Fletcher International Exports Pty Limited v Barrow
[2006] NSWWCCPD 119
•14 June 2006
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Decision confirmed on Appeal: Fletcher International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244; (2007) 5 DDCR 247 | |||||
| CITATION: | Fletcher International Exports Pty Limited v Barrow [2006] NSWWCCPD 119 | ||||
| APPELLANT: | Fletcher International Exports Pty Limited | ||||
| RESPONDENT: | Thomas Ernest Barrow | ||||
| INSURERS: | 1. CGU Workers Compensation (NSW) Limited – on risk for all relevant periods up to 31 August 1999. 2. Fletcher International Exports Pty Limited – self insurer – on risk from 1 September 1999 to date. | ||||
| FILE NUMBER: | WCC7860-04 | ||||
| DATE OF ARBITRATOR’S DECISION: | 6 April 2005 | ||||
| DATE OF APPEAL DECISION: | 14 June 2006 | ||||
| SUBJECT MATTER OF DECISION: | Jurisdiction; adequacy of evidence for section 40 award pursuant to the Workers Compensation Act 1987. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates (self insurer) | |||
| Respondent: | Oates & Smith CGU – no appearance | ||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 3, 4, 5 and 6 of the decision of the Arbitrator dated 6 April 2005 are confirmed. | ||||
| 2. Paragraphs 1 and 3 are revoked and the following substituted: | |||||
| (i) That the Respondent pay the Applicant weekly compensation pursuant to section 40 of the 1987 Act from 23 May 2002 to date and continuing. | |||||
| (ii) The rate of compensation pursuant to section 40 of the 1987 Act in respect to the aware set out in paragraph (ii) above is remitted to the Arbitrator at first instance to determine the issue of dependency only. | |||||
| 3. Fletcher International Exports Pty Limited is to pay the costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 27 April 2005 Fletcher International Exports Pty Limited as self insurer (‘Fletcher’) sought leave to bring an ‘Appeal Against the Decision of an Arbitrator’ in the Commission against the decision dated 6 April 2005.
The Respondent to the appeal is Thomas Ernest Barrow (‘Mr Barrow’). CGU Workers Compensation (NSW) Limited (‘CGU’), as the insurer of Fletcher prior to 1 September 1999 is not a party to the appeal.
Mr Barrow lodged an ‘Application to Resolve a Dispute’ in the Commission on 17 May 2004 claiming that as a result of the nature and conditions of his employment at Fletcher from 1990 to 23 May 2002, he suffered an injury to his neck and right shoulder. He sought weekly benefits compensation from 23 May 2002, medical, hospital or related expenses, and permanent impairment/pain and suffering compensation. The only relevant insurer nominated in that Application was CGU.
On 7 June 2004, CGU filed a Reply noting its period of risk as between 31 March 1990 and 31 March 1998.
On 31 August 2004, Fletcher filed a Reply but did not specify a period of risk.
The parties all attended a Teleconference on 30 September 2004 where, inter alia, agreement was reached as to various Directions for Production and service of reports and other documents.
The Arbitrator’s notes following a further Teleconference on 2 February 2005 disclose that CGU was apparently on risk to 15 October 1999 and Fletcher as self insurer thereafter. It is also noted that Fletcher indicated that it did not receive notification of documents produced pursuant to the Direction. An extension of time was granted for all parties to inspect those documents. In addition, a number of listed documents were admitted without objection. The claim for weekly benefits compensation and medical expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) was listed for conciliation/arbitration hearing on 11 March 2005.
On that date, the parties being unable to resolve their dispute, the matter proceeded to arbitration hearing. Lengthy oral evidence was given by Mr Barrow.
On 6 April 2005, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The determination of the Arbitrator was as follows:
“1. That the Respondent pay the Applicant weekly compensation from 23 May
2002 at the maximum Statutory Rate under section 40 of the Workers Compensation Act 1987 for a single person with two dependants.
2.Such weekly payments to continue in accordance with the provisions of the Act.
3.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
4.That the claim for section 66 and 67 entitlements be scheduled for a Teleconference within 42 days.
5.The matter is determined to be complex for the purposes of Item 4.10 of the Workers Compensation Regulation 2003.
6.That the Respondent pay the Applicant’s costs as agreed or assessed.”
In its appeal filed on 27 April 2005, Fletcher sought leave to appeal this decision on a number of grounds.
