Ecowize North Pty Ltd v Ballard
[2007] NSWWCCPD 179
•15 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Ecowize North Pty Ltd v Ballard [2007] NSWWCCPD 179
APPELLANT: Ecowize North Pty Ltd
RESPONDENT: Kerry Francis Ballard
INSURER:CGU Workers Compensation (NSW) Pty Limited
FILE NUMBER: WCC11-07
DATE OF ARBITRATOR’S DECISION: 30 March 2007
DATE OF APPEAL DECISION: 15 August 2007
SUBJECT MATTER OF DECISION: Refusal to allow cross-examination; application of Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; whether formal orders were consistent with factual findings.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Kemp & Co Lawyers
Respondent: Steve Masselos & Co
ORDERS MADE ON APPEAL: Paragraph two of the Arbitrator’s determination and subparagraph two of paragraph 57 of the Arbitrator’s Statement of Reasons for Decision dated 30 March 2007 are revoked and the following order is made:
“2.Award for the Applicant under section 36 of the Workers Compensation Act 1987 in the sum of $676.90 per week from 29 September 2006 until 14 December 2006 and under section 37 of that Act at the maximum statutory rate (as adjusted) for a worker with a dependent spouse from 15 December 2006 to date and continuing.”
Paragraph 56 of the Arbitrator’s Statement of Reasons for Decision dated 30 March 2007 is amended to revoke “6 September 2006” and the words “partially incapacitated” and substitute “15 June 2006” and the words “totally incapacitated” respectively.
Paragraphs one, three, four and five of the Arbitrator’s determination and subparagraphs one, three, four and five of the Arbitrator’s Statement of Reasons for Decision dated 30 March 2007 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal pursuant to Schedule 6 Table 4 Item 1 of the Workers Compensation Regulation 2003 (as amended) and I certify those costs to be the sum of $2,200.00 (plus GST).
BACKGROUND TO THE APPEAL
Kerry Francis Ballard (‘Mr Ballard/the Respondent Worker’) ceased paid employment in 1991 to care for his school age children after the death of his wife. He returned to work in 2004 as a casual commercial cleaner. In December 2004 he started work for Ecowize North Pty Ltd (‘Ecowize/ the Appellant Employer’) as an industrial cleaner at the Heinz food processing plant at Wagga Wagga working four 9 1/2 hour shifts per week, usually starting at 5.30pm and finishing at 3.00am.
Mr Ballard’s duties required him to use a high-pressure industrial hose with a ½ metre long stainless steel nozzle with a tap attached to it. He would hold the hose in his out stretched left hand and use his right hand to turn the tap on and off as required. Controlling the hose was alleged to require significant strength (Mr Ballard’s statement 26 October 2006, paragraph 12). When he used the hose on his shift, he would use it for a minimum of 7 to 8 hours (Mr Ballard’s statement, paragraph 14). His other duties included placing meat and by products in bins, emptying those bins (which were said to be quite heavy) into skips and shovelling refuse from the floor into skips which was also said to be a heavy repetitive job.
In March or April 2005 Mr Ballard developed cramping in his arms, discomfort in his shoulders with pain in his arms and hands with tingling in his left hand. He also developed tenderness in his elbows and forearms with a feeling of swelling about the right elbow (Mr Ballard’s statement, paragraph 17). By the end of his shift he noticed that his symptoms were much more severe. They did not completely settle with rest.
In about February 2006 Mr Ballard’s workload significantly increased because Ecowize no longer employed ‘on call’ casuals and the production schedule of the plant increased. As a result he found that he was virtually doing the work of two men and he felt he had no recovery time to rest his arms (Mr Ballard’s statement, paragraph 18).
On 9 June 2006 Mr Ballard attended on Dr Solomon and was given a WorkCover certificate declaring him fit for suitable duties from that day until 12 July 2006.
Mr Ballard ceased work because of his symptoms on 15 June 2006 and completed and submitted a claim form on the same day. A second claim form was submitted on 18 August 2006. He returned to work on modified hours from 24 June until 29 June 2006 and again from 14 to 18 August 2006 but has not returned to work since he ceased duties on 18 August 2006.
His claim was initially accepted and he was paid voluntary compensation until 28 September 2006 when it was denied by letter of that date from CGU Workers Compensation (NSW) Limited (‘CGU’), Ecowize’s workers compensation insurer. The claim was denied on the ground that his “ongoing incapacity is degenerative and is no longer work-related”. In support of its decision the insurer relied on a report of Dr Stapleton dated 9 August 2006, “which stated that work aggravated the degenerative condition and any aggravation that was caused by employment has now ceased”. In a letter dated 12 October 2006 the insurer confirmed the decision to deny liability. Its reason was that Mr Ballard’s “injury no longer results in any further work related incapacity”.
Mr Ballard’s Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) on 4 January 2007. The Application alleged that Mr Ballard had sustained injury to his “left and right arms, left and right wrists, left and right shoulders, bilateral epicondylitis and neck” as a result of the nature and conditions of his work between December 2004 and July 2006. The “notional date of injury” was said to be 9 June 2006. He sought weekly compensation from “28 [sic] September 2006 to date and continuing” together with medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
By its Reply filed on 25 January 2007 Ecowize confirmed the matters in dispute to be “as per exchange of offers attached to the Application”. As no offers were made, I assume that the matters in dispute are the matters set out in the letters from CGU dated 28 September and 12 October 2006.
The matter was listed for conciliation and arbitration before a Commission arbitrator on 5 March 2007 when it proceeded to arbitration. In a reserved decision dated 30 March 2007 the Arbitrator found in favour of Mr Ballard.
By an ‘Appeal Against Decision of Arbitrator’ filed in the Commission on 26 April 2007, Ecowize seeks leave to appeal that decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of that amount is at issue on appeal and therefore the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 30 March 2007, records the Arbitrator’s orders as follows:
“1. Award for the Respondent for the neck;
2.Respondent to pay the Applicant weekly benefits pursuant to s.40 from 28 September 2006 to date and continuing at the statutory rate for a worker with dependant spouse;
3.That the Respondent to pay the Applicant’s reasonable and necessary medical expenses for the compensable injury;
4.That assessment of WPI for the left and right upper extremities be referred to an AMS.
5.That the Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)refusing the Appellant Employer’s application for leave to cross-examine Mr Ballard (‘refusal to allow cross-examination’);
(b)accepting the evidence of Dr Patrick over that of Dr Stapleton (‘medical evidence’), and
(c)failing to consider evidence (‘consideration of evidence’).
In addition, the Respondent Worker alleges that the Arbitrator was in error in finding that Mr Ballard could earn ‘nil’ in some comparable employment and then awarding compensation under section 40 of the 1987 Act and not under sections 36 and/or 37 of that Act. This matter is dealt with below under ‘other matters’.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Refusal to Allow Cross-Examination
The evidence filed on behalf of Ecowize was that Mr Ballard’s duties were not as summarised at paragraph [2] above but were as set out in a statement from Mr Clarke, its Director of Technical Services, dated 7 March 2007. In it he stated that he was very familiar with the site at which Mr Ballard carried out his duties and with the equipment he used in the course of his work. Mr Clarke added that he “has had to carry out the same type of cleaning duties as those performed by the Applicant on numerous occasions” (see Mr Clarke’s statement 7 March 2007, paragraph five). Unfortunately he did not indicate on how many occasions, in what circumstances or over what period he performed those duties. After describing the hose used by Mr Ballard, Mr Clarke added:
“9.In a typical shift the Applicant would have used the hose with the lance extension for 1 and a half hours each night. During the remainder of the shift the Applicant used a hose without the lance extension but with a brass rinsing nozzle which weighed around 100 grams.
10.The tap which is incorporated into the handle of the hose requires little effort to operate. It turns 90 degrees and requires far less effort to operate than a domestic tap.
11.During the course of a typical shift, the operator would activate the nozzle less than 10 to 20 times a shift.
12.The diameter of the hose is 20mm.
13.While the cleaning hoses used by the Applicant require more effort to hold and operate than a domestic garden hose, the effort required of the operator is by no means significant.
14.I dispute the Applicant’s assertion that a significant amount of strength was required to operate the hoses.
15.The water pressure as supplied to the hose is 25 bar.
16.As a comparison, the water pressure from a ‘Gerni’ pressure cleaner is typically 90 to 125 bar.”
It is argued that as Mr Ballard’s case was based on the acceptance of his history that his job involved heavy industrial cleaning as set out in his statement of 26 October 2006 and summarized at paragraph [2] above, the Appellant Employer should have been allowed to cross-examine Mr Ballard about the job description set out in Mr Clarke’s statement and that a failure to allow cross-examination deprived it of an opportunity “to invite the worker to consider the statement of David Clarke” (Appellant Employer’s submissions, page 10).
Reference is made to the “highly credible evidence before the Arbitrator” that the “symptoms caused by repetitive work could well be self-limiting” (Appellant Employer’s submissions page 11). It is then argued at page 11 of the submissions:
“Naturally, if the forces involved at work were great, there would be stronger grounds for accepting, as did Dr Patrick, that permanent damage had been occasioned. If, conversely, the efforts involved were not significant, as Mr Clarke had observed, then there were stronger grounds for accepting views expressed and in evidence before the Commission that the affect [sic] of those duties was short-lived, perhaps no more than 8 weeks, as Dr Stapleton considered.”
For the following reasons I do not accept the Arbitrator was in error in refusing to allow counsel for Ecowize to cross-examine Mr Ballard:
a)there is no automatic right of cross-examination in the Commission;
b)in Zheng, Bryson JA said at [37]:
“There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
c)as submitted by Mr Ballard, the exact nature of his duties was of minimal importance to the outcome of the proceedings because neither injury nor substantial contributing factor were in issue (T1.49 to 2.15 and T11.45);
d)both doctors relied on by the Appellant Employer accepted that Mr Ballard’s employment had caused and/or aggravated his condition of bilateral epicondylitis (Dr Redgment, report 24 August 2006, at page one and Dr Stapleton, report 9 August 2006, at pages three and four);
e)I accept Mr Ballard’s submission that the nature and consequences of an injury in a medical sense are not necessarily linked to the mechanism by which that injury is received. A minor work accident or event may have serious medical consequence and a serious accident or event may have no relevant consequences. Whether the effect of any injury has ceased is a medical question to be assessed in the light of the clinical evidence;
f)whether to allow cross-examination was a matter for the Arbitrator’s discretion. Whilst I accept an attack on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; that is not the only basis on which the Presidential member may act (Zheng at [38]). In the present matter the Arbitrator gave her reasons for refusing leave to cross-examine at T3.31 to 43 where she stated that she was not convinced that “this is the kind of case where there is a need to adduce more evidence from the applicant” and that she was not persuaded “that there was a real need to cross-examine” noting that she did not think credibility was in issue. Before finally ruling on the application for leave to cross-examine she invited further submissions from counsel for the Appellant Employer who declined to add to his previous submissions (T4.1). The Arbitrator’s ruling did not involve any error in the exercise of her discretion. Nor did it involve any denial of procedural fairness. Mr Clarke’s evidence was before the Arbitrator and considered by her in reaching her conclusions;
g)it was open to the Arbitrator to find, as she did find, that there was nothing in Mr Clarke’s statement which caused her to doubt that Mr Ballard “worked predominantly with a hose during his shifts, that he did have to turn the tap on and off reasonably frequently during his shift and that from January 2006 his workload significantly increased” (Statement of Reasons for Decision (‘Reasons’) at paragraph 33), and
h)there was no evidence that had Mr Clarke’s statement been accepted as accurate it would have led to a different result or even that it would have resulted in the Appellant Employer’s doctors changing their opinions.
