Dickson v Olympic Aluminium Co Pty Ltd
[2007] NSWWCCPD 96
•18 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Dickson v Olympic Aluminium Co Pty Ltd [2007] NSWWCCPD 96
APPELLANT: Raymond Dickson
RESPONDENT: Olympic Aluminium Co Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC11216-05
DATE OF ARBITRATOR’S DECISION: 23 March 2006
DATE OF APPEAL DECISION: 18 April 2007
SUBJECT MATTER OF DECISION: Section 40 Workers Compensation Act 1987; onus of proof
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Marsdens Law Group
Respondent: Goldbergs
ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 23 March 2006 is revoked and the following determination made:
“1.Award for the Applicant under section 40 of the Workers Compensation Act 1987 in the sum of $326.30 per week from 30 March 2005 to date and continuing.
2.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 19 April 2006 Raymond Dickson (‘the Appellant Worker/Mr Dickson’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 March 2006.
The Respondent to the Appeal is Olympic Aluminium Co Pty Ltd (‘the Respondent Employer/Olympic’).
Mr Dickson was born on 10 November 1961. He left school in 1977 after attaining his school certificate. Apart from obtaining a fork lift driver’s licence, he has no other tertiary qualifications.
His work career has always been in areas that required physical exertion: brickies’ labourer, dock hand, machine operator, packer, factory worker, warehouse manager/storeman and driver. On 4 December 2002 he started work with Olympic as a storeman/driver. This job required him to pick orders, load the company truck and deliver the load.
On 16 December 2002 he was required to lift sheets of mesh and aluminium frames in the course of his employment. Whilst performing this work he injured his back. His claim was accepted and he was paid voluntary weekly compensation until 29 March 2005 when liability was denied on the ground that his condition was no longer related to his injury in December 2002.
On 11 July 2005 an Application to Resolve a Dispute (‘the Application’) was registered in the Commission seeking weekly compensation from 30 March 2005, lump sum compensation and medical expenses.
By its Reply filed on 20 September 2005 Olympic disputed every aspect of Mr Dickson’s claim.
The claim for lump sum compensation was referred to an Approved Medical Specialist (‘AMS’) for assessment. The AMS (Dr Beer) examined Mr Dickson on 28 November 2005 and issued a Medical Assessment Certificate (‘MAC’) assessing him to have 12 % whole person impairment as a result of his work injury. That assessment was accepted by Olympic and the appropriate compensation paid.
A Commission Arbitrator heard the remaining claims in an Arbitration hearing on 21 February 2006. The only issued argued by Olympic at the hearing was the extent of Mr Dickson’s incapacity on the open labour market. On that issue Mr Dickson was questioned extensively by the Arbitrator but was not cross-examined by the solicitor for the Respondent Employer.
In a reserved decision delivered on 23 March 2006 the Arbitrator made an award in favour of Mr Dickson under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the sum of $103.30 per week from 29 March 2005 to date and continuing.
Mr Dickson seeks leave to appeal the Arbitrator’s decision on the ground that the award in his favour should have been at the maximum statutory rate of weekly compensation payable for worker with no dependants.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum of compensation at issue on appeal satisfies the thresholds in section 352(2).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 March 2006, records the Arbitrator’s orders as follows:
“1.An award for the Applicant in relation to the claim for weekly benefits in the sum of $103.30 per week from 29.3.05 to date and continuing.
2.Leave is given to make written submissions on costs if this issue cannot be agreed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to properly identify and apply the correct evidentiary onus in respect of capacity to perform suitable employment (‘onus of proof’);
(b)failing to have regard to or give any weight to relevant evidence, namely, Mr Dickson’s attempts to institute rehabilitation through the CRS Australia (‘CRS’) (‘the evidence’);
(c)finding that Mr Dickson could work as a storeman (‘ability to work as a storeman’), and
(d)giving insufficient reasons (‘reasons’).
