Doubleday Australia Pty Limited v Preston
[2010] NSWWCCPD 47
•4 May 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Doubleday Australia Pty Limited v Preston [2010] NSWWCCPD 47 | |||||
| APPELLANT: | Doubleday Australia Pty Limited | |||||
| RESPONDENT: | Janet Louise Preston | |||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-7807/09 | |||||
| ARBITRATOR: | Ms A Nicholl | |||||
| DATE OF ARBITRATOR’S DECISION: | 18 January 2010 | |||||
| DATE OF APPEAL DECISION: | 4 May 2010 | |||||
| SUBJECT MATTER OF DECISION: | Weekly payments; application of the principles in Aitkin v Goodyear Tyre & Rubber Co (Aust)Ltd (1945) 46 SR (NSW) 20. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Turks Legal | ||||
| Respondent: | Ellison Tillyard Callanan | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 18 January 2010 is confirmed. | |||||
| The Appellant is to pay the costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
The Respondent, Ms Janet Louise Preston, commenced employment with the Appellant, Doubleday Australia Pty Limited, on 21 May 1997. She was employed as a store person principally involved in packing books. She worked for 27.5 hours per week.
In about September 2001 she was asked to perform additional duties as a consequence of which she developed bilateral carpal tunnel syndrome and injured her back. After a period off work she resumed on selected duties until she accepted a voluntary redundancy in February 2004. Thereafter she looked for suitable employment and eventually obtained part time work in September 2005 as a Court Hire Manager at the Lane Cove West Tennis Club.
Liability was initially accepted by the Appellant’s insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’), and payments were made until March 2005.
In earlier proceedings between the parties before the Commission, WCC 3746/07, Consent Orders were issued wherein the Appellant agreed to pay Ms Preston weekly payments pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) at various rates from 15 March 2005 to 30 June 2007 and thereafter on a voluntary basis at the rate of $250.00 per week. The parties also signed a Complying Agreement by which the Appellant agreed to pay Ms Preston lump sum compensation pursuant to section 66 of the 1987 Act for 10% Whole Person Impairment (WPI) in respect of both upper extremities and the lumbar spine considered together. Ms Preston also received compensation for pain and suffering pursuant to section 67 of the 1987 Act.
On 3 July 2009 the Appellant issued a section 54 Notice wherein further liability was declined on the basis that Ms Preston could earn more than what she was then earning with her current employer. The Notice accepted her probable earnings but for injury were $525.80 per week but stated that she had a capacity to earn of $550.00 per week (based on a calculation of $20.00 per hour at 27.5 hours per week). Payments ceased on 13 August 2009.
By an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 25 September 2009, Ms Preston sought weekly benefits from 14 August 2009. She agreed that her probable earnings were $525.80 per week. Her actual earnings were noted as $92.30 per week.
The parties attended a conciliation/arbitration hearing on 8 December 2009. Ms Preston gave oral evidence and that, together with the parties’ submissions, is recorded in a transcript of that date.
In a reserved decision delivered on 18 January 2010, the Arbitrator found in favour of Ms Preston.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 18 January 2010 with an accompanying ‘Statement of Reasons’ (‘Reasons’) records the Arbitrator’s orders as follows:
“Orders
1.The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 40 of the 1987 Act at the rate of $389.10 per week from 14 August 2009 to 30 September 2009 and at the rate of $396.10 per week from 1 October 2009 to date and continuing. Such payments are to continue in accordance with the Act.
2.The Respondent is to pay the Applicant’s costs as agreed or assessed.
Certification
1.For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2003 I certify this matter as complex with 10% increase in the costs otherwise available to both parties.”
It is from this decision that the Appellant seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
THE ISSUES IN DISPUTE
The grounds of appeal are not entirely clear. The Appellant at the outset submits that the Arbitrator erred in four respects as follows:
“1. In placing weight or undue weight on the Respondent’s medical evidence;
2. In failing to consider whether the Respondent’s medical evidence ought to have been admitted into evidence and accepted;
3. In rejecting the medical evidence adduced by the Appellant;
4. In failing to provide adequate reasons for the rejection of the Respondent’s
[sic-?] medical evidence.”
