find, as he did, that the effects of the aggravation continued.
Section 47 of the 1987 Act deems the worker incapacitated for employment on the high-reach forklift requiring prolonged standing because he is unable, without substantial risk of further injury, to engage in employment of that kind. Dr Stephenson agreed that such a risk of recurrence of injury was likely if Mr Hyde resumed work on the stand-on forklift.
The medical certificates issued by Dr Soo certified Mr Hyde unfit for work from 13 March 2009 to 17 March 2009. He then certified him fit for suitable duties from 28 March to 15 May 2009. On that date, Dr Soo certified Mr Hyde fit for a return to pre-injury duties for a trial period. On 29 May 2009, he certified Mr Hyde fit for pre-injury duties from 30 May 2009. As I mentioned earlier, there is no report in evidence from Dr Soo.
The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.
Dr Soo’s certification is inconsistent with the evidence of both specialists, Drs Kwa and Stephenson. Dr Kwa made it clear in his report of 29 April 2009, just a month before Dr Soo’s final certification, that consideration should be given to Mr Hyde changing jobs so that he did not have to stand all day at work. That opinion was expressed following his examination of Mr Hyde that day.
The appellant’s submission is inconsistent with the evidence of their own witness, Dr Stephenson. Dr Stephenson’s first report of 3 April 2009 is comprehensive, taking into account the background history, the history of the injury, the current duties, previous medical history, current and previous treatment, current complaints, and an analysis of the radiological evidence. Specifically addressing the question of whether Mr Hyde remained incapacitated, he said, “Mr Hyde is fit for suitable duties which could include forklift driving where he can sit rather than standing all day”.
In his supplementary report of 10 July 2009, Allianz specifically asked him to address the question of whether Mr Hyde was capable of returning to sustainable pre-injury duties working on a stand-up forklift for eight hours a day, five days a week. He rejected that possibility. He did not believe that Mr Hyde had the capability to do so and, in direct response to a question concerning the risk of recurrence of injury should Mr Hyde return to such work, Dr Stephenson expressed the clear view that further injury was likely in those circumstances.
DHL accepted that Mr Hyde had a chronic medical problem. Ms Jeanes acknowledged this in her statement of 9 October 2009 at [26]. She was alert to the risk of further injury if Mr Hyde was required to operate high-reach forklifts for any length of time. She said she was attempting to identify a permanent modified role for him. DHL has consistently refused to allow Mr Hyde to operate equipment were he had to stand up all day.
DHL did not argue before the Arbitrator that the effects of the aggravation of the pre-existing condition suffered by the worker had ceased. That was not an issue at the arbitration. DHL has introduced no evidence to support that proposition. Dr Stephenson’s evidence was consistent with the aggravation not having ceased when he last reported.
In the absence of medical evidence that the effects of the aggravation had ceased, the Arbitrator was correct to conclude that the aggravation continued (Purkess). I concur with the conclusion reached by the Arbitrator at T25.21 in this respect.
For the reasons given by the Arbitrator and for these additional reasons, although I have taken Dr Soo’s certification into account, I also prefer the evidence of Drs Kwa and Stephenson, and find that the aggravating effects of the injury sustained by Mr Hyde on 12 March 2009 are continuing.
For the reasons already identified, I reject the submission that any continuing incapacity does not prevent the worker from performing his pre-injury duties. It is clear from the evidence that Mr Hyde is unfit to perform his pre-injury duties, in that he is incapacitated by work which requires him to stand continuously throughout the working day, or, alternatively, he is deemed, by virtue of s 47 of the 1987 Act, to be incapacitated for such work on the evidence of Dr Stephenson that such work is likely to result in further injury.
For these reasons, I agree with the Arbitrator’s finding that Mr Hyde continues to suffer incapacity for work due to the effects of the injury on 12 March 2009.

Are Mr Hyde’s actual earnings a proper reflection of his capacity to earn – s 40(2)(b)?