Mr Barrow purported to file a ‘Notice of Opposition to the Appeal’ on 1 June 2005 however, no submissions, nor indeed any material, are included in that document.
On 5 July 2005, Fletcher wrote to the Commission noting that a number of documents referred to in the Arbitrator’s determination had never been served on it and seeking copies of those documents. The Commission erroneously replied on 12 July 2005 that it had been unable to locate the documents. Fletcher then replied on 22 July 2005 as follows:
“The absence of this material from the file simply confirms the Grounds of Appeal
and as there are no submissions in opposition to the Appeal it should not be
necessary to inspect the file subject to the appeal being allowed.”
I am not sure of the relevance of this submission. It may relate to Fletcher’s submission that the Arbitrator considered as evidence “… that which was not evident.”
I have located the material referred to by Fletcher in the Arbitrator’s file and I propose to deal with this submission in due course.
LEAVE TO APPEAL
The amount at issue in the appeal satisfies the requirements of section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The appeal was filed within the time limits prescribed by section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Fletcher submits that the matter is not capable of being dealt with ‘on the papers’
“… Firstly, because Transcript of the proceedings have [sic] not yet been provided … and secondly, because the matter and issues raised by the Appeal are complex and will require that the Appellant be given the opportunity of reviewing and supplementing its submissions at a Hearing.”
Mr Barrow makes no submission on this point.
The appeal file contains a 77 page transcript of the proceedings heard on 11 March 2005. A copy was sent to Fletcher under cover of a letter from the Commission dated 23 June 2005. Notwithstanding Fletcher’s submission that it:
“… is not yet in a position to finalise the Grounds of Appeal and submissions but will do so at the Hearing before a Presidential Member following receipt of Transcript of Proceedings and following the provision of documents admitted by the Arbitrator but not provided to the Respondent,” no further submissions have been made.
The ‘request’ to the Commission for the provision of certain documents apparently in the Arbitrator’s file post-dated the lodging of the appeal, and does not appear to have been pursued by Fletcher as set out in its letter to the Commission of 5 July 2005 referred to in paragraph 12 above.
However, the material requested, to which I will refer in more detail shortly, was contained in documents produced under direction and admitted by the Arbitrator into evidence “without objection” at the Teleconference on 2 February 2005 such that I cannot see the basis for Fletcher’s assertion that this material was never served.
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 carefully read the transcript, the extensive material before the Arbitrator and the submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354(6) and in accordance with Practice Direction No. 1 to proceed ‘on the papers’ and that this is the appropriate course in the circumstances.
THE ISSUES IN DISPUTE
Fletcher has listed 12 grounds of appeal which are to some extent repetitive. The issues raised may be summarised as follows:
(a) The Arbitrator had no jurisdiction to determine the matter where no notification of injury or claim for compensation had been made against Fletcher.
(b) The Arbitrator failed to identify all issues in dispute.
(c) The Arbitrator erred in considering as evidence that which was not evident.
(d) The Arbitrator denied Fletcher natural justice and procedural fairness in allowing a late claim for dependency.
(e) The Arbitrator failed to give adequate reasons for purporting to find Mr Barrow suffered from a disease process.
(f) The Arbitrator failed to properly consider the application of section 16 of the 1987 Act.
(g) The Arbitrator’s section 40 assessment was against the weight of the evidence.
(h) The Arbitrator failed to give adequate reasons for rejecting the medical and other evidence relied upon by Fletcher.
SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Jurisdiction’ Error
Fletcher submits that:
“The Arbitrator has erred in construing that the Commission had jurisdiction to determine this matter in circumstances where no claim for compensation benefits had been made on the Appellant in its interest as a self insurer (or relevantly at all) and where no notification of injury was given to the Appellant.”
Fletcher also notes that it was not nominated as a party in the application and “… was only first able to participate in the proceedings in a telephone conference on 30 September 2004.”
Fletcher makes a further submission that:
“The Arbitrator erred in considering issues in dispute in circumstances where no claim had been made or notice of injury given and the Arbitrator erred in asserting that the worker notified the employer ‘… of the injury on 4 December 2000’ where there was no evidence of any such notification …”
These issues were dealt with by the Arbitrator at paragraph 20 of the ‘Statement of Reasons’. He said:
“An Injury Report and Claim Form was submitted to the Respondent on 4 December 2000 in relation to the injury of [sic] the right shoulder. This one page form includes language which clearly identifies it as a Claim Form. In the circumstances, I conclude that the Applicant has properly made out his claim against the Respondent in respect of the right shoulder.”
