Dive v Sutherland Shire Council and Linfox Australia Pty Ltd
[2006] NSWWCCPD 104
•31 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Dive v Sutherland Shire Council and Linfox Australia Pty Ltd [2006] NSWWCCPD 104
APPELLANT: Phillip Stewart Dive
FIRST RESPONDENT: Sutherland Shire Council
SECOND RESPONDENT: Linfox Australia Pty Ltd
FIRST RESPONDENT’S INSURER: (i) Allianz Australia Workers Compensation (NSW) Limited (30 June 1987 to 30 September 1988)
(ii) Self Insurer (from 1 October 1988 to date)
SECOND RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC13143-04
DATE OF ARBITRATOR’S DECISION: 15 February 2005
DATE OF APPEAL DECISION: 31 May 2006
SUBJECT MATTER OF DECISION: Application of sections 4, 38 and 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant:
James A Moustacas & Co
First Respondent:
Goldbergs (Allianz)
Vardanega Roberts (Self Insurer)
Second Respondent:
Moray & Agnew
ORDERS MADE ON APPEAL:
1. The decision of the Arbitrator dated 15 February 2005 is revoked and the following orders are substituted:
1) Award in favour of the Applicant (Phillip Stewart Dive) against the First Respondent (Sutherland Shire Council) pursuant to section 40 in the sum of $130 per week from 15 March 1991 to date and continuing. Allianz Australia Workers Compensation (NSW) Limited is to indemnify the First Respondent in respect of the award.
2) Award in favour of the Second Respondent (Linfox Australia Pty Ltd).
3) The First Respondent to pay the Applicant’s reasonable and necessary section 60 expenses on production of accounts and receipts. Allianz Australia Workers Compensation (NSW) Limited is to indemnify the First Respondent.
4) The First Respondent to pay the Applicant’s costs as agreed or assessed. Allianz Australia Workers Compensation (NSW) Limited is to indemnify the First Respondent.
2. The First Respondent is to pay the Appellant’s costs of this appeal. Allianz Australia Workers Compensation (NSW) Limited is to indemnify the First Respondent.
BACKGROUND TO THE APPEAL
On 8 March 2005 Phillip Stewart Dive (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 February 2005.
The Respondents to the Appeal are Sutherland Shire Council (‘the First Respondent’) and Linfox Australia Pty Ltd (‘the Second Respondent’).
The Appellant was employed by the First Respondent between 11 October 1982 to 28 January 1990 as a Garbage Offsider. The Appellant was then employed by the Second Respondent, initially as a Garbage Truck Driver and then as a Garbage Offsider. Notwithstanding the change in employment his duties remained the same being garbage collection duties in the Sutherland Shire.
The Appellant alleges that he has received injury to his back and legs arising out of and in the course of his employment with each of the Respondents. The first injury allegedly occurred on 28 December 1987 being an injury to his lower back sustained as the Appellant lifted a heavy bin. As a consequence of the alleged injury the Appellant was absent from work until 6 January 1988. The Appellant alleges that he suffered injury to his back and legs as a result of the nature and conditions of his work with the First Respondent thereafter. He suffered recurrences of disability in the course of his work firstly on 8 January 1988 and 13 May 1988. The Appellant’s allegation of injury with respect to the Second Respondent was that he suffered back and leg injuries on 29 March 1990 as well as injuries to those parts of his anatomy as a result of the nature and conditions of his work throughout his employment until his retrenchment on 15 March 1991.
The Appellant during the currency of his employment with the Respondents received medical treatment, including spinal surgery in mid 1988, and had various periods absent from work by reason of alleged incapacity. The Appellant was paid wages or compensation benefits in respect of absences from work up until the termination of his employment by the Second Respondent on 15 March 1991. At the date of his retrenchment the Appellant had returned to his usual duties however alleged that he had never recovered fully from his injuries and was experiencing difficulty performing his duties at work.
The Appellant filed an Application to Resolve a Dispute with the Commission on 27 August 2004 seeking orders with respect to his entitlement to weekly benefits, medical expenses and lump sums pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
Replies to the Application to Resolve a Dispute were filed on behalf of the two Insurers of the First Respondent, namely Allianz Australia Workers Compensation (NSW) Limited the Insurer between 30 June 1987 and 30 September 1988, and the First Respondent itself as Self Insurer with respect to the period from 1 October 1988 until transfer of the Appellant’s employment to the Second Respondent. The Reply filed on behalf of the Second Respondent identified the Insurer as Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’).
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 15 February 2005 records the Arbitrator’s orders as follows:
“(i)Award in favour First Respondent in the interests of Allianz Australia Workers Compensation (NSW) Limited in respect of the Applicant’s claim for weekly payments of compensation.
(ii)Award in favour of the First Respondent as a Self Insurer in respect of the Applicant’s claim for weekly compensation.
(iii)Award in favour of the Second Respondent in respect of the Applicant’s claim for weekly compensation.
(iv)That the First Respondent in the interests of Allianz Australia Workers Compensation (NSW) Limited pay the Applicant’s reasonable and necessary section 60 of the Workers Compensation Act 1987 expenses on production of accounts and/or receipts.
(v)That the First Respondent in the interests of Allianz Australia Workers Compensation (NSW) Limited pay the Applicant’s costs as agreed or assessed.”
The Arbitrator’s statement of reasons for the Determination (‘Reasons’) set out above were given on 15 February 2005.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in finding that the Appellant was not injured as a result of the nature and conditions of his employment with either the First or the Second Respondent.
(ii)Whether the Arbitrator erred in finding that the Appellant was not incapacitated as a result of an injury with the Second Respondent.
(iii)Whether the Arbitrator erred with respect to her finding that the Appellant was capable of “managing his pre-injury duties between 7 August 1989 and March 1991”.
(iv)Whether it was necessary for the Arbitrator to find that the Appellant’s redundancy in March 1991 was “unrelated to his injury”.