The appellant submits that the Arbitrator erred in finding that Mr Hyde’s actual earnings were a proper reflection of his capacity to earn, applying Aitkin.
The appellant relies on:
(a) the evidence of Mr Beveridge that overtime is available “most days” and the full complement of afternoon shiftworkers has only occurred on “three times this year”. Further, Mr Beveridge refers to the additional overtime opportunities within the worksite: labelling, slip sheeting pallets, and transferring cartons;
(b) the wage summary of Mr Thompson, a storeman employed at the same worksite. The wage summary contains evidence (noted as double-time and time-and-a-half) of overtime that has been undertaken by Mr Thompson during the period claimed by Mr Hyde.
DHL submits that Mr Hyde’s concession that “William behaves differently to other workers at DHL in that he stays back for overtime virtually every afternoon” is an admission that Mr Hyde does not avail himself of the opportunity to undertake overtime as Mr Thompson does, and is an acknowledgment that overtime is available daily, contrary to his own statements that no overtime was available. DHL submitted “the applicant’s credibility with respect to the availability of overtime and his acceptance of offers of overtime should be queried”.
The appellant further submits that Mr Hyde’s failure to address overtime opportunities identified by Mr Beveridge (labelling, slip sheeting pallets, and transferring cartons) should favour the evidence of Mr Beveridge: Jones v Dunkel [1959] HCA 8; 101 CLR 298. The appellant submits that the statement of Mr Beveridge should be accepted as demonstrating that there is a substantial amount of overtime available at the worksite (other than forklift-driving) and that, if the worker had wished to perform that overtime, he could have.

DHL submits that, if Mr Beveridge’s evidence is accepted, overtime suitable to the worker is available at the worksite and exercising the discretion under s 40(1) of the 1987 Act should result in an award in favour of DHL in respect of the claim for weekly compensation.
DHL submits that, given the evidence of available overtime, Mr Hyde must be viewed as having voluntarily diminished his earnings by not pursuing the opportunity to undertake it.
Mr Hyde submits that, given the imprecision in Mr Beveridge’s evidence regarding the frequency with which overtime is actually offered, and also having regard to the worker’s evidence concerning the frequency of overtime offers and his reasons for declining it on occasions, the Arbitrator was correct to conclude that he had not acted unreasonably in refusing overtime on the occasions he did. The Senior Arbitrator also took into account the worker’s conduct in cooperating with the employer’s return to work plan.
The Arbitrator dealt with the inconsistent evidence regarding the availability of overtime in his decision at T26.25 and following. Ultimately, the Arbitrator concluded that, given the lack of precision in Mr Beveridge’s statement as to the frequency with which overtime was offered to Mr Hyde, having regard to Mr Hyde’s evidence concerning the limited occasions on which he declined overtime, Mr Hyde had not acted unreasonably in refusing overtime that had been offered to him.
Notwithstanding Mr Beveridge’s assertion that overtime is available most afternoons, he said that he had only asked Mr Hyde to work overtime “on several occasions”. Mr Masella also stated that he had only offered overtime to Mr Hyde “on a few occasions”. He acknowledged that Mr Hyde had taken overtime work on weekends when it was offered to him.
Although Mr Beveridge made a point of stating that overtime work was available labelling cartons, working with Ms Hillsley, there is no evidence that Mr Hyde had been offered overtime doing that work. For that reason, I would be disinclined to draw the Jones v Dunkel inference, as urged by the appellant.
I accept Mr Hyde’s submission that, in the months leading up to the arbitration hearing, Mr Thompson’s earnings records indicate the amount of overtime being worked by Mr Thompson was extremely modest.
Mr Hyde states that, on the occasions that he declined offers of overtime, they had only been made to him within the last half-an-hour of the shift. On those occasions, the overtime was declined because of Mr Hyde’s commitments after work (Mr Hyde’s statement of 26 October 2010 at [21]). Neither Mr Beveridge nor Mr Masella contradicted that evidence.
The Senior Arbitrator ultimately concluded that, given the lack of precision in Mr Beveridge’s statement as to the frequency with which overtime was actually offered to the worker and also having regard to Mr Hyde’s evidence concerning the frequency with which he declined overtime, Mr Hyde had not acted unreasonably on the occasions that he declined overtime. The Arbitrator concluded that he could not form a view that Mr Hyde was failing to exercise his residual capacity or was in some way minimising his earnings which, applying Aitkin, would have required him to depart from the worker’s actual earnings as the measure of his ability to earn under s 40(2)(b). I agree with the Arbitrator’s conclusions for the reasons given by him and for these additional reasons.

Did the Arbitrator err in not considering s 40(2A) of the 1987 Act?