Fletcher claims in its letter to the Commission dated 5 July 2005 that it was never served with:
“… An injury report by the Applicant dated 4 December 2000, first aid notes said to be from the Respondent between 17 October 2000 and 10 January 2001, and a form letter said to be from the Respondent to Dr Riskallah dated 7 June 2002 all of which are referred to in paragraph 11 of the [Arbitrator’s] decision.”
The ‘Injury Report’ or ‘Claim Form’ dated 4 December 2000 is a document contained in the records produced by ‘the Medical Practice’ at Dubbo. Although not entirely clear, it seems from the contents of that material and indeed Mr Barrow’s evidence on transcript that he was referred from Fletcher to that practice such that a number of documents emanating from Fletcher are included in the material produced by ‘the Medical Practice’.
As I have said, this material was tendered without objection at the Teleconference on 2 February 2005. Reference is again made to it by Mr Barrow’s Counsel at page 2 of the transcript wherein he summarised the evidence he would rely upon. Again, no objection was taken.
The document headed “Injury Report and Incident Investigation” refers to an incident on 4 December 2000 where Mr Barrow again injured his shoulder “whilst working as a rover.” Although not signed by Mr Barrow, it appears to have been signed by a representative of Fletcher. First aid or ‘progress notes’ on Fletcher letterhead also included in the material from ‘the Medical Practice’ refer to arrangements being made by ‘Dr White’ to review Mr Barrow on 4 or 5 December 2000 regarding his right shoulder.
The same documents include a further ‘first aid record’ from Fletcher recording a complaint of right shoulder pain on 15 October 2000 to be assessed by Dr White on 17 October 2000.
Of more significance however is the document described by Fletcher as a “form letter’ from Fletcher to Dr Riskallah dated 7 June 2002. That letter is in the form of a ‘referral’. It is for ‘surgical procedure’ or ‘surgical review’. It nominates the employee as “Tom Barrow”, the injury as “right shoulder”, the date of injury as “5 October 2000” and of particular relevance, the claim number as “2000CLM0151”. It is noted that the appointment is arranged for 8 June 2002.
In the circumstances, the Arbitrator was entitled to make the finding contained in paragraph 20 of his ‘Statement of Reasons’. Fletcher’s claim that: “No notification of injury” was given is clearly without foundation for the reasons stated above.
Whilst the document dated 4 December 2000 is not described as a ‘Claim Form’ as such, the Arbitrator’s determination that it “includes language which clearly identifies it as a Claim Form” was open to him on the totality of the evidence before him.
There is one further piece of evidence on this point not directly referred to by the Arbitrator but included in the Reply filed by Fletcher. That is a medical report of Dr Robert Smith dated 26 August 2003. In that report, Dr Smith notes: “In your letter of June 27, 2003 you mentioned that the claimant submitted a claim form alleging an injury to his right shoulder on October 5, 2000.”
All of this material emanates from the records of Fletcher. To assert that “… there was no evidence of any such notification” is plainly wrong and simply suggests a failure on the part of Fletcher to provide its legal representative, let alone the other parties, with material relevant to the claim.
In these circumstances, I can see no error by the Arbitrator on this issue.
The ‘Issues in Dispute’ Error
Fletcher submits that:
“The Arbitrator erred in identifying the issues in dispute and in particular has erred in failing to identify the issues going to jurisdiction, notice of injury, claim for compensation and the relevant application and consideration of the disease provision.”
At paragraph 7 of the ‘Statement of Reasons’ the Arbitrator listed: “The issues in dispute in relation to the claim for weekly benefits and section 60 expenses …” It is true, no specific reference is made to ‘jurisdiction’, ‘notice of injury’, ‘claim’ or ‘disease’. Nonetheless, all these issues are canvassed in the body of the Arbitrator’s determination and to some extent in the transcript. For example, when cross examined by Fletcher’s solicitor as to whether any claim for compensation had been made, Mr Barrow replied (page 41 transcript) “me solicitor did all that I think … well I can’t read or write, oh I can read …”
In any event, for the reasons set out in the preceding paragraphs, there was no basis for Fletcher to assert that Mr Barrow had failed to notify it of an injury nor make a claim.
Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides as follows:
“(1) A statement of the Commission’s reasons, referred to in section 294(2) of the 1998 Act is to include:
(a) The findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) The Commission’s understanding of the applicable law, and
(c) The reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting sub-rule (1), the reasons set out in a statement referred to in sub-rule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
The Commission has held that:
“…is not necessary for an Arbitrator to give lengthy reasons for their decision. Provided that rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length nor specify and examine all relevant and judicial authority on the matters decided.” (See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56 at 45.
Lengthy written reasons are not required and would be unreasonable and inconsistent with the objectives of the Commission (see Liverpool City Council v Trovato [2004] NSWWCCPD 15).
The Arbitrator’s ‘Statement of Reasons’ clearly set out the relevant findings on material questions of fact and his understanding of the applicable law such that they demonstrate his awareness of the case made out by each party. Failure to specify each and every issue in dispute, particularly where those issues are identified within the body of a ‘Statement of Reasons’ does not constitute an error either of law, fact or discretion for the reasons stated.
The ‘Evidence’ Error
Fletcher submits that: “The Arbitrator has erred in considering as evidence that which was not evident.” No further particulars are provided. I assume that this is a reference to the material referred to earlier in the “jurisdiction” issue, but it is by no means clear.
As I have said, this material was admitted into evidence by the Arbitrator without objection. The fact that Fletcher apparently failed to notice it cannot be ascribed to any error on the part of the Arbitrator.
Without further particulars as to the nature of this ‘non-evident’ material, I am not satisfied that there has been any error by the Arbitrator on this issue.
The ‘Dependency’ Error
Fletcher submits that:
“The Arbitrator erred in denying the Respondent natural justice and procedural fairness in purporting to allow the Applicant to add an additional claim for dependant children over the objection of the Appellant and in circumstances where the Appellant had not been given an appropriate opportunity to meet the allegation.”
The Arbitrator stated at paragraph 30 of the ‘Statement of Reasons’:
“The Applicant has made a claim for his two daughters who are aged 11 and 13. This claim for dependants is set out in the Claim for Compensation Forms dated 26 September 1996 and 20 November 1997 attached to the Reply filed by [CGU] and the Applicant has given oral evidence as to the amount he paid to his daughters up to the termination of his employment which I find is in the order of $220.00 per week. In those circumstances, I find that his daughters are dependant on the worker.”
It is true, as Fletcher submits, that some evidence of dependency was included on claim forms which pre-dated its period of risk. Certainly, nothing in Mr Barrow’s application indicated that he had any dependents. This issue was the subject of considerable discussion at pages 14 to 16 of the transcript. The Arbitrator noted Fletcher’s objection then stated (page 15) “Can we go through the evidence and we will make a decision about that …”
The evidence was that Mr Barrow had two children who resided with their mother near Kempsey. Mr Barrow’s wife apparently worked fulltime. During addresses at page 66 of the transcript, Mr Barrow’s Counsel conceded that the claim was made late and may cause some prejudice to Fletcher. At page 67, Fletcher’s solicitor stated: “… in terms of the dependency we are not in a position to meet it. It’s only been raised today. We have not had the opportunity of investigating it. The amendments should not be allowed.”
Dependancy is defined in section 4 of the 1998 Act as “… Such members of the worker’s family as were wholly or in part dependant for support on the worker …”
There was evidence from Mr Barrow and in some of the documents before the Arbitrator as to the dependency of the children. Nothing was put by Fletcher’s solicitor as to any particular prejudice on this issue, merely that “… we have not had the opportunity of investigating it.”
Nevertheless, given the lateness of the amendment, that is, during the course of the Arbitration hearing, it was appropriate for the Arbitrator to have allowed further investigation of this issue particularly in light of his ultimate finding that Fletcher, as ‘last insurer,’ was liable to pay the award.
This reflects an inappropriate exercise as the Arbitrator’s discretion such that procedural fairness was denied to Fletcher on this issue. The impact of this error I will discuss at the conclusion of the appeal.
The ‘Disease’ Error
Fletcher makes three submissions on this point as follows:
“1. The Arbitrator has erred in purporting to find that the Applicant’s condition constitutes a disease process and has failed to give adequate reasons for this purported finding.
2. The Arbitrator has erred in failing to properly consider the application of section 16 (of the 1987 Act) and has erred firstly in considering the deemed date of injury to be 23 May 2002 in circumstances where the applicant’s first period of incapacity substantially preceded that date … in addition, the Arbitrator erred in purporting to find that the Applicant was incapacitated at all on or after 23 May 2002 in circumstances where the Applicant carried out his normal job right up until that date and where his employment ceased by reason of misconduct and not by reason of any alleged incapacity.
3. In addition, the Arbitrator erred in failing to consider the application of section 16 (of the 1987 Act) and in particular failed to determine the compensation payable (if any) is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease and failed to determine that the employer for whom the Applicant had carried out casual security work. In this regard, the Arbitrator failed to have any, or in the alternative, proper regard to the opinion of Dr Benanzio … that the Applicant had to cease that casual security work ‘… because strains were aggravating symptoms’”.
At paragraph 21 of the ‘Statement of Reasons’ the Arbitrator stated:
“The preliminary issue which has to be determined in this matter is whether the Applicant’s medical condition is as a result of an injury which consists in an aggravation, acceleration, exacerbation or deterioration of a disease.”
The Arbitrator then proceeds to summarise seven specialist’s diagnoses. At paragraph 23 he stated:
“The various Medical Reports describe the Applicant’s medical condition as tendonitis or capsulitis in the right shoulder and it is further described as a degenerative condition by the majority of the Medical Practitioners. The following Statement by the treating Orthopaedic Surgeon sums up the condition as follows: -
‘This gentleman has evidence of rotator cuff and bicipital tendonitis as a result of over use and repetitive trauma at work’
On the basis of this opinion from the treating doctor and the evidence of the Applicant, I am satisfied that the Applicant is suffering from an aggravation of a disease being the failure of the right shoulder to cope with the repeated stresses imposed upon it at the Respondent’s work place. I further find that these stresses are a substantial contributing factor to the injury … the aggravation of a disease process triggers section 16 of the 1987 Act and deems the date of injury as the date of the worker’s incapacity which in this instance is 23 May 2002.”
There is no doubt that Mr Barrow’s symptoms commenced sometime in the early to mid 90’s. This was his evidence in his initial statement annexed to the application. He gave lengthy evidence on this issue to the various questions put to him as set out in the transcript. However, as the Arbitrator pointed out at paragraph 25:
“My impression is that he (Mr Barrow) is a person who has little education and found it difficult to understand and appreciate the issues in his case. I am satisfied Mr Barrow is an honest witness and that the evidence that he gave was truthful and he attempted to do the best that he could to provide answers to the questions put to him.”
At this point, the Arbitrator then sets out a Chronology of events as he understands them given the totality of the evidence.
At paragraph 27, the Arbitrator noted:
“The Applicant has provided histories to eight Medico-Legal Specialists and his own General Practitioners and treating Specialists. The histories given to each doctor are not consistent and vary greatly as to when the onset of particular symptoms occurred. Each of the specialists have commented in their reports that they had considerable difficulty in obtaining a sequential history. I am not greatly assisted by the 8 Medico-Legal Specialist’s Reports as they are each based on a different medical history as against the full history that emerged from the oral evidence of the Applicant at the arbitration.”
The “full history” from Mr Barrow as the transcript disclosed, was often inconsistent and not responsive, but the clear thrust of his evidence, supported by the medical reports, records and other documentary material was that he suffered increased symptoms in October to December 2000 causing him to finally seek specialist treatment from Dr Riskallah on 3 January 2001. Prior to that, Mr Barrow, despite symptoms from time to time, had remained at work on normal duties. He was reviewed by Dr Riskallah in March 2001 where he reported some relief from the cortisone injection he has received in January 2001. Mr Barrow at that stage informed Dr Riskallah, as recorded in the report of 20 March 2001, that “… the pain is not severe enough for him at this stage to warrant surgical treatment.” Dr Riskallah concluded in that report: “If in the future, the pain recurs again Thomas will be a candidate for an endoscopic subacromial decompression and shoulder arthroscopy with debridement of his biceps anchor.”
Mr Barrow next consulted Dr Riskallah on 3 June 2002 with a history that he had “… good pain relief until recently. His pain however recurred again which is interfering with his job and activities of daily living.”
Meanwhile, on 23 May 2002 Mr Barrow was terminated from his employment for reasons he conceded were unrelated to his injury.
The circumstances surrounding Mr Barrow’s symptoms and medical treatment just prior to his termination are not entirely clear. Fletcher had included in its reply an extensive list of first aid attendances by Mr Barrow from February 1991 to August 1999, whilst CGU was on risk, but nothing thereafter. The records of ‘the Medical Practice’ revealed that Mr Barrow consulted that practice in November and December 2001 with “right shoulder inflamed. Seen Dr Riskallah before … awaiting surgery …” with the balance of the notes indecipherable.