(v)Whether the Arbitrator erred in finding that the Appellant’s redundancy in March 1991 was unrelated to his injury.
(vi)Whether the Arbitrator erred in finding that the Appellant was not totally incapacitated.
(vii)Whether the Arbitrator erred in finding that the Appellant was not seeking suitable employment at any time since March 1991.
(viii)Whether the Arbitrator erred in concluding that the Appellant’s efforts at looking for suitable employment were not genuine.
(ix)Whether the Arbitrator erred in the application of section 38 of the 1987 Act.
(x)Whether the Arbitrator erred in the application of section 38A of the 1987 Act.
(xi)Whether the Arbitrator erred in concluding that the Appellant was capable of undertaking work such as fulltime duties as a Car Park Attendant, Console Operator, or Service Station Attendant.
(xii)Whether the Arbitrator erred in failing to find that the Appellant was totally incapacitated and thereby erred in applying section 40 of the 1987 Act.
(xiii)Whether the Arbitrator erred in the application of section 40 of the 1987 Act and in respect of the application of a discretion pursuant to that section.
The issues enumerated in paragraph 10 above are a summary of issues raised by the Appellant in his Application under the heading “Appellant’s Grounds of Appeal”. I note that Ground 2 (not summarised above) appears to be ambiguous and is addressed hereunder. The matters thus raised have been the subject of submissions in response by representatives of each of the Respondents and their Insurers.
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.”
The Appellant in its Application submits that this matter is not capable of determination on the papers and that “an appeal by way of oral hearing is required”.
The three representatives of the Respondents and their Insurers submit that this matter is capable of determination on the papers.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal, determined by reference to the quantum of the Appellant’s claim, exceeds the sum of $5,000 and is at least 20% of the amount claimed by the Appellant in the decision appealed against and thereby the subject matter of the appeal meets the threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator comprised the following:
(i)Those documents which were attached to the original Application to Resolve a Dispute (Schedule A and Schedule B) filed on behalf of the Appellant.
(ii)Exhibit A received into evidence at the hearing of the arbitration being a letter from the Second Respondent to the Appellant’s former solicitors dated 16 September 1991.
(iii)Report of Dr T Mastroianni annexed to Application to Admit Late Documents filed on behalf of Goldbergs Solicitors for the First Respondent (in the interests of Allianz).
(iv)Those documents annexed to the Reply filed by Vardanega Roberts Solicitors acting on behalf of the First Respondent (as Self Insurer) filed 15 September 2004.
(v)Those documents annexed to the Reply filed 16 September 2004 by Moray & Agnew Solicitors for the Second Respondent as well as those documents (two reports of Dr Wilding each dated 12 October 2004 and a “tax calculation” relating to the Appellant’s income for the year ending 30 June 2004) annexed to correspondence from Moray & Agnew addressed to the Registrar of the Commission dated 1 November 2004.
In addition to the documentary evidence referred to in paragraph 20 above the Arbitrator permitted oral evidence in chief and in cross-examination by the Appellant at the hearing. A transcript of that evidence appears on the Commission’s file.
The Appellant, at the hearing of the arbitration, was permitted to amend his Application to Resolve a Dispute to include an allegation of injury in the course of employment with the Second Respondent on 29 March 1990 and as a result of nature and conditions of employment between January 1990 and March 1991 being injury to his back and both legs.
The documentary evidence before the Arbitrator is specifically identified at paragraph 10 of her Statement of Reasons for Decision.
The Appellant’s allegation of injury as against the First Respondent is addressed in his Statement dated 23 June 2004 which was before the Arbitrator. It is alleged that the Appellant suffered a back injury on 28 December 1987 in the course of his normal duties as a Garbage Offsider, such injury occurring as he lifted a bin and twisted. The Appellant was absent from work between 29 December 1987 and 6 January 1988 during which time he was treated by his General Practitioner Dr De Sousa. The Appellant alleges that upon his return to work he remained in pain and on 8 January 1988 suffered a further injury to his back as a result of his work duties. He again went off work. Thereafter the Appellant was off and on work doing his normal duties until he suffered “another bout of a reoccurrence [sic] of my back injury”. At the relevant time the Appellant was doing “a lot of bending and lifting and twisting”.
The Appellant was referred by Dr De Sousa to Dr Peter Blum, Consultant Neurosurgeon, for specialist opinion. Dr Blum was first consulted by the Appellant on 17 June 1988. Dr Blum in his report dated 17 June 1988 which was before the Arbitrator noted that a CAT scan “confirmed a large L4-5 disc protrusion”. Dr Blum advised myelography and subsequently (on 27 July 1988) Dr Blum carried out spinal exploration which revealed severe bulging of the right side of the L4-5 disc and that the L5 nerve root was severely compressed by the bulging disc. Dr Blum decompressed the right L5 nerve root into the canal.
The Appellant returned to work in late November 1988. He remained on light duties which were graduated over time and returned to his work as a Garbage Offsider in August 1989. The Appellant states that he had “never gained full fitness or capacity to do my old job. I always had pain and was restricted”.
The Appellant continued performing the same duties with respect to the Sutherland Shire’s garbage collection however his employment changed from that of the First Respondent to the Second Respondent on or about 29 January 1990 (this date, and not 26 January 1990 as stated by the Arbitrator in her Reasons, appears in exhibit A). The Appellant alleges that on 29 March 1990 he again suffered a back injury whilst performing his duties with the Second Respondent. Following that injury the Appellant was absent from work for one week following which he returned to his work as a Garbage Offsider. He remained performing those duties until the date of his retrenchment in March 1991.