DHL submits that Mr Hyde’s alleged failure to undertake available overtime amounted to an unreasonable rejection of suitable employment.
DHL further alleged that the worker offered “no explanation” for the “multiple rejections” of overtime, other than that he had other commitments after work and he was not provided with reasonable time to respond to the offer of overtime. It is alleged he offered no evidence that he sought additional overtime, although he was aware that other employees were performing additional work.
It is submitted by DHL that, as Mr Hyde was aware that overtime was available to him and elected not to pursue it, that should be “viewed as having rejected the overtime that was available to him”, and that overtime must be quantified at less than $135.79 per week.
Mr Hyde submits that he had not acted unreasonably in refusing overtime and, in any event, s 40(2A) does not apply unless the worker has rejected suitable employment.
I reject the submission for a number of reasons. First, the argument that the worker had rejected suitable employment within the meaning of s 40(2A) was not argued before the Arbitrator.
Parties are bound by the conduct of their case at first instance. It would be unfair on an appeal to allow, by discretionary amendment, the allegation by one party of a new matter whereby the other party would be subjected virtually to a new trial on an issue different from that already litigated: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7–8; Metwally v University of Wollongong (No 2) [1985] HCA 28; 60 ALR 68; 59 ALJR 481.
The s 74 notice issued by DHL did not raise as an issue Mr Hyde’s unreasonable refusal of suitable employment within the meaning of s 40(2A). As the Commission has noted in numerous decisions, the s 74 notice must clearly state the reasons for disputing the claim. It must state in plain language in the body of the document the reason the insurer disputes liability and the issues relevant to that decision: Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488.
No application was made, either before the Arbitrator or on appeal, under s 289A(4) of the 1987 Act for leave to pursue a previously unnotified issue.
For the reasons given, I do not propose to allow DHL to argue the s 40(2A) issue on appeal.
Should I be wrong in this respect, I would reject the submission in any event. Mr Hyde has returned to work as soon as he reasonably could after the injury. He has cooperated with the employer’s return to work program and he has accepted employment at an alternative location against his wishes. DHL’s assertion that there were “multiple rejections of overtime” is not borne out by the evidence. At best, on the evidence of Mr Beveridge and Mr Masella, Mr Hyde had rejected overtime on “several occasions” only. He did not reject suitable employment.

The exercise of the Arbitrator’s discretion under s 40

DHL submits that the Arbitrator erred in the exercise of his discretion under s 40 of the 1987 Act by failing to accept that any loss of earnings suffered by Mr Hyde was not the result of any incapacity, but was due to Mr Hyde’s attitude to the pursuit of overtime and the general availability of overtime.
DHL submits that Mr Hyde’s failure to avail himself of opportunities to work overtime and his actions in leaving the worksite at his precise scheduled finishing time are relevant to a finding that the worker’s conduct has limited his ability to earn.
Further, DHL submits that Mr Hyde’s conduct in departing work and rejecting overtime is voluntary, and it cannot force him to participate in overtime. It submits that, as an employer, its actions in approaching Mr Hyde to perform overtime and providing him with a worksite at which ample overtime was available are sufficient to place the onus on the worker to show that he pursued overtime and still suffered a wage loss.
Mr Hyde submits that the Arbitrator considered whether any discretionary factors required a reduction in the mathematical difference between his actual earnings and his probable earnings and concluded that there was no justification for reducing the difference. The Arbitrator had regard in particular to the worker’s willingness to cooperate in the return to work program and the fact that he had continued to perform overtime from time to time. He also considered the worker’s reasons for not working overtime on the occasions he had rejected it and concluded that the worker had not been artificially reducing his earnings.
Mr Hyde submits that the Arbitrator did not fail to exercise the discretion; indeed, he properly considered the question and determined that there were no reasons to reduce the worker’s entitlements.
In addition, Mr Hyde submits that the Arbitrator gave due consideration to, and cogent reasons for, accepting Mr Hyde’s evidence that he did most of the overtime offered to him and that, although he rejected overtime on a couple of occasions, this was for valid reasons.
To submit that the Arbitrator should have exercised his discretion to reduce the worker’s entitlements due to an onus on the worker to show that he had pursued overtime is to reverse the onus on this issue. Once a worker has established that comparable earnings exceed his or her ability to earn, the evidentiary burden shifts to the employer to lead evidence as to why, in the exercise of the discretion, that difference should be reduced: Sutherland Shire Council v Wurzel [2010] NSWWCCPD 79 at [92].
The Arbitrator concluded that there were no discretionary factors requiring him to reduce the mathematical difference between the worker’s probable earnings and his actual earnings. The Arbitrator correctly took into account the worker’s willingness to cooperate with the return to work program and his continuing to work overtime from time to time. For the reasons already given, I conclude that Mr Hyde had not unreasonably rejected offers of overtime, but that the overtime available to him post-injury was substantially less than that which was available to him before he was injured. For these reasons, I am of the view that the Arbitrator correctly concluded that there was no valid reason to exercise his discretion to reduce the worker’s entitlements.