Later in the appeal, the Appellant adds that the Arbitrator erred in allowing oral evidence to be given, and “in her application of the test under section 40.”
As the Arbitrator noted at [2] of her Reasons, the Appellant did not dispute injury. As she put it, the issue for determination was limited to: “What is the extent of the Applicant’s ongoing partial incapacity for work since 14 August 2009 and what is her entitlement, if any, to weekly benefits compensation?”
The thrust of the Appellant’s argument both before the Arbitrator and on appeal is that the weight of evidence was to the effect that Ms Preston was capable of working at least 27.5 hours per week, significantly more than the average 9 hours per week she has been doing with the tennis club. Neither party disputed either the actual or probable earnings.
Ms Preston submits that, in line with the principles established in Aitkin v Goodyear Tyre &Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (‘Aitkin’) and Pira Pty Ltd v Tucker [1996] NSWSC 569; (1996) 14 NSWCCR 26 (‘Pira’), her actual earnings were a proper reflection of her ability to earn, and that the Arbitrator’s acceptance of these principles was correct.
THE EVIDENCE
Ms Preston’s Evidence
Much of the medical evidence in Ms Preston’s Application was by way of background to her claim, setting out the nature and extent of her injuries. Since there was no issue as to injury, I do not propose to set out the contents of those reports.
In a statement dated 1 April 2007, Ms Preston said that her only prior work experience was as a travel agent “about 22 years ago.” She said that after she accepted redundancy, she looked for work in an office “as a Girl Friday where I would be doing a variety of things. I did not want to look for computer work as after an hour or so at the computer I found my arm and back were in agony.” She however accepted CGU’s offer to attend a six-week part-time basic computer course but said that it “nearly killed me because of the prolonged sitting and prolonged use of the arm.” She said that thereafter she looked for work in the newspapers but could not undertake physical work and that “just about everything else involves computers.” She said that she still had significant pain and restriction of movement in her arms and back, that she had difficulty sitting for any length of time, driving, sleeping, and performing many domestic and personal tasks such as peeling vegetables, and doing up her bra straps.
In a supplementary statement dated 12 September 2009, Ms Preston said that her symptoms she described in her earlier statement had persisted and not improved, and caused her “significant psychological distress, stress and depression.” She said that she continued to look for employment, and had recently attended a childcare centre enquiring about “office work.” She said that she was not suited to “typing or computer work.” She added: “At no time have I tried to work less than my full capacity, and at no time have I tried to minimise my earnings in employment.”
A number of certificates from Ms Preston’s treating general practitioner, Dr Sabrina Saldanha, were included in her Application. Earlier certificates in 2006 and 2007 had certified her unfit for work.
In a certificate dated 28 May 2009, Dr Saldanha said:
“Fit for suitable duties. Pre-injury duties of 27.5 hrs a week. No heavy lifting or repetitive movements. Is able to work from home as necessary. Travel restriction due to back pain. She is able to travel to and from work up to half an hour each way. 28/5/09 to 28/9/09.”
In a subsequent certificate dated 25 August 2009, Dr Saldanha said:
“Fit for suitable duties. Every second day 3 hrs hence 9 hrs a week. Can’t do any more due to painful left wrist and painful lower back. No heavy lifting or repetitive movements. Is able to work from home as necessary. Travel restriction due to back pain. She is able to travel to and from work up to half an hour each way. 25/8/09 to 25/11/09.”
Ms Preston’s counsel was granted leave to ask Ms Preston questions about those two certificates from Dr Saldanha. Ms Preston said that Dr Saldanha brought her attention to the certificate of 28 May 2009 and said that she had been contacted by somebody and “they had asked her to put, to write that…” [T6]. She added at [T9] that she had remonstrated with Dr Saldanha about that certificate. She confirmed that she discussed the certificate of 25 August 2009 with Dr Saldanha during her consultation at that time.
Under cross examination, she agreed that she had not mentioned in her statement that she had “remonstrated” with her doctor over the May 2009 certificate [T10]. At [T11] she was asked whether she was confining herself to only looking for work for 9 hours per week. At [T12], when asked if she could work more than 9 hours per week, she replied: “Well, I think that’s about my capability. That’s why I chose that job when I did.”
At [T13] she was asked about her assessment with Work Options. She said that she was unaware that her doctor had certified her fit for 27.5 hours per week until she read the report.
The Appellant’s Evidence
The Appellant arranged for Ms Preston to be examined by Dr Lewis Pierides, consultant occupational physician, on 4 August 2008. In a report dated 7 August 2008, he noted that Ms Preston was currently 55 years, old, had left school at age 17, then worked as a travel agent for 13 years before ceasing work to have her three children. He also noted that, in addition to her arm and back problems, she had “a separate right foot problem which began at the beginning of this year” which he regarded as incapacitating. He noted that Ms Preston was unable to state the exact number of hours per week she worked at the tennis club, “but in the end it was agreed that it was somewhere between four and eight hours per week.”
Dr Pierides also noted that Ms Preston suffered from psoriasis and psoriatic arthritis. He does not appear to have been aware of the parties’ agreement as to the nature and extent of her injuries. He concluded:
“She will not be able to return to her pre-injury duties. …
It is my opinion that she would only be suitable for sedentary work with an ability to change her posture as required. She has very few computer skills and she would need some upskilling in order to perform more hours than she is currently performing in her job with the tennis club…
I spoke at length with Dr Saldanha. I asked her to alter the certificate to reflect the hours that Ms Preston was currently working…”
In a subsequent report dated 28 August 2008, Dr Pierides noted that “the only injuries related to work are Ms Preston’s low back injury and bilateral carpal tunnel syndrome.” He then concluded that, as a consequence of these injuries, “she would be able to work four hours a day in a position that allows her to change her posture regularly.” He also placed restrictions on her ability to bend, lift and grip.
In his next report dated 11 November 2008, Dr Pierides concluded that Ms Preston was fit to work “full hours” in her present position at the tennis club since her role was “basically clerical.” He added in answer to a question from CGU that Ms Preston “could probably work full-time hours in an office role.” In answer to the question: “When would Janet Preston be able to increase her hours?” he said: “She could work full hours now.”
In a report dated 14 November 2008 again addressed to CGU, Dr Pierides said:
“I note you wish me to speak to Dr Sabrina Saldanha and discuss Ms Preston’s fitness for work.
My previous supplementary report indicated that Ms Preston was, in my opinion, fit for full hours of suitable duties either in her current role arranging tennis court hire or as a full-time clerical worker.
With this in mind I telephoned Dr Saldanha. I advised that… Ms Preston could work full-time suitable duties. Dr Saldanha had no objection to this and was happy to issue a full-time suitable duties certificate when she next reviews Ms Preston.
Dr Saldanha was of the opinion that Ms Preston could work full-time suitable duties with the restrictions.”
A report by Mr Wong, a rehabilitation consultant at an organisation called Work Options, dated 18 February 2009 concluded that Ms Preston was fit to work 27.5 hours per week either as an administrative assistant or receptionist earning an average of $20.00 per hour. In a subsequent report dated 9 June 2009, Mr Wong prepared a “labour market analysis report” setting out details of salary and job availability for pickers and packers, Ms Preston’s pre-injury occupation. The purpose of this report is not clear.
The Appellant had also included in its Reply a series of faxes from Mr Wong to Dr Saldanha. These were the subject of much discussion at the arbitration and indeed on appeal. The first is dated 23 December 2008. Dr Saldanha was asked to ‘circle’ specific responses to certain questions and apparently sign and return the fax. It is not signed. The claimed ‘responses’ were that Ms Preston was fit for 20 hours work per week with restrictions on lifting and travelling.
A second fax sent on 8 January 2009 was in similar terms and provided space for “comments.” A number of handwritten responses are included but the fax is again unsigned. It purported to state that Ms Preston was fit for 27.5 hours work per week as a travel agent, receptionist or administrative assistant.
A third fax also dated 23 December 2008 appears to have been signed by Dr Saldanha on 3 February 2009. It stated that Ms Preston was fit for suitable duties, that her pre-injury hours of work were 27.5 per week, and that she had a lifting restriction of 5 kgs, could walk for 10 minutes, could stand for 30 minutes, sit for 1 hour, travel for 1 hour, and could perform “keying” for 30 minutes. It concluded that she was fit for the roles of travel agent, receptionist or administrative assistant for 27.5 hours per week.
THE ARBITRATOR’S FINDINGS AND REASONS
After setting out the background to the claim, and all the evidence before her, the Arbitrator turned to consider the issue of incapacity. At [10-12] of her Reasons, she set out the evidence and submissions by the Appellant. These may be summarised as follows:
· Ms Preston retained a significant residual earning capacity, despite her injuries.
· She was capable of working 27.5 hours per week in suitable employment and, based on the Work Options reports, was able to earn at least $550.00 per week, in excess of her pre-injury earnings.
· Dr Saldanha certified her fit to work for 27.5 hours per week in May 2009 then inexplicably changed her certification in August 2009 to 9 hours per week.
· The later certificate was not “reliable” and the earlier one was consistent with other evidence, particularly Dr Pierides.
· Reliance was placed on the Work Options reports and the faxes sent to Dr Saldanha by Mr Wong. Work Options had consulted both Dr Saldanha and Dr Pierides. Work Options’ conclusion that Ms Preston was fit to work 27.5 hours per week in suitable employment was consistent with the opinions of Dr Saldanha and Dr Pierides.
· If the Arbitrator rejected the submission that Dr Saldanha’s certificate of August 2009 should be disregarded, then her earlier certificate should equally be found to be unreliable such that Ms Preston would be left with no medical evidence in support of her claim.
· The Arbitrator should reject the principles in Aitkin because the evidence as a whole suggests her present actual earnings do not reflect the true extent of her ability to earn.
At [13-14] the Arbitrator considered the evidence and submissions by Ms Preston, summarised as follows:
·Ms Preston has a 10% WPI as a consequence of her work injuries.
·She has significant restrictions and limitations as a result.
·She had attempted to her credit to find suitable work within her restrictions.
·Her evidence was that 9 hours per week was about the full extent of her capacity.
·In line with Aitkin and Pira and other recent Commission decisions, in the absence of evidence to the contrary, her actual earnings are a proper reflection of her ability to earn.
·There was no evidence of an intention or conduct on the part of Ms Preston to deliberately take lower paid work than could reasonably be expected to be obtained.
·Dr Saldanha clearly confirms that as at August 2009, Ms Preston’s capacity for work was 9 hours per week. Although conceding that there was no explanation from Dr Saldanha herself for the change in her certification, Ms Preston’s oral evidence should be accepted.
·The faxes between Work Options and Dr Saldanha were inconsistent with each other, confusing and ultimately unreliable.
·The “general flavour” of Dr Pierides’ first report in August 2008 was to the effect that Ms Preston was doing as much work as she could.
·There was no explanation by Dr Pierides for the change in his opinion in his November 2008 report, nor did he specify what sort of office role Ms Preston might be expected to undertake.
Relevant findings by the Arbitrator were as follows:
“18. The medical evidence before me regarding the Applicant’s limitations and
restrictions resulting from the work injury in 2001 is not extensive…. by 28 May 2009 Dr Saldanha was certifying the Applicant fit for suitable duties, being ‘pre-injury’ duties’ of 27.5 hours per week with specific restrictions. Those included no heavy lifting or repetitive movement, the ability to work from home as necessary, and travel restrictions of up to half an hour each way to work. In my view Dr Saldanha’s reference to ‘pre-injury duties’ refers in substance to the number of hours, as it is clear she considers the Applicant can only undertake suitable duties with quite substantial restrictions. Those duties are not her full pre-injury duties. The Respondent relies heavily on that certification for its submission that the Applicant is capable of working 27.5 hours on suitable duties.
19. However on 25 August 2009 Dr Saldanha issued a certificate indicating the
Applicant was fit for suitable duties for only 9 hours per week, being 3 hours every second day. She comments the Applicant cannot do any more due to painful left wrist and painful lower back. She certified that such work should be subject to the previous restrictions of lifting, movements and travel. I am mindful that this certification follows closely on the Insurer’s section 54 Notice of July 2009 by which payments were ceased. However that fact is of limited significance. The Respondent/Insurer decided to reassess the Applicant’s circumstances and capacity to work/earn against the background of its agreement in July 2007 to pay weekly compensation at the rate of $250.00 per week on a voluntary basis. It was clearly entitled to conduct that reassessment, which appears to have been initiated in early 2008 given the date of the first report from Work Options. However the Applicant was similarly entitled to have her nominated treating doctor re-assess her current circumstances regarding incapacity, and that is what appears to have occurred. I note the Applicant’s frank oral evidence to the effect that having received the letter from the Insurer she went to discuss the matter with Dr Saldanha. While an explanation from Dr Saldanha may have been of some assistance, I consider it reasonable that I accept at face value her certification of 25 August 2009 to the effect that in her medical opinion the Applicant was then (and until at least the review on 25 November 2009), fit for suitable duties only 9 hours per week. In that regard I note Dr Saldanha offers some explanation, albeit brief, with her comment that the Applicant cannot due any more than the 9 hours due to her painful left wrist and lower back.
20.I have considered carefully the exchange of faxes between Work Options and Dr Saldanha of December 2008 and January 2009 regarding the Applicant’s work capacity. In my opinion there are significant problems with the faxes… While I see no particular relevance in the fact the faxes were sent just before and after the Christmas period, I accept the submissions for the Applicant that the faxes are at least confusing, are inconsistent and are ultimately unreliable.”
The Arbitrator then set out in some detail her reasons for determining the unreliability of the faxes, in much the same terms as I have already noted. She then considered the evidence of Dr Pierides before concluding at [23]:
“23.In my view Dr Pierides does not fully explain the shift in his opinion that the Applicant could only work 9 hours per week as at August 2008 but could work on a full-time basis by November 2008. While it is apparent that in August 2008 Dr Pierides placed some weight on the incapacitating effects of the non work-related pain in her right foot, his opinion as at November 2008 that the Applicant could work on a full-time basis represents a major shift that is not sufficiently explained. Moreover while Dr Pierides accepts the fact of work-related injuries to both the Applicant’s arms and her lumbar spine, there is no indication in his reports that he was aware of the agreement between the parties that the Applicant suffers 10% WPI as a result of those injuries. To that extent I consider his comments on the Applicant’s incapacity are not based on all the relevant evidence.”
The Arbitrator then turned to the Work Options reports, noting at [24]:
“24. That report and conclusions proceed on the basis of 2 reports of Dr Pierides and a
WorkCover certificate from Dr Saldanha of 19 November 2008 which is not before me but is said to certify the Applicant as fit for 27.5 hours per week. I accept that at the time of its report Work Options had such a certificate before it, but as indicated above I have accepted as accurate and reliable the most recent certification by Dr Saldanha of 25 August 2009 certifying the Applicant fit for only 9 hours per week. Moreover in reaching its conclusions Work Options refers to its having liaised with Dr Saldanha and having obtained her approval for the suitable vocational options. At page 2-3 the report states that Work Options was unable to speak directly with Dr Saldanha but on 23 December 2008 forwarded to her a medical questionnaire regarding the Applicant’s long term prognosis. It is noted that on 3 February 2009 Dr Saldanha forwarded her medical opinion indicating the Applicant was ‘fit for pre-injury duties’ but with specific restrictions. The report confirms there was no further discussion with Dr Saldanha. These comments refer to the exchange of faxes in January 2009 discussed above. For the reasons already indicated I have preferred Dr Saldanha’s subsequent WorkCover certification of August 2009 to any indication by her in February 2009 through that exchange of faxes which I have found unreliable.
25. For the Applicant it was submitted that the suggestion by Work Options she could work as an Administrative Assistant fails to take into account the extent of her limitations. It was suggested such a role generally involves repetitive use of the hands/arms in typing and sitting for prolonged periods.”
At [27-28] she considered Ms Preston’s evidence both in her statements and her oral evidence. She concluded:
“28.She states that at no time has she tried to work less than her full capacity and at no time has she tried to minimise her earnings in employment. In cross examination the Applicant clarified that although she was not specific in her supplementary statement she only looked for work for 9 hours per week because that was the later certification from Dr Saldanha. She confirmed that she considers 9 hours per week remains the extent of her capacity for work. I found the Applicant to be a forthright and credible witness in her oral evidence.”
After discussing a number of authorities to which I have referred, the Arbitrator concluded that the principles in Aitkin have not been disturbed in the intervening years and remain “good law.” At [32-33] she concluded:
“32. I accept that the principles set out in Aitkin and applied more recently by this Commission also apply in the present circumstances. I am satisfied that the Applicant’s actual earnings should be taken to be a proper test of the Applicant’s ability to earn and therefore the correct figure for the purposes of section 40(2)(b), being Step 2 of the Mitchell test. I am not persuaded on the evidence or the submissions for the Respondent that the Applicant has deliberately taking lower paid work than she could get, or that she is ‘idling’ and as a consequence receiving less than she could be reasonably expected to obtain. Nor am I satisfied on the evidence that the Applicant’s actual earnings have been reduced by factors unconnected with her injury or capacity to earn. Rather I am satisfied on the evidence that the Applicant is currently working to the full extent of her capacity to earn in the labour market reasonably available to her. That conclusion is consistent with the most recent medical evidence from Dr Saldanha as I have accepted it. I also accept the Applicant’s own evidence that she is currently working to the full extent of her capacity doing 9 hours per week at the Tennis Club.
33.As a consequence it is not necessary for me to determine what the Applicant would be able to earn in some suitable employment, being ‘the other alternative’ referred to in Aitkin and still the alternative approach provided by section 40(2)(b) of the 1987 Act. At hearing the Respondent did not dispute that the Applicant’s actual earnings are $92.30 per week and I therefore accept that amount as the correct amount for the purposes of section 40(2)(b) of the 1987 Act.”
THE SUBMISSIONS AND DISCUSSION
Most of the Appellant’s submissions do not address the issues raised on appeal, but merely repeat many of the submissions made before the Arbitrator. In short, the Appellant submits:
“The Arbitrator therefore had, on the balance of the medical evidence, a clearly defined position from a variety of unopposed sources, a capacity for the Respondent to complete 27.5 hours per week of suitable duties.”
I am not persuaded that the four nominated grounds of appeal have been made out. The Arbitrator gave clear and detailed reasons for her acceptance or rejection of the evidence. No submissions are made as to why it is claimed that the Arbitrator erred “in failing to consider whether the respondent’s medical evidence ought to have been admitted…” Ms Preston’s medical evidence was fully set out in her Application, and no objection was made to it.
I do accept that there are some minor flaws in the Arbitrator’s Reasons. As the Appellant rightly points out, Dr Pierides, in his first report of 7 August 2008 did not in fact record that Ms Preston “ could only work for about 9 hours per week” as stated by the Arbitrator at [23] of her Reasons. Having said that, he acknowledged that Ms Preston was working between 4 and 8 hours per week and that she was only suited to sedentary work where she could change her posture as required. He also acknowledged that Ms Preston had very few computer skills and would need “upskilling” to increase her hours of work. Ms Preston gave clear evidence of her inability to perform computer work for any significant period of time. In addition, Dr Saldanha thought she was restricted to 30 minutes of “keying.”
In the absence of an ability to “upskill” or to perform computer work for more than 30 minutes, it is difficult to see on what basis she could increase her hours. In those circumstances, the proper inference to be drawn from Dr Pierides’ report is that her current hours were appropriate for her level of disability.
I agree with the Arbitrator’s findings that there is no clear explanation as to why Dr Pierides changed his view by November 2008. It is noted that this was done without any further consultation with Ms Preston.
I am also not persuaded that a proper reading of the certificate of Dr Saldanha of 28 May 2008 supports the Appellant’s contention that Dr Saldanha certified Ms Preston fit to work for 27.5 hours per week. The certificate is clearly referring to Ms Preston’s pre-injury duties at 27.5 hours per week. Those duties involved heavy lifting and repetitive movements for which she has been certified unfit in the same certificate. It is inconsistent with those restrictions that Dr Saldanha would certify her fit for pre-injury duties. To my mind, the certificate merely records Ms Preston’s pre-injury hours of work. As Ms Preston points out:
“The information contained in Dr Saldanha’s certificate of 28 May 2009 follows the order of information requested in the fax dated 3 February 2009: firstly, whether the worker was fit for suitable duties with restrictions (or fit for pre-injury duties without restrictions): secondly, whether the worker’s pre-injury hours were 27.5 or 30: and thirdly the likely restrictions on the worker’s duties.
If the certificate is so interpreted, there had been no change between May 2009 and August 2009 in the number of hours for which Dr Saldanha certified the worker fit to work.”
In my view, the Arbitrator’s analysis of the medical evidence was sound and well reasoned, and her acceptance of Dr Saldanha’s certificate of 25 August 2009 was appropriate having regard to all the circumstances she identified at [19] of her Reasons.
The Appellant’s submissions, both before the Arbitrator and on appeal, focus entirely on Ms Preston’s ability to earn and particularly the number of hours that she has been able to work. But as the Arbitrator rightly concluded, that was not the proper basis for assessment of earning capacity in the circumstances of this particular case. Aitkin and Pira are clear authority for the principle, as Ms Preston succinctly described it in her submissions that:
“The quantification of entitlement to weekly compensation for partial incapacity is to be made by reference to a worker’s actual earnings in suitable employment where a worker is so employed (unless the worker is deliberately depressing such earnings) and that the quantification of entitlement to weekly compensation for partial incapacity was not to involve an assessment of ‘ability to earn’ where the worker was so employed.”
Similar issues were considered by Roche DP in Regalado v Austdac Pty Limited [2007] NSWWCCPD 98 and by me in Ledingham v The Glen Cotton Company Pty Limited [2009] NSWWCCPD 15 (‘Ledingham’).
When a worker is employed, his or her actual earnings will be prima facie evidence of ability to earn. As the Court of Appeal said in Aitkin:
“As to the phrase ‘is earning’, it has been held that if the partially incapacitated worker is earning something, his actual earnings must prima facie be taken as the basis and the rate of compensation provided by section 9 reduced by the calculation based on the excess of his pre-injury average weekly earnings above what he is actually earning: Blackmore v Delta Mill Ltd [1919] 28 B. W. C. C. 193. If, however, it is proved that his actual earnings are not a proper test, because there is some reason unconnected with his earning power which makes them lower than they should be, the other alternative, ‘what he is able to earn’, must be adopted. This is so where it is shown that he is deliberately taking lower-paid work than he could get or is idling and on this account receiving less than he could be reasonably be expected to obtain, or where his actual earnings have been compulsorily reduced by something unconnected with his injury or general earning power.”
In Pira the Court of Appeal unanimously held:
“The appropriate amount to be applied under section 40(2)(b) in determining the rate of compensation to be awarded under section 40 is, prima facie, the person’s actual earnings after injury unless it is proved that the worker’s actual earnings are not a proper test, because there is some reason unconnected with the worker’s earning power which made them lower than they should be.”
It is perhaps appropriate at this point to consider the Appellant’s complaint that the Arbitrator erred “ in her application of the test under section 40.” In the Appellant’s submission, the Arbitrator simply “assumed” that since Ms Preston was working, this alone dictated the prima facie test for capacity, but the Arbitrator “failed to have regard as to whether such earnings were ‘proper’ in the circumstances.”
The Appellant makes reference in this context to Ms Preston’s non-work-related medical conditions and to her “psychological condition” particularly her statements to the effect that she was depressed and stressed for which she took medication. The Appellant submits that the Arbitrator made only “cursory remarks” on this issue and concludes that the terms of section 40(2)(b) should be interpreted as follows:
“It is submitted that the phrase ‘would be able to earn’ in this context is firstly a medical question with a correlation to factors such as age, experience, education and proximity to places of employment to name some of the issues. Such matters were the subject of analysis by Work Options, relying on Drs Pierides and Saldanha. The Arbitrator has ignored such evidence, erroneously, and has not explained why. The error ought be rectified by acceptance that the Respondent was capable of 27.5 hours per week in suitable duties and would therefore suffer no economic loss, given the evidence of Work Options.”
This submission is misconceived, and fails to address the terms of section 40 of the 1987 Act, and the authorities to which I have referred. The Appellant has simply ignored the words “is earning” in section 40(2)(b) again focussing on the question of ability to earn.
The Appellant’s complaint seems to be that the Arbitrator failed to find that Ms Preston’s earnings were not a proper reflection of her ability to earn. The Arbitrator dealt with the issue of Ms Preston’s psychological condition in some detail at [29] of her Reasons. She noted that no claim was made for any work-related psychological injury as a consequence of her physical injuries, adding:
“She has not claimed any contribution by any such psychological injury to her present incapacity for work.”
The Appellant’s submission on this point again ignores the principles set out in Aitkin. It seems clear to me that the Arbitrator was required to and did in fact consider all relevant matters in coming to her decision set out at [32] and reproduced above, namely that Ms Preston was not idling, was not deliberately taking lower paid work, and that her actual earnings had not been reduced by reasons unconnected with her injuries. That finding was consistent with the evidence.
In my view, Ms Preston’s actual earnings during the relevant period were in general, a proper test of her ability to earn, in the absence of any proof to the contrary. There was no evidence that Ms Preston was idling or deliberately taking lower paid work. There was ample evidence from Ms Preston, Dr Saldanha, and to some extent Dr Pierides (in his first report) that Ms Preston was working to the full extent of her capacity.
In those circumstances, the Arbitrator’s decision and consequent award was correct.
The Appellant’s final ground of appeal is that relating to the oral evidence. The Appellant submits that it was “improper” to allow oral evidence which the Appellant submits “was self-serving and not possible for purposeful cross examination…”
Commission Arbitrators have a fairly broad discretion in the conduct of an arbitration hearing. Arbitrators must have regard to the objectives of the Commission (section 367 of the 1988 Act) and follow the Guideline for the Practice of the Conciliation/Arbitration Process issued in January 2009. Leave must be given to adduce oral evidence, and an Arbitrator’s task is to determine if such evidence will assist in the decision-making process, having regard to the principles of procedural fairness.
In the present case, Ms Preston’s counsel sought leave to call her to give evidence in relation to the two medical certificates of Dr Saldanha which were a significant issue in dispute between the parties. Ms Preston was present when the certificates were completed. The Arbitrator considered this request [T4] and the Appellant’s objection to it [T5]. Her reasons for permitting limited evidence and cross examination are set out at [T5]. She noted that there had been some discussion in relation to those certificates at the teleconference. She added:
“Maybe we all missed it but what’s important is the Applicant from my notes while she certainly drew attention to that fact but that was more of a factual reality, a shifting in the certifications and, of course, the second certification postdates the denial.
So basically I think the Applicant in all fairness should be given that opportunity to respond so long as that question is narrow and, [Counsel for the Appellant] if you want some opportunity to cross-examine despite the problems you anticipate, that of course always depends on what’s actually said and whether you can deal with it on the day. If in the end there is something else that you think needs to be done, that’s a matter for some application…”
Ms Preston’s evidence was brief and in my view could not have caused the Appellant any prejudice. She merely described being present when the certificates were completed, discussing them, remonstrating with Dr Saldanha about the May 2009 certificate, and stating that “someone” had contacted Dr Saldanha in relation to that certificate. The Appellant was given an opportunity to cross examine Ms Preston, but did not elect to ask any questions about the consultation and certification in August 2009. In any event, it seems clear that this evidence was of little weight. The Arbitrator made no reference to it in her Reasons. She merely noted at [28] Ms Preston’s evidence under cross examination that 9 hours per week was the extent of her capacity.
In all these circumstances, I am not persuaded that there was any error by the Arbitrator in her conduct of the hearing, and that her decision to allow oral evidence was appropriate and clearly explained.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249) I have concluded that the Arbitrator’s decision was correct, and in line with the authorities to which I have referred. Her Reasons were thorough and well considered, and I can see no basis upon which to interfere with her decision.
DECISION
The decision of the Arbitrator dated 18 January 2010 is confirmed.
COSTS
The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
4 May 2010
I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ACTING DEPUTY PRESIDENT DEBORAH MOORE OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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