Whilst at the arbitration hearing counsel for Ecowize sought to cross-examine Mr Ballard on issues other than Mr Clarke’s statement (T3.5-17), it has not been argued on appeal that the Arbitrator was in error in refusing to allow cross-examination on those issues.
Medical Evidence
I agree with Mr Ballard’s submission that the exact nature of the Appellant Employer’s challenge on this issue is unclear. The Appellant Employer’s argument seems to be:
a) the Arbitrator was in error in considering that the opinion of Dr Stapleton was in conflict with that of Dr Redgment (‘Dr Redgment’s evidence’);
b) Dr Stapleton’s opinion was rejected because of the view he expressed that the effect of Mr Ballard’s injury would not have lasted beyond eight weeks (‘Dr Stapleton’s evidence’);
c) the principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (‘Makita’) ought to have led the Arbitrator to consider whether the basis for Dr Patrick’s opinion had been made out (‘Dr Patrick’s evidence’);
d) Mr Clarke’s evidence was that the effort required of the operator to use the hose was “by no means significant”. Dr Patrick’s history was that “when he [Mr Ballard] was holding and grasping with the left hand out in front he would always be pushing down against the pressure of the hot water jet which would always [be] tending to forcibly push the nozzle upwards” (Dr Patrick, report 16 October 2006 page two). As the Arbitrator did not deal with the challenge to Mr Ballard’s account of his duties she did not inquire as to whether the basis for Dr Patrick’s view had been made out and she was in error (‘Dr Patrick’s evidence’).
Dr Redgment’s Evidence
Whilst Dr Redgment agreed with Dr Stapleton’s conclusion as far as diagnosis was concerned he stated that Mr Ballard’s work “using a high pressure hose which strains both his forearms and has resulted, over time in him developing what appears clinically to be bilateral epicondylitis (tennis elbow)” (Dr Redgment report 24 August 2006, page one). Dr Stapleton did not believe the condition of epicondylitis was ‘an injury’ but considered it to be a degenerate problem, which would have been aggravated by his work as an industrial cleaner. Dr Stapleton added that as Mr Ballard had been off work for eight weeks that was sufficient time for the aggravation to have ceased. Dr Redgment stated:
“…tennis elbow tends to be a self limiting condition which is aggravated by certain physical activities. Having said that, at the age of 54, the chances of it getting better if he continues to use the high pressure hose is probably minimal in the medium term and he probably does need to consider a slight change of occupation.” (emphasis added)
The only reasonable conclusion from this evidence is that, contrary to Dr Stapleton’s opinion, Dr Redgment did not consider that the condition had resolved by the time of his examination on 23 August 2006. On this issue Dr Redgment was in conflict with Dr Stapleton who was firmly of the view that any aggravation had ceased by the time of his examination on 9 August 2006. The Arbitrator’s acceptance of Dr Redgment’s opinion on the issues of injury and causation (Reasons, paragraph 32) discloses no error.
Dr Stapleton’s Evidence
The Arbitrator’s view that Dr Stapleton’s report “should be given little weight” was explained at paragraphs 28 to 30 inclusive of her Reasons as follows:
a) he gave no explanation for why he concluded that Mr Ballard’s tennis elbow involving both hands was a “degenerative problem”;
b) he did not explain why “any trace of the work aggravation would have ceased” as a result of Mr Ballard being off work for eight weeks;
c) his report was confusing as to whether Mr Ballard had an injury or not;
d) he accepted that the onset of the problem was in May 2005 and that it was related to work, but “for reasons connected with his view that it is a degenerate problem it is mysteriously not related to work any more”;
e) the fact that Mr Ballard’s condition improved with a period away from work could just as easily lead to the conclusion that it was a work related condition, and
f) Dr Stapleton did not provide support for the assumptions of fact upon which his opinion was based.
The Arbitrator’s decision to place little weight on Dr Stapleton’s evidence was open to her and discloses no error.
Dr Patrick’s Evidence
The attack on the Arbitrator’s acceptance of Dr Patrick’s opinion is based on whether there was evidence of the facts upon which he based his opinion. For the following reasons I do not believe the Arbitrator was in error on this issue:
a) there was ample evidence from Mr Ballard about the nature of his duties. That evidence was consistent with the history recorded by Dr Patrick and provided a ‘fair climate’ for the acceptance of the doctor’s opinion (Makita at 731-732; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510 and Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76);
b) the history recorded by Dr Patrick was itself evidence of the facts asserted by Mr Ballard (see Daw v Toy World (NSW) Pty Limited [2001] NSWCA 25 and section 60 Evidence Act 1995);
c) there was no evidence that Mr Clarke’s evidence, if accepted in preference to Mr Ballard’s evidence, would have resulted in a different conclusion from either Dr Stapleton or Dr Patrick;
d) all of the medical evidence accepted that Mr Ballard developed bi-lateral epicondylitis and that that condition was caused and/or aggravated by his work with Ecowize. The real issue was whether the effects of the work related injury were continuing, and
e) the Arbitrator did deal with the challenge to Mr Ballard’s account of his duties (on account of Mr Clarke’s evidence) and concluded that Mr Ballard “worked predominantly with a hose during his shifts, that he did have to turn the tap on and off reasonably frequently during his shift and that from January 2006 his workload significantly increased” (Reasons, paragraph 33). She then noted that all of the doctors accepted that Mr Ballard’s condition arose out of his work and “nothing in David Clarke’s statement causes me to consider that the doctors have been given an incorrect history” (Reasons, paragraph 34). These findings were open to the Arbitrator and disclose no error.
Consideration of Evidence
The Appellant Employer’s argument seems to be that the Arbitrator was in error in that she did not allude to “disputed material, nor give her reasons for her apparent rejection of that material” (Appellant Employer’s submissions page 12). The ‘disputed material’ has not been identified but I assume that it is a reference to Mr Clarke’s statement and Dr Stapleton’s report of 9 August 2006. Dr Stapleton’s evidence has been dealt with at [34] and [35] above. The Arbitrator considered Mr Clarke’s evidence and found that there was nothing in it that caused her to doubt that Mr Ballard worked predominantly with a hose, that he had to turn the tap on and off reasonably frequently during his shift and that from January 2006 his workload increased significantly (Reasons, paragraph 33). That conclusion was sufficient to deal with that issue as it explained the basis upon which the Arbitrator reached her conclusion.
A party is entitled to a decision based on findings and reasons that enable “a proper understanding of the basis upon which the verdict entered has been reached” (Pettit v Dunkley [1971] 1 NSWLR 376 at 382). Reasons must be read in the context of the decision as a whole and a degree of latitude should be allowed in the expression of those reasons (per Clarke JA in Mashiati v Australian Poultry Ltd (1995) 11 NSWCCR 345 at 353).
In YG & GG v Minister for Community Services [2002] NSWCA 247 Hodgson JA held at [37] and [38]:
“37. Furthermore, inadequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal had not exercised its jurisdiction in accordance with law: see Absolon v. NSW TAFE [1999] NSWCA 311 at [67].
38. In my opinion, a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may reasonably differ.”
In giving reasons for a decision an arbitrator should refer to relevant parts of the evidence, give reasons for the findings made and, where there is disputed expert evidence, give an explanation of why one expert has been preferred over another (Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 at [33]). It is not, however, necessary for an arbitrator to refer to every fact in issue nor every step in the reasoning process (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156).
Having regard to the issues involved and the above authorities, it is my view that the Arbitrator’s reasons were not only adequate but provided a thorough and detailed consideration of the evidence and the basis for her conclusions. I reject this ground of appeal.
