Excelior Pty Limited v Afarin

[2007] NSWWCCPD 117

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Excelior Pty Limited v Afarin [2007] NSWWCCPD 117

APPELLANT:  Excelior Pty Limited

RESPONDENT:  Katrina Afarin

INSURER:CGU Workers Compensation (NSW) Limited

FILE NUMBER:  WCC10863-06

DATE OF ARBITRATOR’S DECISION:          2 November 2006

DATE OF APPEAL DECISION:  22 May 2007

SUBJECT MATTER OF DECISION: Section 40(2A) of the Workers Compensation Act 1987.

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Leitch Hasson Dent

Respondent:   Stormer Lawyers

ORDERS MADE ON APPEAL:  For the reasons set out in this decision, the Arbitrator’s determination and orders dated 2 November 2006 are confirmed.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 30 November 2006 Excelior Pty Limited (‘the Appellant Employer/Excelior/Skilled’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 2 November 2006.

1. The Respondent to the Appeal is Katrina Afarin (‘the Respondent Worker/Ms Afarin’).

1. Ms Afarin was born on 22 March 1962 and is currently 45 years old.  She commenced working with Excelior as a dispatch officer in April 2005.  On 20 September 2005 she suffered an injury to her back when she was lifting boxes from the floor and placing them on a conveyor belt to scan and label them.  She reported the incident on 23 September 2005 and has not returned to work since 20 September 2005.

1. Ms Afarin’s claim was accepted and she was paid compensation.  Weekly compensation was suspended by letter from CGU Workers Commission (NSW) Limited (‘CGU’) dated 18 May 2006 “due to non-compliance with suitable duties provided by Skilled [Excelior] at Narellan”.  In addition, Ms Afarin’s claim for lump sum compensation was declined on the basis of a report by Professor Bauze dated 4 April 2006.

1. An Application to Resolve a Dispute (‘the Application’) was registered with the Commission on 18 July 2006 seeking weekly compensation from 17 November 2005 to date and continuing together with a general order for the payment of hospital and medical expenses, whole person impairment and pain and suffering compensation.

1. By its Reply filed on 7 August 2006 the Appellant Employer disputed incapacity; the connection between the nature and conditions of her employment and its contribution to her alleged injury; whether Ms Afarin’s hospital and medical expenses were reasonably necessary as a result of the injury; Ms Afarin’s capacity to earn and her failure to comply with her obligations under the injury management plan.

1. At a teleconference held on 25 September 2006 Ms Afarin was referred to an Approved Medical Specialist (‘AMS’) for assessment of permanent impairment.  No Medical Assessment Certificate (‘MAC’) had been issued at the time of the arbitration hearing.

1. The claim was listed for conciliation and arbitration before a Commission Arbitrator on 18 October 2006.  The matter could not be resolved and proceeded to arbitration hearing. 

1. In a reserved decision dated 2 November 2006 the Arbitrator found in favour of Ms Afarin on the issue of weekly compensation and medical expenses pursuant to sections 40 and 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. Excelior seeks leave to appeal the Arbitrator’s decision.

LEAVE TO APPEAL

Monetary Threshold

1. 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’).

1. Neither party has made any submissions on the threshold issues in section 352(2). The Appellant Employer seeks that the Arbitrator’s award in respect of weekly compensation be set aside and that an award be made in its favour on that issue. On that basis the amount of compensation ‘at issue’ on appeal meets the thresholds in section 352.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. Leave to appeal is granted.

PRELIMINARY MATTERS

1. 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.”

1. 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

1. The ‘Certificate of Determination’, dated 2 November 2006, records the Arbitrator’s orders as follows:

“1.That the Respondent pay the Applicant weekly benefits compensation at the rate of $318.80 pursuant to s.40 of the Workers Compensation Act 1987 from 17 November 2005 to date and continuing in accordance with the provisions of the Act.

2.That the Respondent pay the Applicant’s reasonable and necessary medical and treatment expenses pursuant to s.60 of the Workers Compensation Act 1987 on production of account [sic] or receipts.

3.That the Respondent pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

1. The issue in dispute in the appeal is whether the Arbitrator erred in failing to apply the provisions of section 40(2A) of the 1987 Act in circumstances where she found that Ms Afarin had unreasonably rejected the Appellant Employer’s offer of suitable light duties on 24 February 2006.