The Appellant has not worked since March 1991. The Appellant’s Statement records his history from that time and it was alleged that he attempted to find suitable work following retrenchment and that he kept a “job search journal” with respect to such efforts. That journal was before the Arbitrator. The Appellant’s Statement records that he had the good fortune to win the “Soccer Pools” in December 1996. In his oral evidence before the Arbitrator (pages 15 and 20) the Appellant agreed that he had not looked for work since about the time that he won the substantial prize in the Pools. It was shortly after his win in the Pools that the Appellant moved to Queensland where he has since resided.
It was the Appellant’s allegation that, since the injury in 1987 and in particular since the surgery, he had never been “100%”. (See paragraph 26 of Statement dated 23 June 2004.) The histories taken by a number of the Medical Practitioners whose reports are in evidence record a gradual deterioration of the Appellant’s condition over time. The Appellant was referred back to Dr Blum in March 1995 (having last seen Dr Blum in 1989) at which time Dr Blum recorded that:
“There has been a great deal of deterioration in his back and his right leg function. There does not appear to be any provocative reason but gradually he is getting more pain in his back with some paraesthesae/paraesthesia and numbness in his foot. He has difficulty sitting down for any length of time and finds relief only when lying down on the floor.”
Medical opinion as to the Appellant’s capacity for work contained in the various reports which were before the Arbitrator may be summarised as follows:
(i)Dr DG Seaton, Specialist Surgeon, in his report of 13 September 1990 stated:
“I do not think that he will require further surgery if he is able to find light work in plumber’s supplies. He will never go back to heavy lifting and bending again. I say this with the knowledge that although he is still working as a Garbage Collector, he has been looked after by the Council, meaning that he is not lifting and bending.”
(ii)Professor Frederick Ehrlich, Specialist in Rehabilitation and Surgery, expressed the view in his report of 3 July 1992:
“He must be regarded as not suited for heavy work or any activities involving much stooping or lifting. Ideally a position which permits occasional periods of rest if the back becomes too uncomfortable or where at least there is opportunity for changing the posture from time to time, should be sought.”
(iii)Dr RG Smith, Specialist in Low Back Pain, in his report of 10 November 1994 was of the view that:
“He would be able to manage a wide range of duties provided heavy, repetitive or provocative lifting and prolonged or repetitive bending could be avoided and could change posture at reasonable intervals and at will.”
(iv)Dr Ian S Collins, Specialist Physician, in his report concerning his examinations in April 1993 and February 1997 was of the opinion that:
“He is fit only for extremely light work, not involving lifting and bending or carrying of heavy objects. For practical purposes, this means that he is unable to undertake his pre-accident job, or even light work for the Council, and he is unable to undertake his former occupation of plumbing. I believe that he will need to be re-educated into a clerical job or into sales.” (April 1993), and “In my opinion he is not fit for any manual work” (February 1997).
(v)Dr Blum in his report of 11 April 1995 noted:
“… He himself is unimpressed to have a repeat operation which is not unreasonable and as he has got no hard signs there is no major reason to do anything about it. In addition it is unlikely that it will be good enough for him to return to heavy work.”
(vi)In a report dated 30 June 1995 Dr Blum states:
“I last saw him in April when he was still considerably disabled. He is unable to return to heavy work and I suggested that he be rehabilitated by the Commonwealth Rehabilitation Service.”
(vii)Dr ALG Smith, Orthopaedic Surgeon, in his report of 27 March 1997 when reporting to the First Respondent’s Solicitors, Messrs Vardanega Roberts:
“I consider there is an impairment of the back being some 10% of a most extreme case, the cause of this is not readily apparent on the investigations to hand. It will restrict him to work which doesn’t involve any repetitive bending or heavy lifting or repetitive stooping. He is exaggerating to some extent the severity of his disability.”
(viii)Dr Graham Mahony, Orthopaedic Surgeon, in his report of 23 October 2003 expressed the view:
“I would consider it unlikely that his condition will improve and I would advise him to restrict his future activities to activities not involving significant bending or lifting.”
(ix)Dr Mastroianni, Consultant Occupational Physician, in his report of 16 March 2004 expressed the view that:
“He is restricted in work requiring constant bending and heavy lifting. He is best suited for work where he can change his posture from sitting to standing as necessary.”
(x)Dr Anthony Smith in a later report dated 13 November 2003 expressed the view:
“Essentially he has a condition that is not the result of his employment with the Sutherland Council or any other employer. It is a congenital genetic anomaly that will cause what appears to be a lumbar disc lesion.”
(xi)Dr Smith had earlier stated:
“I would have thought he would be fit to work on a fulltime basis provided he does not have to engage in occupations that are excessively heavy or repetitive with regard to bending and lifting.”
(xii)Dr K Wilding, Orthopaedic Surgeon, in his report of 1 October 1999 expressed the view:
“In my opinion he is fit for light work which does not involve prolonged stooping or bending or heavy lifting.”
(xiii)Dr Wilding’s view was not altered by his findings on examination in September 2004 recorded in his reports of 12 October 2004.
The subject of causation of the disc protrusion in respect of which the Appellant was treated and the subsequent incapacity is dealt with by the various Medical Practitioners whose reports were before the Arbitrator. Drs Blum, Seaton, Ehrlich, R Smith, Collins, Mahony and Wilding were of the view that the lifting incident of 28 December 1987 caused the protrusion, the need for surgery and the subsequent incapacity. Dr AGL Smith’s view has been noted above and Dr Mastroianni expressed the view:
“As a result of the injuries he does have continuing disabilities and incapacities.”
There was, before the Arbitrator a Schedule of Earnings which had originally been filed by the Appellant in proceedings commenced on his behalf in the former Workers Compensation Court of NSW (matter number 12846-02). That Schedule included details of alleged “actual earnings and comparable or likely earnings”. Also before the Arbitrator were extracts from wage records which relate allegedly to the earnings of the Appellant and others in comparable employment prior to the Appellant’s retrenchment. The Appellant also relied upon evidence contained in his tax returns annexed to his Application to Resolve a Dispute (stated as being from 1987 through to 2003).
A surveillance report prepared by Colgan & Associates Pty Limited dated 25 November 2003 addressed to the Solicitor for the Second Respondent was in evidence before the Arbitrator. That report contained written descriptions of activities with accompanying photographs with respect to observations of the Appellant which took place in late 2003.
The Appellant, following his Statement of Grounds of Appeal, includes what is described as “an overview of the Appellant’s claim and the Arbitrator’s decision” and a summary of that which the Appellant treats as “the salient features of the evidence”. Thereafter the Appellant, in twenty-nine enumerated paragraphs sets forth what are described as “submissions on appeal”. Those submissions address, in turn, the issues of “injury” and “incapacity”.
With respect to the subject of “injury” the Appellant challenges the Arbitrator’s findings “with respect to the claims against the First Respondent in its capacity as Self Insurer and against the Second Respondent”. (See paragraph 24 page 9 of the Application.)
The Appellant’s submissions with respect to the issue of “incapacity” raise a question as to the “necessity” for the Arbitrator to decide “the cause of the Appellant’s redundancy” (paragraphs 28 to 31 of the Application). The Appellant proceeds (in paragraphs 32 to 36) to assert that, on this appeal, “… it should be found that he [the Appellant] was totally incapacitated from the time of his redundancy”.
The Appellant proceeds (in paragraphs 37 to 53) to challenge the Arbitrator’s applications of sections 38, 38A and section 40 of the 1987 Act and her findings with respect to the operation of those sections upon the facts as found. Those submissions also include challenges to a number of identified factual findings which relate to the issue of “incapacity”.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of the aforementioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
As noted above the Appellant’s Application includes the enumeration of fourteen “Grounds of Appeal” following which there appears “an overview of the Appellant’s claim and the Arbitrator’s decision” (paragraphs 3 to 7), a statement of “the salient features of the evidence” (paragraphs 8 to 23) and thereafter appear “submissions on appeal” (paragraphs 24 to 53 inclusive). A summary of the orders sought by the Appellant on this appeal appear at paragraph 54 of those submissions. It is proposed to deal with the “grounds” as enumerated in the Appellant’s Application with reference to the submissions appearing in support of those grounds in the Appellant’s Application as well as the submissions of the Respondents’ representatives filed in opposition to the Appeal.
Grounds 1, 2 and 3
These grounds challenge the Arbitrator’s findings with respect to “injury”. The Arbitrator’s finding with respect to the issue of “injury” is to be found at paragraph 33 of her Reasons:
“33.The preponderance of the medical evidence before me is that the Applicant sustained a rupture of his L4/5 disc while lifting a bin at work on 28 December 1987 and that this injury led him to a laminectomy at the L4/5 level on 27 July 1988. I so find. At the time of the injury to his back on 28 December 1987 the Applicant was carrying out his duties as a Garbage Offsider for the First Respondent in the interests of Allianz Australia Workers Compensation (NSW) Limited (Allianz).”
The Appellant submits that the Arbitrator erred in finding that the Appellant was not injured as a result of the nature and conditions of his employment with either the First or Second Respondent. It is put that the Arbitrator’s findings are “unclear and uncertain”. It is further stated that the Arbitrator’s use of the phrase “substantial contributing factor” demonstrated error. It is further submitted that the Arbitrator “failed to take into account” evidence relating to the “worsening” of the Appellant’s condition during his period of employment up to the date of retrenchment in 1991.
The Appellant, in my view, correctly submits that the provisions of section 9A of the 1987 Act have no application to the present facts having regard to the Transitional Provisions of the 1987 Act in particular Schedule 6 Part 2 Clause 9. Whilst no express reference to section 9A of the 1987 Act appears at and before paragraph 42 of the Arbitrator’s Reasons, it appears, having regard to the language adopted by the Arbitrator, that such provision was in fact erroneously being applied to the question then being determined. It is to be noted that the Arbitrator made express reference to the provisions of section 9A(2) of the 1987 Act at paragraph 35 of her Reasons at which time the Arbitrator was dealing with the allegation of injury occurring on 28 December 1987.
Notwithstanding any error demonstrated with respect to the application of section 9A of the 1987 Act I am of the opinion that the Arbitrator’s conclusions of fact with respect to the issue of “injury” are not vitiated. The Arbitrator’s Reasons (paragraphs 27 to 29 inclusive) contain a thorough and detailed summary of the totality of the medical evidence which was before the Commission. In my view the Arbitrator’s conclusion noted at paragraph 33 of her Reasons is more than adequately supported by the medical evidence earlier summarised. Whilst the Arbitrator’s reasoning process is open to challenge by reason of the consideration of an irrelevant provision of the 1987 Act it is my view that the Arbitrator’s ultimate conclusion of fact is sound and further that her finding of injury occurring on 28 December 1987 should not be disturbed.
The Appellant’s submissions which challenge the Arbitrator’s findings of fact with respect to the balance of the Appellant’s allegations of injury against each of the Respondents in my view fail. Again, leaving aside any demonstrated error with respect to the application of section 9A of the 1987 Act, it is my view that the Arbitrator’s ultimate conclusion of fact with respect to there being no proof of injury other than as stated in paragraph 33 is in accordance with the evidence and the weight of the evidence and should not be disturbed. I conclude that the Appellant has failed to make out ground 1.
It is asserted by the Appellant in ground 2 that the Arbitrator erred in finding that the Appellant was not incapacitated as a result of an injury with the First Respondent after 1 October 1988. This is a misstatement of the Arbitrator’s findings and I note in particular the Arbitrator’s finding at paragraph 46 of her Reasons where it is stated:
“As I have stated above the Applicant has a continuing partial incapacity as a result of the injury sustained on 28 December 1987.”
Ground 2 must, in those circumstances, fail. (This ground, as stated above, is ambiguous. If it challenges failure to find “injury” with the First Respondent “after 1 October 1988” it fails for the reasons appearing in paragraph 43 above).
Having regard to my view as to the correctness of the Arbitrator’s conclusion of fact with respect to the issue of “injury” it follows that ground 3 must also fail.
With respect to these grounds the Appellant (at paragraph 27(f)) makes passing reference to the “disease” provisions of the 1987 Act. I am not persuaded that any error in a relevant sense has been demonstrated with respect to the matters raised, in particular so far as the evidence of Dr Mastroianni is concerned.
Ground 4
This ground purports to challenge the Arbitrator’s finding that “the Appellant was capable of managing his pre-injury duties between 7 August 1989 and March 1991”. That finding appears at paragraph 39 of the Arbitrator’s Reasons. Such finding does not go to the issue of “incapacity” and is a finding, in my view made by the Arbitrator in passing, which has no relevance to any question of entitlement to benefits as sought by the Appellant in his claim conducted before the Arbitrator. In short the stated “ground” does not constitute a basis to challenge the Arbitrator’s decision in any respect.
Grounds 5 and 6
It is asserted by the Appellant that “it was unnecessary for the Arbitrator to find the Applicant’s redundancy in March 1991 was unrelated to his injury” (ground 5) and “the Arbitrator erred in finding that the Appellant’s redundancy in March 1991 was unrelated to his injury” (ground 6). These subjects are addressed by the Arbitrator in her Reasons at paragraphs 37 and 38.
The Appellant, in suggesting that the finding relating to redundancy was “unnecessary”, appears to be challenging the relevance of such finding. The Arbitrator addressed the issue having regard to the history recorded by Dr A Smith in his report of 27 March 1997 referred to in paragraph 37 of her Reasons. A determination of that fact was, in my view, relevant to the proper analysis of the relationship between the Appellant and the Second Respondent during his employment and as at the date of redundancy and, more particularly, would be of particular relevance given a finding of partial incapacity and the Appellant’s reliance upon section 38 of the 1987 Act.
The Appellant’s assertion that the Arbitrator erred in concluding as she did with respect to the question of redundancy is not, in my view, made out. The Arbitrator in her Reasons has addressed the totality of the evidence and no error is demonstrated.
Ground 7
The Appellant submits that the Arbitrator erred “in finding that the Appellant was not totally incapacitated”. Paragraphs 32 to 36 inclusive of the Appellant’s submissions seek to address the subject of “total incapacity”.
The Appellant (at paragraph 33) correctly cites a number of decisions which address questions raised by the distinction between total and partial incapacity. The Arbitrator in her Reasons has concluded that the Appellant’s incapacity is “partial” and such conclusion of fact is supported by the evidence and I am not persuaded that the Appellant has established error on her part. Whilst Dr Mahony in his report of 23 October 2003 stated “I would not advise him to return to the workforce as it could cause a deterioration of his symptoms”, the balance of the medical evidence before the Arbitrator supports her conclusion as to partial incapacity and such conclusion should not be disturbed.
Grounds 8 and 9
The Appellant in these grounds asserts error on the part of the Arbitrator “in finding that the Appellant was not seeking suitable employment at any time since March 1991” and with respect to her conclusion “that the Appellant’s efforts at looking for suitable employment were not genuine”. Each of those findings were conclusions of fact which required determination by her having regard to the Appellant’s reliance upon section 38 of the 1987 Act. It is to be noted that the provisions of both section 38 and section 38A of the 1987 Act as at the date of the Appellant’s redundancy were in the form as prescribed by the Workers Compensation (Benefits) Amendment Act 1989 (‘the 1989 Act’). The operation of the 1987 Act is regulated by the provisions of Schedule 6.4.5A thereto. A consideration of the application of section 38(11)(b) of the 1987 Act to the evidence before the Arbitrator needed to be made. That subsection, at the date of the Appellant’s redundancy, provided:
“38(11)(b)A worker shall not be treated as seeking suitable employment for the purposes of this section if the worker –
(b)has not taken all reasonable steps to obtain suitable employment;”
The Appellant, at paragraph 22 of his Statement dated 23 June 2004, states that he had not worked since March 1991 and that since that date he had attempted to find work and “kept a Job Search Journal with respect to the work I tried to find”. That journal was included among the documents annexed to the Appellant’s Application to Resolve a Dispute. The Appellant was questioned in relation to those job applications by his Counsel and the Arbitrator and those matters are recorded at pages 18 and 19 of the transcript. Whilst it was not put directly to the Appellant that he was not seeking suitable employment since March 1991 nor was it directly put that he was not genuine in his efforts at looking for suitable employment it must be borne in mind that the Arbitrator had the benefit of assessing the Appellant’s evidence in the light of his response to questioning generally and had the benefit of perceiving his demeanour. Minds may differ as to what conclusion is to be drawn from such evidence however the Arbitrator’s findings with respect to these matters are essentially matters that go to the credit of the Appellant and in my view are not to be disturbed on this appeal.
The subject of review of findings as to credit was considered in Watson v Hanimex Colour Services Pty Limited (1991) 8 NSWCCR 190. In that matter the NSW Supreme Court, Court of Appeal was considering the scope of a “review” of a Commissioner’s finding in the context of the then section 36(1) of the Compensation Court Act 1984. His Honour the President noted (at page 208):
“Here, the Commissioner expressly stated that he did not believe the appellant’s history. There was nothing ‘subtle’ about that statement. Unless displaced by some incontrovertible evidence which showed that it was wholly mistaken (or some conflicting evidence which persuaded the Judge to a different conclusion) it made virtually impossible the attempt on the ‘review’ to get his Honour to substitute his opinion for that reached by the Commissioner, with the advantage which the latter had of seeing the Appellant.”
I am of the view that his Honour’s line of reasoning is applicable to the present facts and conclude that the matters raised in these grounds by the Appellant are not made out.