SUBMISSIONS AND FINDINGS
Onus of Proof
The Appellant Worker argues that as injury was not in issue and he discharged the onus of establishing incapacity, the onus of proving the facts necessary to limit an award under section 40 of the 1987 Act rested with the Respondent Employer. The authority cited in support of this submission is Bryer v Metropolitan Water Sewerage & Drainage Board (1939) 39 SR (NSW) 321 (‘Bryer’) where Jordan CJ said at 331-333:
“The burden of proof lies upon the worker to establish (1) that he has received [an injury] ..., and (2) that as a result he has sustained some incapacity for work ... When the worker establishes this, he is prima facie entitled to the compensation provided for by s. 9 ... unless it appear that incapacity is partial only, and that it is necessary to limit the weekly payments in the manner provided for by s. 11. The burden of proving that the incapacity established by the worker is partial only, and, if so, of proving the other facts necessary to involve a limitation of payments under s. 11 is upon the employer: Proctor & Sons v Robinson [1911] 1 KB 1004 (CA); Cardiff Corporation v Hall [1911] 1 KB 1009 (CA). This burden may be discharged by material elicited from the worker or his witnesses or by evidence called on behalf of the employer. But it is for the employer to supply the necessary material to the extent to which it may not be supplied by the evidence given on behalf of the worker. When the employer desires to invoke the provisions of s. 11, he may take the line of endeavouring to establish that the worker is able to earn his full pre-injury weekly wages; or he may endeavour to establish the worker's ability to earn some lesser average sum, so as to confine the amount of the compensation within two definite limits. If he chooses the former alternative, and fails because the Commission is not satisfied that the worker can earn his full pre-injury average but infers that his average would be somewhat less, the employer cannot complain if the Commission then proceeds, as best it can, to perform the statutory duty imposed on it by s. 11. He certainly cannot complain if the Commission proceeds in the absence of any sworn evidence of definite amounts. It was for him to supply such evidence if it was available; and if it was impossible for him to obtain it, he has no ground for complaint if the Commission in its absence does the best it can with material at its disposal, including its general and local knowledge to give him the benefit of the limitation provided for by s. 11.”
The passage relied on from Jordan CJ was not followed by the High Court in J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 (‘Nelson’). In that case the majority (Menzies, Owen and Gibbs JJ) considered and applied the authority of Philips v The Commonwealth (1964) 110 CLR 347 where it was held that the onus lies upon an employee to show that he should be awarded compensation as a person partially incapacitated with a diminished earning capacity. The headnote to Nelson provides a fair summary of the majority decisions:
“…in a claim for compensation in a case of partial incapacity the onus of proving the difference between the weekly amount which the worker would probably have been earning but for the injury and the average weekly amount he was earning or was able to earn, after injury, rested upon the worker seeking the award and not upon the employer opposing the application.”
Owen J noted at 644 that in Bryer the court was dealing with an application made by an employer to review the amount of weekly payments payable under an existing award.
Menzies J quoted the following passage from Latham CJ in Thompson v Armstrong & Royse Pty Ltd (1950) 81 CLR 585 at 598 (‘Thompson’):
“The cases show that in order that an employer should become liable
actually to pay compensation in respect of a particular period there must be
(1) an injury of the worker as defined in the Act; (2) a resulting incapacity
for doing the work for which he was earning wages; (3) a consequent economic
loss of wages. If in fact he is still receiving those wages in respect of a
particular period he fails to establish the third element and the employer is
not liable in respect of that period - though he would become liable if, theincapacity continuing, he ceased to pay the wages.”
Gibbs J added an important observation at 649:
“I cannot believe that in an ordinary case the question whether the onus of proving the facts necessary to establish the difference referred to in s11(1)(a) lies on the worker or on the employer is of much practical importance…”
The above authorities were considered by the Supreme Court of the Northern Territory Court of Appeal in Work Social Club – Katherine Inc v Rozycki (1998) 120 NTR 9 where Mildren J (Gallop ACJ and Bailey J concurring) stated at 16:
“Mr Southwood submitted that the onus lay upon the worker to establish the level of her incapacity, both in the physical sense and in the sense of the amount of compensation to which that level of incapacity entitled her. In my opinion, that submission is correct. This was a primary application by the worker for compensation. The worker’s case was that she was totally incapacitated for a period, and thereafter partially incapacitated. It is well established that the worker, is such a case, bears the legal as well as the evidentiary burden: see Horne v Sedco Forex Australia Pty Ltd (1992) 106 FLR 373 at 383-4 and the authorities therein cited. In my opinion, the obiter remarks of this Court in Crestwood PhoenixDarwin Pty Ltd in applying Bryer v Metropolitan Water Sewerage and Drainage Board cannot be followed as the passage in Bryer which the Court approved was overruled by the High Court in J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625.”