It is also noted that Mr Barrow apparently suffered an injury to his neck in a frank accident on 8 April 2002 whilst at work.
The records from the medical practice also confirm that Mr Barrow consulted that practice on 20 May 2002 with “chronic right shoulder pain”. The notes are not particularly clear but suggest that the “next step” for Mr Barrow was to return to Dr Riskallah to consider surgery. This proposition is supported by the ‘form letter’ dated 7 June 2002 by way of referral from Fletcher to Dr Riskallah to which I have referred previously.
In summary, all this evidence is consistent with the Arbitrator’s ultimate determination that Mr Barrow suffered an injury by way of a disease. There was certainly evidence that symptoms started in the 1990’s, but there was no evidence of incapacity at that time. The evidence disclosed, as the Arbitrator summarised it at paragraph 26 of the ‘Statement of Reasons’:
“… The right shoulder condition has deteriorated markedly between early 2000 and the date of his termination of his employment. The First Aid notes show a history of conservative treatment of the right shoulder until the year 2000 when the Applicant is referred by his General Practitioner to an Orthopaedic Specialist .. the Applicant then further complains in 2001 about recurring problems as a result of his work activities at the Respondent’s premises and it is at that point of time, his treating specialist recommends an operation to investigate and assist in the resolution of his medical problems.”
Fletcher’s submission that the Arbitrator erred in finding that Mr Barrow was incapacitated at all on or after 23 May 2002 is not supported by the evidence.
It is true that Mr Barrow was performing his normal work at the time he was terminated but in circumstances where he clearly had some disability with his shoulder consistent with his attendance on the medical practice on 20 May 2002 just three days prior to his termination. The need for treatment and surgery seems to have been acknowledged by Fletcher in its referral to Dr Riskallah of 7 June 2002, despite it terminating Mr Barrow’s employment on 23 May 2002.
As the Arbitrator pointed out at paragraph 24 of the ‘Statement of Reasons’: “The time of incapacity in these circumstances must be the date of last employment as the worker was on the open labour market from 23 May 2002 and as such became partially incapacitated at that date.”
The concept of “the open labour market” is particularly relevant in this case. As the Arbitrator rightly points out that at the time Mr Barrow was terminated, he had to, as it were, ‘sell himself’ with his disabilities on the “open labour market” and it is that market that is determinative in any assessment of weekly benefits. As Jacobs JA said in Metropolitan Coal Company Limited v Duffy (1996) 67SR (NSW) 163 (at 168):
“… The question is whether the admitted employment injury has affected the value of the worker on the labour market … The fact that his previous job is open to him and that he is able to carry it out are no doubt very important elements in determining whether the injury has affected the value of the worker on the labour market. However, they are not conclusive and, particularly if his pre-injury employment is a suitable employment as a result of particular circumstances of the Applicant’s position, it does not follow as a matter of law that the Applicant has suffered no incapacity for work.”
In Steggles Pty Limited v Aguirre (1998) 12 NSWLR 693 Priestly JA, quoting from Atkin LJ in Hamilton v Shelton Iron and Steel & Co Limited (1926) 96 LJKB 295 said:
“… If (the partially incapacitated worker) gives up a job of his own accord, it may very well be found by the Judge that in fact he was able to earn those wages, because except for his own fault he would be in that employment still earning those wages. That is a matter to be taken into account: but if the job has ceased, then it seems to me it matters not why it has ceased … the job, at any rate, is then at an end and the Judge has to determine whether or not the man is able to earn in the labour market the wages, and if so, at what rate, taking into account the fact that he was when last employed earning the particular wages that he received from his employer.”
In other words, an enquiry must be made as to whether the compensable injury impacts in a negative way on the worker’s capacity to earn in the open labour market.
In any event, Mr Barrow gave evidence (page 29 transcript) that at the time he was terminated: “I already had the doctor’s appointment … to go and see the doctor … I reckon that’s why they sacked me.” This statement is simply one piece of evidence in the picture. The totality of the evidence was sufficient for the Arbitrator to find that Mr Barrow had a partial incapacity on the open labour market as at 23 May 2002.
As to Fletcher’s submission that it was not the ‘last employer’ who employed Mr Barrow in work that contributed to the aggravation of a disease, reliance is placed upon the statement in a report of Dr Benanzio dated 6 February 2003 that: “At the end of December 2002 he [Mr Barrow] had to give up this job [casual security work] because strains were aggravating the symptoms”.