Grounds 10 and 11
It is stated by the Appellant that the Arbitrator “erred in the application of section 38” of the 1987 Act (ground 10) and further erred “in the application of section 38A” of the 1987 Act. These grounds are addressed in the Appellant’s submissions at paragraphs 37 to 42 inclusive.
It must be remembered that the Appellant’s claim pursuant to section 38 of the 1987 Act was said to commence as at the date of his retrenchment in March 1991. As noted above the provisions of section 38 and section 38A of the 1987 Act as at March 1991 were in the form as prescribed by the earlier mentioned amending Act of 1989. The Arbitrator in considering the application of section 38 and section 38A has erred in applying the provisions as they stood following amending Acts post dating 1991 which amendments did not have retrospective effect. The Appellant, in his submissions, has fallen into a similar error (in particular in relation to the Appellant’s submission at paragraph 38 where reference to section 38A(2)(d) of the 1987 Act is made). The legislative history of these sections is touched upon in submissions put on behalf of the First Respondent in the interests of Allianz Australia Workers Compensation (NSW) Limited.
The Appellant, in his submissions, makes further attack upon the Arbitrator’s conclusions with respect to section 38 by asserting that “there was no reasonable basis at all upon which the Arbitrator could make a finding that the Appellant was not taking reasonable steps to find suitable employment”. I have, to an extent dealt with this subject earlier in these reasons. The question as to whether the Appellant “has not taken all reasonable steps to obtain suitable employment” (section 38(11)(b) of the 1987 Act) concerns only an examination of facts as at the date of the claim under that section and any reference by the Arbitrator to the matters raised by the Appellant in submission 41 was irrelevant to the matters to be determined. (That is, the Appellant’s win in the Soccer Pools which occurred in 1996.) In that respect the Arbitrator was in error.
Notwithstanding the errors on the part of the Arbitrator in her approach to the matters requiring determination pursuant to section 38 of the 1987 Act I am of the view that the Arbitrator’s ultimate finding – “I find that the Applicant is not entitled to receive compensation pursuant to section 38 of the WCA during any period of partial incapacity.” – should not be disturbed. The requirements of section 38 of the 1987 Act as it was framed at the relevant time, namely 1991, stipulated matters required of the Appellant which were not the subject of any evidence before the Arbitrator. I refer in particular to the requirements of section 38(10) of the 1987 Act, as it then stood, which related to requests for employment, provision of medical certificates and evidence of readiness and willingness to take on suitable employment. In the absence of evidence of those matters it is clear that the Appellant failed, at the hearing, to make out a case of entitlement pursuant to section 38 and the Arbitrator’s finding in respect of such entitlement should, in my view, be confirmed. The Appellant’s arguments with respect to grounds 10 and 11 do not persuade me that the Arbitrator’s conclusion should be disturbed.
Ground 12
This ground challenges the Arbitrator’s finding of fact that the “Appellant was capable of undertaking work such as fulltime duties as a Car Park Attendant, Console Operator, or Service Station Attendant”. This is yet another challenge to a factual conclusion reached by the Arbitrator. The subject matter is addressed by the Arbitrator at paragraph 46 of her Reasons.
At paragraph 43 of his submissions the Appellant makes reference to particular medical evidence which, it is said, would support a conclusion that the Appellant was not in fact fit for fulltime work. The Arbitrator in stating her Reasons at paragraph 46 concluded the following statement:
“As stated above the preponderance of medical evidence states that the Applicant’s restrictions are limited to no heavy lifting and repetitive bending or stooping.”
Such evidence was before the Arbitrator and it is clear, in my opinion, that in adjudicating the dispute as to incapacity the Arbitrator has preferred medical opinion from which it was inferred that the Appellant was fit for fulltime employment. That medical opinion was summarised in paragraphs 27, 28 and 29 of the Arbitrator’s Reasons. Given the existence of evidence capable of supporting the Arbitrator’s conclusions I am of the opinion that her finding with respect to this issue of fitness for fulltime work should not be disturbed.
Ground 13
It is asserted by the Appellant that “it was not necessary for the Arbitrator to apply section 40 of the Workers Compensation Act 1987 in circumstances where the Arbitrator should have found that the Appellant was totally incapacitated”. This subject has been addressed earlier in these reasons at which time the Arbitrator’s conclusion of fact with respect to the Appellant’s partial incapacity was found to demonstrate no error in any relevant sense. Accordingly I find that the Appellant has failed to make out his argument for review under this stated ground.
Ground 14
This ground asserts that “the Arbitrator erred in the application of section 40 of the Workers Compensation Act 1987 and in the application of a discretion pursuant to section 40”. The Arbitrator addressed the subject matter of this ground in paragraphs 46 to 55 of her Reasons.
After reiterating her finding as to partial incapacity (in paragraph 46) the Arbitrator proceeded to summarise the steps to be taken by the decision maker in determining entitlement pursuant to section 40 (at paragraph 47 of her Reasons).
The first step is to determine in accordance with section 40(2)(a) the weekly amount which the worker would probably have been earning but for the injury. Given the fact that the Appellant’s claim dated from 1991 to the date of the hearing a proper approach to step (i) requires an assessment of probable earnings over the relevant period. The Arbitrator in paragraphs 49 and 50 of her Reasons noted the Appellant’s argument, which appears to be based upon the contents of the Wage Schedule which was before the Arbitrator, that the Appellant’s probable earnings “would be $650.04 per week which represents his pre-injury earnings indexed annually at 3% CPI”. The Arbitrator also noted the Respondents’ argument against such submission. The Arbitrator went on (paragraph 50) to state that she was satisfied “that had the Applicant’s job continued his earnings would have increased and I am satisfied that they would have increased at least in accordance with the CPI”. The Arbitrator noted that no “comparable earnings” had been placed before her and that:
“doing the best I can, I am satisfied that but for the injury the Applicant would have earnt in his pre-injury job or in some comparable employment the weekly sum of $650.04”.