As a result, Bryer cannot be accepted as an accurate statement of the law on the question of onus of proof in a claim for weekly compensation under section 40 of the 1987 Act.
Given the above authorities, I reject the Appellant Worker’s submission that the Respondent Employer carried the onus of proving the facts necessary “to involve a limitation of payments under section 40”. In a primary claim for weekly compensation (that is, a claim where no prior award has been made for the payment of weekly compensation) the worker bears the legal and evidentiary burden of proof. In the present case Mr Dickson established injury and incapacity. However, before he is entitled to recover weekly compensation it is also necessary for him to establish that he has suffered a “consequent economic loss” (Thompson). The Arbitrator was satisfied that he had discharged that onus and made an award in his favour. In determining the quantum of that award each party carried an evidentiary burden to establish the case he or it urged the Commission to accept. On that issue the Respondent Employer submitted that there was no loss and drew the Arbitrator’s attention to evidence which, it argued, supported that position. The Arbitrator rejected that submission. In doing so she did not “misconceive where the burden of this evidentiary onus lay” (Appellant Worker’s submissions page two).
The Evidence
The evidence establishs that Mr Dickson suffered a significant injury to his lower back in the course of his employment with Olympic in December 2002. The nature and extent of his injury was well summarised in the MAC prepared by Dr Beer who recorded Mr Dickson to have the following symptoms and complaints as at November 2005 (MAC, page three):
a) pain in his lower back extending down the buttock, thigh and calf;
b) often he has to spend three or four days with total bed rest;
c) sometimes when he sneezes he gets pain in the back;
d) he has difficulty sitting for half an hour (he has to stand up);
e) he can walk for about 5-10 minutes and then has to stop and rest;
f) if he leans forward 20 degrees to shave or to do some dishwashing he complains of pain in the lower back, and
g) in the last six months things have worsened considerably.
In respect of Mr Dickson’s home duties, Dr Beer noted that they were difficult. Mr Dickson has to pay someone to mow his lawn and he is unable to change the oil in his car.
On examination, Dr Beer’s main findings were:
a) lumbar spinal movements were very limited with forward flexion to the mid thighs;
b) nearly two centimetres of wasting of the left thigh;
c) straight leg raising of 50° on the right and 40° on the left, and
d) a degree of sciatic nerve irritation in the left leg with dermatome diminution to pinprick sensation on L5 to two point discrimination of the left foot.
Dr Beer concluded that Mr Dickson sustained a disc protrusion in his lumbosacral region with L5 nerve root irritation.
Dr Endrey-Walder reported on Mr Dickson’s condition on 1 October 2004. At page five he assessed Mr Dickson’s fitness for work as follows:
“Mr Dickson is not fit, and will never again be considered fit, for anything like the physically demanding work activity with which he had always earned his living.
His main functional restrictions relate to his incapacity to stand or sit for prolonged periods of time, lift weights beyond, at the most, 8-10kgs, twist and turn.”
In a report dated 16 March 2005, Dr Chung, Mr Dickson’s general practitioner, stated that “since his accident Mr Dickson has been unfit for work. He may try to look for sedentary work in the next six to twelve month [sic] time”. In addition, Dr Chung provided various medical certificates. The last was dated 7 February 2006 in which he declared Mr Dickson to be fit for work lifting up to two kilograms for six hours per day three days per week.
The Appellant Worker also relied on evidence from Dr Sheridan, his treating neurosurgeon, in a report dated 16 June 2005. On the question of fitness for work Dr Sheridan stated:
“I explained to him he was unlikely to get back to his previous job which [he] said involves a lot of heavy lifting and bending. I explained to him that he would need to look at a permanently modified work environment. I explained to him that it was realistic that he gets back to a non-physical type job.”
At the request of the Respondent Employer’s insurer (‘Allianz’), Mr Dickson was referred to Advanced Personnel Management (‘APM’) on 9 January 2003. A report from that organisation dated 4 March 2004 stated that a vocational assessment was conducted with Mr Dickson to “identify a suitable return to work plan”. However, the results of that assessment were not in evidence and it is not known if any return to work plan was prepared by APM.
Allianz also referred Mr Dickson to Dr Marsh at Marsh Occupational Health Consultancy on 14 February 2003. Dr Marsh thought Mr Dickson was unfit for his pre-injury duties and that he would be better in the long term seeking “some form of lighter form of stores work”.