Mr Barrow was cross-examined at length on this issue particularly at pages 33 – 39 inclusive of the transcript. Mr Barrow was adamant that his casual security work for approximately 20 hours per week at the Commercial Hotel in Dubbo was not heavy. When it was suggested to him (paragraph 39 transcript) that: “… Some of the duties at the Commercial Hotel would hurt your shoulder?” He replied: “Well, they never in the past, so I don’t know why they would in the future. I had a few smacks in the mouth and that.”
Mr Barrow gave evidence that the work could at times be physical if he had to throw someone out of the Hotel and that he had been involved on occasions in some altercations. He admitted that he could do his duties at the Hotel despite his symptoms but could not continue at Fletcher because “… I reckon I needed the operation – I need something done with me shoulder.” He said to Fletcher’s solicitor (page 40 transcript) “Well you go and do my job at the abattoirs and do my job at the Commercial. You’ll understand what I am talking about.”
Notwithstanding Dr Benanzio’s comment, Mr Barrow’s oral evidence was clear, and a similar history was given to a number of doctors. In other words, the evidence was sufficient for the Arbitrator to determine that the last relevant employment was that at Fletcher, and his findings on that issue do not disclose any error.
Fletcher also submits that the Arbitrator failed to properly consider the implications of the consultation by Mr Barrow with Dr Riskallah on 8 June 2002 and: “… has failed to have regard to the fact that the job referred to at that time was the security work being carried out by the worker.” This statement must be read in context. It is noted that Mr Barrow had been referred to Dr Riskallah consequent upon his consultation with his GP on 20 May 2002. Dr Riskallah in his report dated 1 July 2002 noted: “His right shoulder pain has recurred again and he is having difficulty performing activities of daily living and the duties of his job.” The letter is addressed to Fletcher, not to the Hotel. Whilst it is not entirely clear what particular job Dr Riskallah is referring to, the inference is that it is the work at Fletcher. I can see no error in this regard.
The ‘Section 40’ Error
Fletcher makes a number of submissions on this point as follows:
“1. The Arbitrator has erred in considering what constitutes a partial incapacity and has erred in purporting to find the Applicant partially incapacitated. In addition, the Appellant submits that the Arbitrator has erred in purporting to find (or assert) that the worker was dismissed by the employer due to a failure to perform ‘cheeking’ duties.
2. The Appellant submits that the Arbitrator has erred in considering the assessment of entitlements under s.40 of the Act and has erred in assessing the amount the Applicant would have been earning but for the injury and in assessing the Applicant’s ability to earn.”
As to the first submission, I do not understand its significance. It was conceded by Mr Barrow that he was dismissed for failure to carry out certain tasks but in any event, for reasons unrelated to his injury. No significance ought be attached to that latter statement.
The Arbitrator dealt with the incapacity and section 40 entitlement in detail in paragraph 29 of the ‘Statement of Reasons’, setting out “… The five steps required to make an award under s40.” The Arbitrator determined that the amount Mr Barrow would have been earning but for injury was $942.00, his actual earnings as a security guard were $400.00, and in the exercise of his discretion, concluded that: “The Applicant has in his oral evidence to his credit stated that he will do any job that he can get and I feel that he has some residual capacity to earn income over and above what he earns as a security guard and for this reason, I conclude that the Applicant would be able to earn in suitable employment an amount of $450.00 gross per week.”
True, there was evidence given by Mr Barrow under cross-examination by both CGU’s Counsel and Fletcher’s Counsel that (page 46 transcript) “I can do anything. If you put me on the job, I can do it.”
At page 18 of the transcript in response to the question: “Could you work more than 20 hours at the pub if you were offered the work?” Mr Barrow replied: “Well there is only – in security there is only 20 hours there. The other jobs, if you got your licences … I don’t know. No, I can’t add up very well. So I don’t know if I would be able to do the till. I don’t know what else I could do.”
When asked if his present security job “were offered to you on a fulltime basis could you do it?”, Mr Barrow replied: “Yeah, well yeah. I wouldn’t like to do it when I am fifty or sixty, but I reckon I could do it now.”
Fletcher filed a Wage Schedule asserting that comparable earnings were $587.00 per week. The Arbitrator rejected that document noting at paragraph 16 of the ‘Statement of Reasons’
“The Applicant’s Wage Schedule claims $942.00 per week … based on Group Certificates attached to the Schedule. The Respondent’s Wage Schedule alleges comparable wage earnings of $587.00 per week. There is no documentation to support the Respondent’s Wage Schedule.”