OTHER MATTERS
The Respondent Worker submits that given the Arbitrator’s unchallenged finding that Mr Ballard’s ability to earn in some suitable employment was ‘nil’, he is entitled to an award of compensation under sections 36 and 37 of the 1987 Act for total incapacity rather than under section 40 of that Act for partial incapacity, as determined by the Arbitrator. This issue was raised in the Respondent Worker’s submissions filed on 7 June 2007. Whilst the Appellant Employer filed submissions in response on 29 June 2007, it did not deal with this matter. Given that the appeal is otherwise properly before me and given that the Commission’s rules do not provide for a cross appeal and that the Commission is to act according to the substantial merits of the case without regard to technicalities (section 354 of the 1998 Act), I consider that the matter is properly before me and it is appropriate that I deal with it. I also note the decision of Bryson JA in Zheng quoted at [22] above that the “powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed”. The Appellant Employer has had every opportunity to respond to the issue raised by the Respondent Worker but it has chosen not to do so.
The argument is that the test of incapacity is not whether an injured worker has some theoretical earning capacity, but whether there is a practical prospect of that worker being able to obtain work in the labour market reasonably accessible to him or her (Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWLR 206 and Moran Health Care Services v Woods (1997) 14 NSWCCR 499). Given the Arbitrator’s finding (not challenged on appeal) that there is no work Mr Ballard has any practical or realistic prospect of obtaining and that his ability to earn is ‘nil’ (Reasons, paragraphs 46 and 47), it is submitted that the correct award is one for total incapacity. I agree with this submission as it is the only result that can follow as a matter of law from the unchallenged factual findings made. As a consequence the Arbitrator was in error in making an award in favour of Mr Ballard under section 40 of the 1987 Act, as it was inconsistent with the factual findings made that Mr Ballard has ‘nil’ earning capacity.
The award made by the Arbitrator is expressed to be under section 40 from 28 September 2006 to date and continuing. Consistent with the Arbitrator’s finding, Mr Ballard is entitled to an award for total incapacity. The Arbitrator’s findings were consistent with the application of the disease provisions of the 1987 Act (Reasons, paragraphs 18 to 23 inclusive and paragraph 56), though she made no finding as to whether the injury came under section 15 or section 16 of that Act. The failure to make that finding is of no consequence in the circumstances of the present matter and is not challenged on appeal. Applying the disease provisions the appropriate deemed date of injury is the date on which Mr Ballard was first incapacitated (P & O Berkeley Challenge Pty Ltd v Alfonso (2000) 49 NSWLR 481). Mr Ballard first attended on Dr Solomon on 9 June 2006 when he was certified fit for suitable duties, however he did not cease work until 15 June 2006 and that is the date on which he was first incapacitated under the terms of the legislation. Therefore, Mr Ballard’s first 26 weeks of incapacity is calculated from that date and expires on 14 December 2006. Based on these findings the appropriate award should be under section 36 of the 1987 Act in the sum of $676.90 per week (his agreed current weekly wage rate) from 29 September 2006 until 14 December 2006 and then under section 37 of the 1987 Act at the appropriate statutory rate for a worker with a dependent spouse from 15 December 2006 to date and continuing as adjusted.
DECISION
Paragraph two of the Arbitrator’s determination and subparagraph two of paragraph 57 the Arbitrator’s Statement of Reasons for Decision dated 30 March 2007 are revoked and the following order is made:
“2.Award for the Applicant under section 36 of the Workers Compensation Act 1987 in the sum of $676.90 per week from 29 September 2006 until 14 December 2006 and under section 37 of that Act at the maximum statutory rate (as adjusted) for a worker with a dependent spouse from 15 December 2006 to date and continuing.”
Paragraph 56 of the Arbitrator’s Statement of Reasons for Decision dated 30 March 2007 is amended to revoke “6 September 2006” and the words “partially incapacitated” and substitute “15 June 2006” and the words “totally incapacitated” respectively.
Paragraphs one, three, four and five of the Arbitrator’s determination and subparagraphs one, three, four and five of the Arbitrator’s Statement of Reasons for Decision dated 30 March 2007 are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal pursuant to Schedule 6 Table 4 Item 1 of the Workers Compensation Regulation 2003 (as amended) and I certify those costs to be the sum of $2,200.00 (plus GST).
Bill Roche
Deputy President
15 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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