The Respondent Employer also relied on the evidence from Drs Mastroianni and Fearnside dated 31 January 2005 and 10 May 2004 respectively. Dr Mastroianni stated that Mr Dickson was fit for work not requiring heavy lifting and continual bending but Dr Fearnside did not comment on fitness for work.
Mr Dickson also tendered a report from CSR Australia dated 7 February 2006. That document refers to a vocational assessment conducted on 29 July 2005 when the following options for suitable employment were recommended: receipt/dispatch clerk, forklift driver, and general clerk. With CSR’s assistance Mr Dickson attempted to update his computer skills but he continued to struggle in that field. Interview feedback indicated that he lacked the required office skills to be competitive in administrative and office duties. Pamela Davidson, psychologist with CRS, noted the following barriers to Mr Dickson’s return to work:
·injury limitations;
·slow injury progression;
·restrictions for work in relation to his lower back condition (lifting, bending, prolonged sitting, limited hours for work 5 hours x 3 days per week);
·limited by pain and sustained activities;
·previous work history in manual/labour-intensive positions;
·limited office skills/experience;
·low confidence and self esteem, and
·no recent work experience.
Ms Davidson noted that Mr Dickson had the following restrictions: “no heavy lifting, repetitive bending, no prolonged standing, driving up to 60 minutes”.
The Appellant Worker challenges the Arbitrator’s decision on the ground that she failed to refer to or consider the evidence from CRS. That submission is not completely accurate. At paragraph 32 of her Statement of Reasons for Decision (‘Reasons’) the Arbitrator noted that Mr Dickson received assistance from CRS and she accepted that his computer skills were not such that they would be likely to secure him a job where those skills “are central to the position requirements”. However, the Arbitrator made no other reference to the CRS report or to the significant ‘barriers’ to Mr Dickson returning to work.
An assessment of all of the evidence from CRS was crucial to a proper and fair determination of Mr Dickson’s section 40 claim. The Arbitrator’s failure to properly consider and assess that evidence was an error.
Ability to Work as a Storeman – Reasons
The Arbitrator found that that Mr Dickson had a varied work history that gave him some transferable skills. She found at paragraph 33 of her Reasons that he could work in the following areas:
a)car park attendant;
b)driving positions that allowed him breaks at least every hour;
c)light packing work;
d)paper and telephone work associated with warehouse jobs, and
e)on a cash register.
Her ultimate finding was that he could earn “at least in the vicinity of $523 per week – the lowest rate on the Storeman and Packers General Award which was in evidence” (Reasons paragraph 37). If the Arbitrator intended to find that Mr Dickson was fit to work fulltime as a storeman, that finding was inconsistent with her statement at paragraph 33 that he could do the “paper and telephone work associated with warehouse type activity but could not do any heavy lifting which is often associated with warehouse jobs”. It was also inconsistent with the undisputed evidence that he was unfit for work of that kind. That finding involves an error in the determination of the claim that goes to the essential elements of the award.
The Appellant Worker submits that all of his previous jobs had a significant physical element to them and had not given him any real transferable skills of an administrative or clerical nature. I agree with that submission. Mr Dickson left school at age 16 and has undergone no further training or education. When he was the ‘warehouse manager’ at Triton Manufacturing he was the only person in the warehouse. In that position it was his job to unload trucks, put stock away, pick orders, load them and shrink-wrap them. His administrative duties were minimal to say the least, and were not such as to equip him for an alternative career in clerical or other administrative duties.
The Respondent Employer submits that Mr Dickson’s restrictions were in respect of “lifting, bending and twisting” and there was no medical evidence that Mr Dickson could not work as a storeman. This submission fails to acknowledge that the work of a storeman requires fitness to perform the very activities that the medical evidence indicates Mr Dickson is unable to perform. The essential requirements of a storeman’s job include “general labouring and cleaning duties. Order assembling, including picking stock. Loading/unloading” (see Storeman and Packers General (State) Award). The medical evidence did not dispute that Mr Dickson was not fit for that work.