It is not clear from the Arbitrator’s Reasons as to whether such finding is limited to the Appellant’s earning capacity at present or otherwise. Given the necessity to make a determination in relation to probable earnings over the relevant period I conclude that the Arbitrator, in omitting to address the period in question, was in error.
At paragraph 48 of her Reasons the Arbitrator made a finding as follows:
“An unskilled Car Park Attendant earns about $536 per week whereas a Shop Assistant earns about $500 per week. An unskilled Console Operator earns about $525 per week. The average of these is $520 per week.”
It may be inferred from the terms of paragraph 51 of the Arbitrator’s Reasons that the finding as to earnings quoted represents a finding as to the Appellant’s ability to earn as required by step (ii). The difficulty thrown up by the Arbitrator’s findings is that in purporting to comply with the requirements of step (ii) no attention has been given to the question as to probable earnings over the relevant period. Again it is unclear as to what relevance the finding of “the average of these is $520 per week” has to the period of the claim brought by the Appellant.
It is reasonable, in my view, to treat the Arbitrator’s findings in relation to quantification of probable earnings and ability to earn as representing only a finding as to the state of affairs as at the date of the hearing. The Wages Schedule which was before the Arbitrator contained a column of “comparable or likely earnings” which, as noted by the Arbitrator, had been indexed in accordance with the CPI.
The Arbitrator, at paragraph 52 of her Reasons proceeded to summarise the parties’ submissions in relation to the exercise of discretion pursuant to section 40(1) (that is, step (iv)). At paragraph 53 of her Reasons the Arbitrator reiterated her earlier finding that “the Applicant has not genuinely looked for suitable employment since he was made redundant from the Council in 1991”. The Arbitrator went on to state “that since he won the Soccer Pools he has also not looked for suitable employment as he is now living off his investments”. The Arbitrator went on to state as had been determined earlier “I am satisfied that the Applicant’s position at the Council was made redundant for reasons unrelated to his injury ….”. It was further stated by the Arbitrator “that he then voluntarily took himself out of the labour market and as such effectively retired from the workforce”. It was upon the basis of these considerations that the Arbitrator proceeded to express the view “that it is appropriate in all the circumstances of this particular case to exercise my discretion to reduce any entitlement to weekly compensation pursuant to section 40 of the WCA to nil”.
Leaving aside, at present, the question as to whether the matters considered by the Arbitrator were properly relevant to the exercise of the discretion addressed by step (iv), it appears the determination that the Appellant’s entitlement to section 40 was “nil” constitutes an error of law. The principles relevant to the present determination were addressed by the NSW Supreme Court, Court of Appeal in the matter of Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566 (‘Kesen’). The Court there was considering the provisions of the legislative predecessor of section 40 (namely section 11(1) of the Workers Compensation Act 1926). This authority was raised by the Appellant in oral submissions at the hearing. The Court in ‘Kesen’ addressed the correctness of a zero award pursuant to section 11(1) made by the Workers Compensation Court to a worker who was partially incapacitated but, during a relevant period, was absent from Australia caring for an ill relative. The Court, in a joint judgment, stated (at page 568):
“What seems to us to be the clearest error of law appearing in the passage from his reasons set out above is his assumption that a weekly payment of nothing is a weekly payment. The subsection requires that if partial incapacity is found a weekly payment is to be made. It must not exceed the figure found by step (iii) and it may be reduced below that figure to a figure which bears a proper relation to this step (iii) figure. Zero bears no relation to the step (iii) figure, or any real number.”
It is important to note that the reasoning of the Workers Compensation Court in the matter of ‘Kesen’ at first instance omitted the “step” requiring determination of a differential between probable earnings and ability to earn. That is not the case in this matter. The Arbitrator has addressed the requirements of that step. That being said it is plain from the Court’s decision in ‘Kesen’ that “if partial incapacity is to be found a weekly payment is to be made”.
The Arbitrator’s failure to address the question of probable earnings and ability to earn throughout the relevant period together with her conclusion that, in her discretion, the Appellant’s entitlement to weekly compensation pursuant to section 40 of the 1987 Act is nil constitute errors on her part which require either revocation and substitution with a new decision or alternatively that the matter be remitted for determination in accordance with the matters determined on this appeal. The NSW Supreme Court, Court of Appeal in the matter of Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344 considered the legislative intention behind section 352 of the 1998 Act and has expressed the view that should an appeal be upheld it is preferable, if possible, that the Presidential Member finally determine the matter (per Santow JA at paras. 28 and 29).
Having regard to all the circumstances I am of the view that it is desirable, and in conformity with the legislature’s intent, that the errors identified in this appeal are corrected without the need to remit the matter for further consideration by the Arbitrator.
With respect to step (i) I adopt the Arbitrator’s view that the Appellant’s probable earnings but for injury are, on the probabilities, reflected in the Wage Schedule filed on his behalf. My findings as to the quantum of the Appellant’s probable earnings over the relevant period are as follows:
·15 March 1991 to 30 June 1994 … $469 per week
·1 July 1994 to 30 June 1997 … $513 per week
·1 July 1997 to 30 June 2000 … $560 per week
·1 July 2000 to 30 June 2003 … $612 per week
·1 July 2003 to date … … $650 per week.
I confirm the Arbitrator’s findings with respect to the nature of work for which the Appellant remains fit found at paragraph 48 of her Reasons and in accordance with step (ii) I determine the weekly amounts that the Appellant was from time to time able to earn in suitable employment (section 40(2)(b)) as follows (in this regard I observe that the Arbitrator had no evidence of earnings of the occupations concerned and infer her reliance upon the Commission’s knowledge of such matters, and I note that no point is taken as to the figures per se):
·15 March 1991 to 30 June 1994 … $339 per week
·1 July 1994 to 30 June 1997 … $383 per week
·1 July 1997 to 30 June 2000 … $430 per week
·1 July 2000 to 30 June 2003 … $482 per week
·1 July 2003 to date … … $520 per week.