In summary then, the Arbitrator’s findings were open on the evidence before him. My task on appeal is not to ‘rehear’ the matter with a view to ‘re-determining’ the Arbitrator’s decision. An appeal is by way of review where the power of the Commission to confirm, revoke or substitute a new decision is exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by some legal, factual or discretionary error (the Ross v Zurich Workers Compensation Insurer (2002) NSWWCCPD 7).
Whilst there is some evidence to suggest that Mr Barrow’s capacity to earn was greater than that found by the Arbitrator, he was clearly cognizant of factors such as the labour market (in Dubbo) readily available to Mr Barrow and his limited education. The Arbitrator’s finding, in the exercise of his discretion, was not such as could be described as demonstrably unfair or unreasonable or against the weight of evidence. I can see no error in his determination on this issue.
The ‘Adequacy of Reasons’ Error
Fletcher submits that: “… The Arbitrator has erred in failing to give any, or any adequate reasons for the rejection of the medical and other evidence relies [sic] on by the Appellant.
As the Arbitrator pointed out at paragraph 27, Mr Barrow consulted at least seven or eight medico-legal specialists. The Arbitrator concluded:
“The histories given to each doctor are not consistent and vary greatly as to when the onset of particular symptoms occurred. Each of the specialists have commented in their reports that they had considerable difficulty in obtaining a sequential history. I am not greatly assisted by the 8 Medico-Legal Specialist Reports as they are each based on a different medical history as against the full history that emerged from the oral evidence of the Applicant at the arbitration.”
The Arbitrator concluded at paragraph 28:
“On balance I prefer the evidence of Dr Riskallah as he has seen the Applicant on four occasions over a period of eighteen months and as the treating orthopaedic surgeon his opinion is to be preferred to the competing medico-legal specialists engaged by the parties.”
As stated previously, the Arbitrator is not required to set out lengthy reasons in order to comply with the legislation but nevertheless, the Arbitrator is required to apprise the parties of the essential grounds upon which the decision rests (see Mahony JA in Soulemezis v Dudley (Holdings) Pty Limited [1987] 10 NSWLR 247).
It is noted that several of the doctors qualified either by Fletcher or CGU, whilst noting Mr Barrow’s difficulty as an historian, nonetheless accepted his complaints as genuine. Dr Bornstein, for example, in his report dated 15 July 2004 noted: “The patient was easy to assess, because he was co-operative.”
The Arbitrator made reference to all the reports before him. They were numerous, and to expect a detailed analysis of each report would be unreasonable and against the objectives of the Commission.
As Deputy President Fleming said in Mayne Health Group v Sandford [2002] NSWWCCPD 6:
“To succeed on the ground of inadequacy of reasons it must be established that not only are the reasons inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”
I can seen nothing in the Arbitrator’s determination and ‘Statement of Reasons’ that would suggest that he has failed to fairly and lawfully determine this claim such that Fletcher has failed to demonstrate any error by the Arbitrator on this issue.
CONCLUSION
Many of the submissions made by Fletcher are inaccurate or simply wrong and not founded on the evidence before the Arbitrator, in particular, its assertion that Mr Barrow failed to give notice of injury or make a claim.
The Arbitrator’s determination was open to him on the whole of the evidence before him, in particular, the more than 70 pages of oral evidence by Mr Barrow.
Save for the issue of dependency, I can see no error of law, fact or discretion in the Arbitrator’s determination.
Fletcher has been denied procedural fairness in relation to the issue of dependency. However, the Arbitrator’s primary findings as to Mr Barrow’s pre-injury earnings, actual earnings and ability to earn are confirmed.
The matter is to be remitted to the Arbitrator at first instance solely for determination of the dependancy issue.
DECISION
1. Paragraphs 3, 4, 5 and 6 of the decision of the Arbitrator dated 6 April 2005 are confirmed.
2. Paragraph 1 and 2 are revoked and the following substituted:
(i)That the Respondent pay the Applicant weekly compensation pursuant to section 40 of the 1987 Act from 23 May 2002 to date and continuing.
(ii)The rate of compensation pursuant to section 40 of the 1987 Act in respect of the award set out in paragraph (ii) above is remitted to the Arbitrator at first instance to determine the issue of dependency only.
COSTS
Fletcher International Exports Pty Limited is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
14 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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