The Respondent Employer relies on the Arbitrator’s statement that Mr Dickson has “been attractive to numerous employers over the years and in positions where skills other than his ability to do heavy work has been needed” (Reasons paragraph 37). This finding overlooks the fact that the ‘other skills’ were very much secondary to his primary job which was always physical and required him to bend and lift. It also overlooks the fact that Mr Dickson is restricted in his ability to sit and stand for prolonged periods (T9.34 and T22.27).
When assessing a worker’s ability to earn under section 40(2) of the 1987 Act it is prudent to keep in mind the words of Judge Burke in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 at 180 (adopted and approved by Handley JA in Cowra Shire Council v Quinn (1996) 13 NSWCCR 175 at 179), where his Honour noted that “it is not sufficient to merely identify a particular avenue of employment and attribute the income from such a job as a man’s capacity to earn”. Allowance must be made for the availability of work and an assessment made of the particular worker’s capacity to earn having regard to his particular circumstances.
The Arbitrator failed to have proper regard to Mr Dickson’s particular circumstances or to his evidence of his inability to sit or stand for prolonged periods and how that might impact on his ability to obtain or retain employment. Her statement that he could do paper and telephone work associated with warehouse jobs failed to acknowledge that all of the warehouse jobs previously performed by Mr Dickson required the ability to stand, bend and lift.
The Arbitrator was also in error when she stated “there is no substantial medical evidence that he could not work full time, or close to it, in suitable duties. His restrictions I find are as set out in the specialist medical evidence” (Reasons paragraph 37). The specialist medical evidence was silent as to whether Mr Dickson could perform suitable duties full time or part time. The only medical evidence expressing an opinion on that issue was Dr Chung who thought Mr Dickson was fit for restricted duties for six hours per day three days per week. Mr Dickson’s evidence was that as he has not worked for three years he is out of condition and he could possibly start back at work three days per week and work his fitness level up to five (T22.34). This evidence of Mr Dickson’s inability to work full time was consistent with Dr Beer’s history that he often had to spend there or four days with total bed rest.
The Arbitrator was in error in finding that Mr Dickson is able to earn the award rate for a storeman, such a finding being contrary to the evidence. This error requires that the Arbitrator’s decision be revoked and that the matter be re-determined. There being no credit issues in this matter, I am in as good a position as an Arbitrator to conduct the re-determination and that is the course I propose to adopt.
RE-DETERMINATION
I have already set out the evidence relevant to Mr Dickson’s capacity to earn and I will not repeat it. I have read all of the evidence and submissions before the Arbitrator and on appeal in this matter. I accept that as a result of his injury with Olympic Mr Dickson has a moderate to significant back disability and, as a result of his lack of education and training, that disability has had a substantial impact on his ability to secure employment on the open labour market.
Having regard to Mr Dickson’s age, limited education, past work experience and his significant physical restrictions as a result of his injury, I believe that he is unfit for any of the occupations he performed prior to his injury. In particular, he is unfit for work as a storeman and packer, labourer or a forklift driver. As to work as a forklift driver, I have had regard to and I accept Mr Dickson’s evidence at T11.38 that he would not be able to perform that work. He has extremely limited transferable skills and faces significant barriers to obtaining work (see CRS report set out at [38] above).
In all the circumstances, and having regard to the matters set out in section 38A of the 1987 Act and to the evidence set out earlier in this decision, I find that Mr Dickson is able to earn in the labour market reasonably assessable to him the sum of $300.00 per week performing part time light process work or work as a casual driver. It follows that I do not accept the Appellant Worker’s submission that he is only able to earn $100.00 per week.
Applying the steps set our in Mitchell v Central West Health Service (1997) 14 NSWCCR 526, I find:
a) Mr Dickson’s probable earnings but for injury (section 40(2)(a)) are the agreed figure of $626.30 per week;
b) his ability to earn in some suitable employment from 30 March 2005 to date is $300.00 per week;
c) the difference between $626.30 and $300.00 is $326.30 per week;
d) there are no discretionary factors that warrant a reduction in the figure of $326.30 per week, and
e) there will be an award in the sum of $326.30 per week from 30 March 2005 to date and continuing under section 40 of the 1987 Act.
DECISION
The Arbitrator’s determination dated 23 March 2006 is revoked and the following determination made:
“1.Award for the Applicant under section 40 of the Workers Compensation Act 1987 in the sum of $326.30 per week from 30 March 2005 to date and continuing.
2.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal as agreed or assessed.
Bill Roche
Deputy President
18 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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