It may be seen from the figures set out above that there is a constant differential between the Appellant’s probable earnings but for injury and his ability to earn as determined in the sum of $130 per week.
It remains to be determined, in accordance with section 40(1), as to what amount, not exceeding the sum of $130 is a proper weekly payment of compensation in the circumstances of this case (step (iv)). The Arbitrator at paragraph 53 of her Reasons noted three specific matters which were taken into account when exercising her discretion pursuant to this provision. The Arbitrator’s findings that “I am satisfied that the Applicant has not genuinely looked for suitable employment since he was made redundant from the Council in 1991” and that “since he won the Soccer Pools he has also not looked for suitable employment as he is now living off his investments” were, as stated earlier, open on the evidence and in my view were relevant to the Appellant’s motivation to re-enter the workforce. I disagree with the Arbitrator that those matters which relate to lack of motivation to return to the workforce may properly be taken into account when the section 40(1) of the 1987 Act discretion is being addressed. As stated by the NSW Supreme Court, Court of Appeal in Mitchell v Central West Health Service [1997 NSWCCR 526 (at 534) “….self-induced diminution of earning capacity lies squarely within the exercise required to be carried out at what we have identified as the second stage. The matters to which Egan A-CCJ referred to go directly to the ‘worker’s ability to earn in the general labour market reasonably accessible to the worker’ and are therefore required (by section 40(3)(a)) to be taken into account in the section 40(2)(b) exercise. In consequence, there can be no justification for taking them into account in the additional discretionary phase.” The Arbitrator’s finding in relation to the Appellant’s redundancy being “unrelated to his injury” is not, in my view, a factor relevant to the exercise of that discretion.
In opposing this appeal the Respondents’ representatives sought to support the Arbitrator’s conclusion with respect to a “nil” entitlement under section 40. I have stated my reasons for rejecting such a conclusion as being an error. The representatives of the First Respondent (Insurer Allianz) at paragraph 32 of its submissions suggest a nominal “figure of say $5 per week”. That submission, in summary addresses the absence of motivation to return to the workforce discussed earlier in these reasons. The Second Respondent submits that a nominal sum of $1 per week should be awarded and cites ‘Kesen’ in support.
I am of the view that the Appellant’s effective withdrawal from the labour market, a fact which may not be surprising having regard to his serious back disability and his good fortune in winning the Soccer Pools, and his relocation to Queensland are not factors to be taken into account when considering exercise of the section 40(1) of the 1987 Act discretion. I note in passing that I do not consider the receipt of the financial windfall as a result of his Pools win nor the income generated from that capital amount are factors relevant to the exercise of such discretion.
In the circumstances of this case and in the exercise of my discretion I would determine that an appropriate weekly payment of compensation, which is proper in the circumstances of this case, is the sum of $130.
FINDINGS
The decision of the Arbitrator dated 15 February 2005 is revoked and in substituting my decision I make the following findings:
·The Arbitrator’s finding that “Phillip Dive’s probable weekly earnings, but for the injury, had he continued to be employed in the same or some comparable employment, are $650.04 per week” is in error. In its place a finding is made in the following terms:
“The Appellant’s probable earnings in terms of section 40(2)(a) of the 1987 Act are as follows:
Period Amount
15 March 1991 to 30 June 1994 $469 per week 1 July 1994 to 30 June 1997 $513 per week 1 July 1997 to 30 June 2000 $560 per week 1 July 2000 to 30 June 2003 $612 per week 1 July 2003 to date $650 per week.”
·The Arbitrator’s finding that “Phillip Dive’s average weekly amount he would be able to earn in some suitable employment from time to time after the injury is $518” is in error and in its place the following finding is made:
“The Appellant’s ability to earn in terms of section 40(2)(b) of the 1987 Act during relevant periods of this claim are as follows:
Period Amount
15 March 1991 to 30 June 1994 $339 per week 1 July 1994 to 30 June 1997 $383 per week 1 July 1997 to 30 June 2000 $430 per week 1 July 2000 to 30 June 2003 $482 per week 1 July 2003 to date $520 per week.”
·The Arbitrator’s finding that “Phillip Dive’s entitlement to weekly benefits is reduced to nil because he did not seek suitable employment and took himself out of the labour market and effectively retired from the workforce” is in error as is the Arbitrator’s finding that “Phillip Dive is therefore not entitled to weekly payments for any period of partial incapacity for work from 15 March 1991 to date and continuing”. In place of those findings the following finding is substituted:
“The arithmetic difference between the Appellant’s probable earnings but for injury and ability to earn throughout the period of the claim amounts to $130 per week. In the exercise of discretion pursuant to section 40(1) the Appellant’s entitlement to weekly compensation is the sum of $130 per week.”
DECISION
Consequential upon the findings set out above, I revoke the decision of the Arbitrator dated 15 February 2005 and substitute the following orders:
1)Award in favour of the Applicant (Phillip Dive) against the First Respondent (Sutherland Shire Council) pursuant to section 40 in the sum of $130 per week from 15 March 1991 to date and continuing. Allianz Australia Workers Compensation (NSW) Limited is to indemnify the First Respondent in respect of the award.
2)Award in favour of the Second Respondent (Linfox Australia Pty Ltd).
3)The First Respondent to pay the Applicant’s reasonable and necessary section 60 expenses on production of accounts and receipts. Allianz Australia Workers Compensation (NSW) Limited is to indemnify the First Respondent.
4)The First Respondent is to pay the Applicant’s costs as agreed or assessed. Allianz Australia Workers Compensation (NSW) Limited is to indemnify the First Respondent.
COSTS
The First Respondent is to pay the Appellant’s costs of this appeal. Allianz Australia Workers Compensation (NSW) Limited is to indemnify the First Respondent.
Kevin O’Grady
Acting Deputy President
31 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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