1. The Respondent Worker argues that the Arbitrator’s finding that she unreasonably rejected suitable light duties was wrong and should be set aside.

SUBMISSIONS AND FINDINGS

Weekly Compensation and Section 40(2A)

1. Excelior’s submissions are so brief that they can be set out in full:

“3.  The Arbitrator found that the Applicant’s rejection of an offer for suitable duties on 24 February 2006 was unreasonable.  The Arbitrator found that the Applicant’s rejection of suitable duties at Narellan on 24 February 2006 on the basis of excessive travel time was also unreasonable.  Having made these findings, the Arbitrator should have applied Section 42A [sic] of the Act to reduce the Applicant’s earnings in accordance with the difference between her pre-injury award in accordance with the provisions of Section 42A [sic].”

1. The reference to section 42A is incorrect and should be section 40(2A) of the 1987 Act.

1. The relief sought is that the award in favour of Ms Afarin under section 40 be revoked and “substituted by an award for the Respondent in respect of the claim for weekly payments”.

1. Ms Afarin submits that even if the Arbitrator erred in not applying section 40(2A), the result would have been no different in view of the Arbitrator’s undisputed findings at paragraph 69 of her Statement of Reasons for Decision (‘Reasons’), that Ms Arafin was only capable of working 20 hours per week at her pre-injury rate of pay. Ms Afarin’s entitlement pursuant to section 40(2A) of the 1987 Act is the difference between her pre-injury current weekly wage rate and her current weekly wage rate from some suitable employment post injury. It is submitted that the difference between the two is the same as the Arbitrator found at paragraph 77 of her Reasons, given that Ms Afarin was a casual employee and did not perform overtime.

1. It was agreed by the parties at the arbitration that the correct figure for pre-injury earnings was $716 (T8.18) or $19.86 per hour (T23.20).  Whilst it was not expressly stated, I infer that the figures of $716.00 and $19.86 were agreed to be Ms Afarin’s average weekly earnings and her current weekly wage rate.  That must be so given that she did not work overtime and no other rates were suggested or agreed in the evidence.

1. At the arbitration counsel for Excelior made the following submissions at T22.36 in respect of section 40(2)A:

“MR MORGAN:  40(2A) says because they’re offered suitable employment and they’ve rejected it, you just look at what they would have earned if they had worked in that suitable employment.” (emphasis added)

1. Counsel for Ms Afarin, submitted at T30.47 that section 40(2A) had no application because Ms Afarin had not unreasonably refused suitable duties. The Arbitrator rejected that submission and held that Ms Afarin had unreasonably rejected suitable duties. This finding required her to then consider and apply section 40(2A).

1. Section 40(2A) provides:

“(2A) Calculation of reduction in earnings of worker—workers rejecting suitable employment.  If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:

(a) the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and
(b) the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).”

1. The current weekly wage rate for Ms Afarin’s pre-injury employment was $716.00 per week.  The suitable employment offered to her was for 20 hours per week (T14.12) at $19.86 per hour or $397.20 per week.  The difference between those two figures is $318.80.  That is the amount the Arbitrator awarded, but she did so after applying the steps set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 and not by reference to section 40(2A). Therefore, whilst the Arbitrator’s factual findings required her to apply section 40(2A), the end result is the same.

1. Not only is the Appellant Employer not entitled to an award in its favour it is not entitled to any variation of the Arbitrator’s award, which remains at $318.80 per week.  Not only is this appeal totally without merit, but also it seeks an order contrary to the submissions made by counsel for the Appellant Employer at the arbitration hearing at T22.36.

Rejection of Suitable Duties

1. Ms Afarin submits that the Arbitrator’s finding that Ms Arafin’s rejection of suitable duties at Narellan was unreasonable, should be set aside as it represents a finding on credit which was made unfairly and unreasonably.  Ms Afarin states that the Arbitrator’s acceptance of the evidence of her refusal to sign the Induction Acknowledgement and the Return to Work Plan on 24 February 2006 at Narellan was based on the statement of Mr James Woods, which it is submitted was entirely hearsay as Mr Woods was not present.  In addition, there was no evidence from Mr Russell who was present that day on behalf of Excelior.

1. The evidence before the Arbitrator was that on 22 February 2006 Ms Afarin attended a meeting with her treating doctor, Dr Cameron, Excelior and CGU where it was agreed that she could do light duties, four hours per day, two days per week and that the drive to work at Narellan to perform these light duties would take 35 minutes.  On 25 November 2005, Dr Cameron had certified that Ms Afrain should not travel more than half an hour. 

1. In her statement dated 11 October 2006 Ms Afarin said that on 24 February 2006 she went to Narellan to attempt the light duties and that her husband drove her as she did not know the way.  Her daughter also accompanied her on the trip and was going to be dropped off at the train station so she could travel to university.  She stated that the trip took 50 minutes and:

“I met with another Manager from Skilled called Russel [sic].  He showed me around the factory and said that there was no work that day for me and that I should just sit around.  He wanted me to sign some papers.  I tried to read the papers but I couldn’t understand them.  At that stage I became fairly emotional and was upset because of the long drive.  Accordingly I didn’t sign the papers.  Subsequently Russel suggested that I leave and I did.”

1. Ms Afarin further stated: “I would have attempted light duties on 24/2/06 at Narellan if the driving wasn’t so far and that was the main problem and I am prepared to attempt any light duties provided they were within the travelling restrictions imposed by my Doctor”.

2. Mr James Woods, Skilled’s (‘Excelior’) Group Injury Management Co-ordinator NSW/ACT, in his statement dated 18 October 2006, stated that Ms Afarin arrived at the work site at Narellan on 24 February 2006 with three other people in the car.  He added that she was taken on a site induction for approximately 30 minutes and:

“When the induction process was finished Ms Afarin was requested to ‘sign off’ the induction procedure.  Ms Afarin refused to sign the induction paperwork.  Accordingly, SKILLED were unable to allow Ms Afarin to access the site to commence her suitable duties.  Ms Afarin also then refused to sign the return to work plan which Dr Cameron had already signed and approved her.  It was explained to Ms Afarin that Dr Cameron had agreed to the plan (hence his signature) and that Ms Afarin had also verbally already agreed to the plan at the case conference.  Again Ms Afarin refused to sign the return to work .  I personally, therefore, asked her to leave the site if she was not prepared to sign off on a simple induction procedure and the return to work agreed to by all parties with the exception of Ms Afarin.”

1. Mr Woods also disputed Ms Afarin’s claim that the travelling time from her residence at St Clair to Narellan was 50 minutes and stated that he had personally undertaken the same trip, which took approximately 36 minutes.

1. The Arbitrator found that Ms Afarin acted unreasonably in her rejection of the suitable duties offered by Excelior and was not entitled to benefits pursuant to section 38 of the 1987 Act (paragraphs 50 to 54 of her Reasons).  This decision was based on the evidence before the Arbitrator in relation to Ms Afarin’s refusal to sign the necessary paperwork on 24 February 2006 to commence at work on suitable duties at Narellan.  The evidence disclosed that Excelior was able to provide suitable duties to Ms Afarin at its premises in Narellan and that it had participated in a return to work plan developed in consultation with Ms Afarin’s treating doctor, and herself.  In addition, the Arbitrator found that the rejection of the suitable duties at Narellan, on the basis of the excessive travel time, was also unreasonable.  All of these findings were open to the Arbitrator and disclose no error.  As the Respondent Worker concedes, these findings were based partly on the Arbitrator’s assessment of Ms Afarin’s credit.  In these circumstances such a finding should not be set aside unless the finding was inconsistent with incontrovertible facts or was based on glaringly improbable evidence (Devries v Australian NationalRailways Commission (1993) 177 CLR 472, Abalos v Australian PostalCommission (1990) 171 CLR 167 and Fox v Percy (2003) 214 CLR 118). No such challenge has or could be made in this matter. Ms Afarin’s submission is that the Arbitrator’s findings were unfair and unreasonable. I do not accept that submission. The Arbitrator carefully considered all the evidence and provided detailed reasons as to why she rejected the Respondent Worker’s evidence on this issue. Her reasoning process was sound.

1. The Arbitrator’s findings in respect of Ms Afarin’s unreasonable rejection of suitable duties was open to her and discloses no error.

DECISION

1. For the reasons set out in this decision, the Arbitrator’s determination and orders dated 2 November 2006 are confirmed.

COSTS

1. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

Bill Roche

Deputy President  

22 May 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