Admission of late evidence and prejudice

DHL submits that the Arbitrator failed to consider the prejudice that was suffered by the appellant by the late admission of the worker’s statement signed on 26 October 2010 and served on the appellant on 29 October 2010, the day before the hearing. It is submitted that the further statement was in response to Mr Beveridge’s evidence. The prejudice alleged is that DHL had insufficient time to respond to the evidence.
At the commencement of the arbitration, both parties applied for leave for the admission of late documents. The application dated 29 October 2010 was admitted in evidence without objection (T2.13).
It was clear from the worker’s statement contained in the Application to Resolve a Dispute filed on 31 August 2010 that the availability of overtime was an issue in these proceedings. Notwithstanding this, the statement from Mr Beveridge was not obtained until 25 October 2010, and the application to have it admitted as a late document was not filed until 26 October 2010, that is, four days before the arbitration hearing on 30 November 2010.
Notwithstanding the late service of the evidence, Mr Hyde’s solicitors acted extremely promptly in obtaining a response from him on 26 October 2010 and filing an application to have it admitted as a late document the next day.
I note that Mr Beveridge is a senior officer employed by DHL at their premises at Bligh Park in New South Wales. There was no application to adduce oral evidence from Mr Beveridge, nor was there any suggestion that he would not have been available to give evidence.
Given these events, I am not satisfied that DHL suffered any prejudice by the late admission of Mr Hyde’s statement, which was obtained in response to the late evidence from DHL.

The s 60 order

DHL submits that the Arbitrator was in error in entering a general order for the payment of medical expenses pursuant to s 60. It submits that there was no evidence attached to the Application to Resolve a Dispute of any medical expenses having been incurred. It submits that the Arbitrator did not have jurisdiction to make an order under s 60: NSW Sugar Milling Co-operative Ltd v Manning [1998] NSWCC 33; 16 NSWCCR 606; 44 NSWLR 442 and Widdup v Hamilton [2006] NSWWCCPD 258; 5 DDCR 85 (Widdup). DHL submits that s 60 benefits only accrue where there is evidence that the amount claimed has been incurred. In the absence of evidence of an expense being incurred, the Commission does not have power to make declaratory orders: Widdup.
Mr Hyde submits that the Arbitrator did not make a declaratory order. The making of a general order for the payment of s 60 expenses is not the type of order referred to in Widdup.
Mr Hyde further submits that, before making a general order, the Arbitrator invited counsel to make submissions on the matter, and DHL’s counsel chose not to.
DHL’s counsel took no objection to the making of a general order pursuant to s 60 (T30.54).
The submission that the Commission does not have jurisdiction to make a general order under s 60 is incorrect. The issue was considered in Widdup, where the then President, Justice Sheahan, held that the Commission does not have power to make a declaratory order regarding liability for the payment of medical expenses not yet incurred. However, his Honour went on to say at [19]:
“In determining the above disputes [on injury, causation and the need for medical treatment] it is accepted practice in the Commission that, after making the requisite findings of worker, injury, incapacity and/or permanent impairment and the making of appropriate orders that result from those findings, it also makes an order for the payment of reasonably necessary medical expenses incurred and properly verified together with a ‘general order’ under s 60. This practice was expressly noted by Egan J in Brespro Pty Limited v Garry John Keenahan NSWCC 11155 of 1991, 12 May 1992 (‘Brespro’), unreported.”
Widdup is not authority for the proposition that the making of a “general order” for the payment of s 60 expenses exceeds the Commission’s jurisdiction. The Commission does have jurisdiction to order the payment of section 60 expenses; however, such an order is limited in its efficacy to medical expenses “reasonably necessary” as a result of the injury. Such an order does not determine liability for any particular treatment.
For the reasons given, I reject the submission that the Senior Arbitrator was in error in making a general order for the payment of medical expenses pursuant to s 60.

CONCLUSION

Having conducted a review on the merits, I have determined that, for the reasons given in this decision, the correct position is that Mr Hyde is entitled to weekly compensation under s 40 in the sum of $135.79 per week from 25 May 2009 to date and continuing.

DECISION

For the reasons given in this decision, the Arbitrator’s determination of 30 November 2010 is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal.

Judge Keating

President
4 April 2011

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE