George v Qube Ports Pty Ltd
[2017] WADC 97
•2 AUGUST 2017
GEORGE -v- QUBE PORTS PTY LTD [2017] WADC 97
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 97 | |
| Case No: | APP:21/2017 | 19 JULY 2017 | |
| Coram: | STEVENSON DCJ | 2/08/17 | |
| PERTH | |||
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| PDF Version |
| Parties: | OWEN GEORGE QUBE PORTS PTY LTD |
Catchwords: | Appeal Workers' Compensation and Injury Management Act 1981 Leave to appeal Question of law Adequacy of reasons Failure to take into account relevant considerations Standard of proof Findings of fact without evidence Failure to make relevant findings Whether appellant suffered permanent total incapacity for work |
Legislation: | Workers' Compensation and Injury Management Act 1981 |
Case References: | Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Hayter v HWE Mining Pty Ltd [2017] WADC 26 Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146 Minister for Education v Shire of Northam [2016] WADC 42 Nankivell v Insurance Commission of Western Australia [2017] WASCA 143 Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361 R v Burdett (1820) 4 B & Ald 95; (1820) 106 ER 873 Velez Pty Ltd v Tudor [2011] WASCA 218 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
QUBE PORTS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram : ARBITRATOR NUNN
File No : A 33352 of 2016
Catchwords:
Appeal - Workers' Compensation and Injury Management Act 1981 - Leave to appeal - Question of law - Adequacy of reasons - Failure to take into account relevant considerations - Standard of proof - Findings of fact without evidence - Failure to make relevant findings - Whether appellant suffered permanent total incapacity for work
Legislation:
Workers' Compensation and Injury Management Act 1981
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Appellant : Mr H Evans-Mete
Respondent : Mr J J Sheldrick
Solicitors:
Appellant : Evans Injury Lawyers
Respondent : Hall & Wilcox
Case(s) referred to in judgment(s):
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Hayter v HWE Mining Pty Ltd [2017] WADC 26
Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146
Minister for Education v Shire of Northam [2016] WADC 42
Nankivell v Insurance Commission of Western Australia [2017] WASCA 143
Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361
R v Burdett (1820) 4 B & Ald 95; (1820) 106 ER 873
Velez Pty Ltd v Tudor [2011] WASCA 218
- STEVENSON DCJ:
Introduction
1 This is an appeal from a decision made on 10 March 2017 by Arbitrator Nunn of the Workers' Compensation Arbitration Service dismissing an application by Mr George (the appellant) for an order pursuant to s 217(1) of the Workers' Compensation and Injury Management Act 1981 (the Act) that he is permanently and totally incapacitated for [all] work as a result of a compensable injury under the Act.
2 The appeal notice contains five grounds of appeal. The matters raised can be dealt with without reviewing afresh all the evidence and the issues before the learned arbitrator. This is not an appeal where the issues raised require this court to make findings on the ultimate issues determined by the primary decision-maker.
3 In my view, for the following reasons, the appeal must be dismissed.
Factual background
4 The appellant, Mr Owen George, was born on 22 August 1952 and is presently 64 years old.
5 The appellant commenced employment with Qube Ports Pty Ltd (the respondent) as a road train driver in March 2012.
6 On 16 January 2014, the appellant sustained an injury to his right shoulder while unlocking latches on truck trailers in the course of his employment (the injury).
7 The appellant continued working on restricted duties before the pain became so severe that he could not work. He later returned to work on full duties before again finding, on 7 May 2014, that the pain in his right shoulder was so severe that he could not work.
8 On 15 May 2014, the appellant made a worker's compensation claim as a result of the injury. The respondent accepted liability for the claim in June 2014.
9 In January 2015, the appellant attempted a return to work programme manning a ship discharge in Geraldton, but the programme failed within days because of his injury. According to the appellant, he has not been able to participate in any further return to work programmes because of his injury.
10 The appellant last worked for the respondent as a road train driver on 7 May 2014. In fact, the appellant has worked as a road train/truck driver for over 40 years and maintains 'it is the only thing I'm qualified at'.
11 On 2 May 2016, the respondent terminated the appellant's employment because of his injury. Prior to this, the appellant had received the prescribed statutory limit of weekly payments of compensation of over $217,970 and, accordingly, his weekly payments ceased.
12 As noted by the arbitrator in his reasons for decision dated 10 March 2017 (the decision) at [8], there is no, or no significant, contest in regards to the relevant facts which informed his decision. Paragraph 8, which is not challenged, contains a useful summary of the facts.
13 On 31 May 2016, the appellant filed an application for arbitration which stated the issues in dispute as follows:
1. The applicant worker alleges that he has permanent total incapacity resulting from his compensable injury of 16 January 2014 and that his social and financial circumstances justify an extension of the prescribed amount to $163,477.50 because he has exhausted the prescribed amount.
2. The respondent employer alleges that the worker has partial capacity for work.
14 The respondent filed a reply to the application for arbitration on 22 June 2016 disputing, among other things, that the appellant has sustained a total and permanent incapacity for work. Accordingly, the respondent contends that the appellant is not entitled to an extension of the prescribed amount.
15 The application for arbitration was referred to a conciliation conference. Conciliation was unsuccessful, with the parties being unable to reach any agreement.
16 The arbitration was heard by Mr S Nunn on 25 January 2017. Counsel, who appeared on the hearing of this appeal, also appeared before the learned arbitrator.
17 For the purpose of this appeal, the court has been provided with the transcript of the arbitration hearing on 25 January 2017, the witness statements, medical and vocational reports and other documents filed by the parties, including their written submissions in the arbitration proceeding.
18 As mentioned, on 10 March 2017 the arbitrator published his written reasons for decision to dismiss the appellant's application for an order under s 217(1) of the Act because his work injury 'has resulted in the permanent total incapacity for work of the worker'.
19 By an appeal notice dated 30 March 2017, the appellant applied for leave to appeal to this court against the arbitrator's decision of 10 March 2017.
The grounds of appeal
20 After amendment at the hearing, the notice of appeal contained the following grounds of appeal:
1. The learned arbitrator made findings of fact with no evidence to support them.
2. The learned arbitrator failed to give adequate reasons.
3. The learned arbitrator failed to take a relevant consideration into account.
4. The learned arbitrator failed to make relevant findings.
5. The learned arbitrator applied the incorrect standard of proof.
21 The particulars of these grounds of appeal are set out below when dealing with each ground of appeal.
Leave to appeal
22 The appellant is required to obtain leave of the District Court before his appeal against the arbitrator's decision can be heard: s 247(1) of the Act.
23 The appellant relies on s 247(2)(a)(i) as the basis for the grant of leave to appeal. In this regard, the only contentious issue is whether the notice of appeal involves 'a question of law'.
24 The respondent, quite properly, accepts that the grounds of appeal in the appeal notice raise questions of law which, if sustained, would satisfy a grant of leave by the court for the appeal to be heard pursuant to the requirements of s 247 of the Act.
25 The relevant legal principles were referred to by Buss JA in Paradis v Settlement Agents Supervisory Board (2007) 33 WAR 361:
53 An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2). See, in the context of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the observations in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 at 58 - 60 [10] - [18]; Comcare v Etheridge (2006) 149 FCR 522 at 527 [13] - [17]. Section 44(1) of the Administrative Appeals Tribunal Act provides that an appeal from a decision of the Administrative Appeals Tribunal may only be made 'on a question of law'. That provision is not materially different from the provisions of s 105(1) and (2) of the Western Australian Act.
…
55 A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis. See Waterford v Commonwealth (1987) 163 CLR 54 at 77; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257 [146].
56 A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law. See Federal Commissioner of Taxation v McCabe (1990) 21 ALD 740 at 742.
57 A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40. It is not sufficient, however, if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account. See CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183; Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690 at 692. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other. In Xie Mian Shen v Minister for Immigration and Ethnic Affairs, unreported; Fed C of A; 9 August 1995, French J said, at 15 - 16:
'There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of evidence - Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.
The allegations that the tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the tribunal failed to take into account relevant factors.'
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.
27 With respect, I also adopt [27] of the judgment of Goetze DCJ in Hayter v HWE Mining Pty Ltd [2017] WADC 26, where his Honour said:
Paradis was followed in Catholic Education Office of WA v Granitto [2012] WASCA 266 in which Murphy JA, with whom Pullin and Newnes JJA agreed, said:
'53 An appeal "involves" a question of law where either an error of law, or an error of mixed law and fact, is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17. (An appeal of this kind is accordingly broader than an appeal "on a question of law" – …
54 If no question of law can be identified in the appeal as arising from an arbitrator's decision, there is no jurisdiction in the commissioner to grant leave to appeal: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17]. That was a case involving s 247(3) but the point plainly applies to s 247(2) which uses the word 'unless'. It is unnecessary for present purposes to consider whether there are any differences in relation to the operation of the grant of leave contemplated under s 247(2) and s 247(3).
55 Further, in Atanasoska Buss JA (Wheeler and Pullin JJA agreeing) said [21]:
"If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited."
- Later in Atanasoska [32], the court referred with approval to the observations of Pullin JA in BHP Billiton Iron Ore Pty Ltd v Brady [14]:
'In plain cases it might be appropriate to deal with the application for leave to appeal before considering the proposed grounds of appeal, but experience is likely to show that in most cases the application for leave to appeal, and the appeal should be heard together and the question of leave dealt with after considering the merits of the proposed grounds of appeal. If the proceedings are conducted in that way, the commissioner will then be in a position at the end of the hearing to either:
(a) grant leave and uphold or dismiss the appeal, or
(b) refuse leave to appeal.'
Pullin JA also said in that case [15] that the 'commissioner was not bound to accept that questions of law were involved merely because the appellant asserted there were such questions'.
'56 It has been held that an appeal under s 247 is neither a hearing de novo, nor an appeal in the 'strict sense', and that the commissioner, within the constraints marked out by the nature of the appellate process, must conduct a 'real review': Pacific Industrial Co v Jakovljevic [20], [24].
57 Where leave is granted and a review is undertaken, the appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it; the appellant may not simply invite the commissioner just to ignore the arbitrator's decision and start again with a view to having the commissioner substitute his or her own decision for that of the arbitrator: Pacific Industrial v Jakovljevic [20], [26].'
28 It is beyond doubt that, if the arbitrator applied the incorrect standard of proof, as alleged in the fifth ground of appeal, this would involve a question of law. Also see Massih v Electricity Networks Corporation t/as Western Power [2016] WADC 146 [28].
29 In my view, the grounds of appeal raised by the appellant involve questions of law. Accordingly, I grant the appellant leave to appeal as I am satisfied that the jurisdictional pre-condition for this court to hear the appeal required by s 247(2)(b) of the Act is fulfilled.
The nature of the appeal
30 Section 247(5) of the Act provides that the appeal 'is to be by way of review of the decision appealed against'. Further, s 247(7) provides that on hearing an appeal the District Court may affirm, vary, or quash the decision appealed against; or substitute and make, in addition, any decision that should have been made in the first instance.
31 In this regard, I note the appellant, on the assumption that the appeal is successful, seeks an order that the prescribed amount for weekly payments of compensation be extended by $163,425 (the full amount available) and that the respondent pay weekly payments of compensation from the date the prescribed amount was exhausted - at the rate applicable on that date until the full amount is paid.
32 Because the arbitrator was not persuaded that the appellant is permanently and totally incapacitated for work, he did not, in his reasons for decision, determine pursuant to s 217(3) whether the further payment sought should be made 'having regard to the social and financial circumstances and the reasonable financial needs' of the appellant. The failure by the arbitrator to make a determination in this regard is the subject of the second ground of appeal.
33 In view of the above, and bearing in mind the specialist nature of the jurisdiction the subject of the arbitration decision-making of the Workers' Compensation Arbitration Service, if the appeal had been successful, I would have made an order remitting the application to be heard afresh by a different arbitrator.
34 By reason of the conclusion I have come to, namely that the appeal must be dismissed because none of the grounds of appeal have been made out, there is no requirement to give further consideration to the nature of the appeal hearing itself.
The arbitrator's decision of 10 March 2017
35 The issue required to be determined by the arbitrator was whether the requirements of s 217(1)(a) existed in fact. The question for the arbitrator was whether the appellant's injury to his right shoulder sustained on 16 January 2014 in the course of his employment with the respondent 'has resulted in the permanent total incapacity for work' of the appellant.
36 The other pre-conditions for the operation of s 217 contained in s 217(1) are not in dispute, in particular that the total weekly payments by way of compensation payable under cl 7 for the injury had reached the prescribed amount.
37 In summary, the arbitrator was not persuaded on the evidence and materials before him that the appellant had discharged the onus of proof such that he was satisfied on the civil standard of proof that the appellant was permanently and totally incapacitated for [any] work.
38 In reaching his decision, it would seem the arbitrator fully and appropriately considered all the relevant evidence and factual material before him. The legal concepts of 'permanence', 'total incapacity' and the statutory framework binding the arbitrator as the primary decision-maker were all dealt with in the decision.
39 On the hearing of the appeal, counsel for the appellant, quite properly, accepted that the arbitrator correctly stated the issue for determination as:
Mr George must prove that it is more likely than not that for the foreseeable and indefinite future he is unable to compete for work in a market reasonably open to him by virtue of a combination of his physical condition and his vocational skills [21].
40 At [29], the arbitrator noted that the appellant
contends that he is either permanently totally physically unfit for any work or that, by virtue of his vocational limitations, he is unable to exercise any capacity for employment he may be physically fit for' (emphasis added).
41 This basis of the appellant's application seeks to rely on total incapacity pursuant to cl 7(1).
42 The arbitrator in his decision, [31] to [94], reviewed and considered the evidence and supporting materials both from the appellant himself - and medical and other experts - as to the appellant's physical capacity and restrictions, as alleged, for work.
43 As mentioned, the hearing of the appeal did not descend into a detailed analysis of the evidence relied upon by the arbitrator for his decision and, in my view, it is not necessary to do so in great detail for the purpose of this appeal. The reason, in part, is because of the basis on which the appeal is maintained, in particular, for example, the submissions made in support of the first ground of appeal, to which I will come.
44 Having considered and carefully assessed the evidentiary material, the arbitrator made the following critical findings of fact and opinion (all of which, in my view, are open on the evidence):
1. On the basis of the expert medical evidence, I am able to find that Mr George's physical restrictions are likely to be permanent: [88].
2. The evidence supports a finding that Mr George is permanently unfit for truck driving duties: [90].
3. However, I am unable to conclude that Mr George is permanently physically unfit for all employment: [91]. (emphasis added)
4. Despite Mr George's physical restrictions, he has the physical capacity to work in such roles as weighbridge operator, gatekeeper, courier driver, light carer's roles or in clerical or sedentary office positions: [92].
5. Despite suffering from permanent physical restrictions, I am unable to find that Mr George is permanently totally physically unfit for all work. However, he retains a reduced physical capacity for employment: [93]. (emphasis added)
6. I am unable to find that Mr George is permanently totally incapacitated for (all) work by reason of his physical restrictions as alleged: [94].
45 The arbitrator, in his reasons for decision, then proceeded to consider the evidence in relation to the vocational capacity and skills of Mr George. In this regard, the arbitrator made findings which included:
1. Acceptance of the vocational assessment evidence from Dynamic Focus based on interviews with Mr George which largely corroborates his evidence of his vocational history: [106].
2. Mr George possesses a range of vocational skills including driving skills, mechanical knowledge, practical experience of various plant and equipment, manual handling skills, organisational and planning skills: [107].
3. Although it is not certain that Mr George has no computer skills at all, I infer that his knowledge and use of computers is very limited: [107].
4. Having identified that Mr George has physical capacity for light courier work, gate-keeping or weighbridge operating jobs, vocationally there appears to be no impediment to Mr George working as a courier driver, especially given his transport industry experience: [108].
5. It is uncertain whether there is any vocational limitation bearing upon Mr George's ability to work as a gatekeeper given that the work trial arranged by the respondent involved (at least some) computer use. On this basis, there is otherwise no indication of whether Mr George would not be vocationally equipped to work as a gatekeeper: [109].
6. The evidence establishes that the computer usage requirements of a weighbridge operator would render Mr George vocationally incapable of performing this work: [110]. This finding is contra the lack of satisfaction by the arbitrator with respect to any vocational requirement for computer usage working as a gatekeeper. As canvassed with counsel for the appellant during the hearing of the appeal, this might be because a weighbridge operator is in fact required to work with machinery as opposed to a gatekeeper whose primary work duties are, I infer, more sedentary and administrative.
7. I am unable to conclude that any incapacity Mr George may suffer by reason of his computer illiteracy is permanent: [112]; (in other words, to the extent that the appellant sought to contend that his lack of computer skills was a barrier to obtaining employment other than as a truck driver, the arbitrator did not accept that he could not acquire sufficient computer skills in the future, if he wished to, in order to obtain work).
8. Mr George has not proven that he is totally incapacitated by reason of his vocational restrictions or that any incapacity he may suffer as a result of this can be said to be permanent when he has not proven that the computer courses available to him would not be of any vocational assistance to him: [114].
9. The vocational requirement to re-train by reference to computer skills has only been shown to be necessary in regards to the role of weighbridge operator, and there is no evidence that this training is necessary for gatekeeper or courier driver roles: [115].
46 For these reasons, the arbitrator was not persuaded by the appellant that he is totally physically incapacitated for work. On the contrary, the arbitrator considered and found that the appellant 'retained a permanent partial capacity for employment as a courier driver or gatekeeper': [122]. Given his ultimate conclusion, I infer the arbitrator there is speaking of the psychical component of the test.
47 Critically, the arbitrator was not persuaded that the appellant is restricted from exercising his partial physical capacity by reason of any vocational restriction, specifically because of his lack of computer training: [123].
48 Further, the arbitrator found that the only potential restriction as to courier driving was the weight lifting restriction (5 kg per arm or 10 kg in total) and that there was no evidence that such a restriction could not reasonably be accommodated by an employer: [123].
49 As mentioned, to the extent that the appellant had any vocational incapacity arising out of his lack of familiarity with computers, the arbitrator was not persuaded that any such vocational incapacity is permanent: [125].
50 In summary, for all of these reasons, the arbitrator was not persuaded that the appellant is permanently totally incapacitated by reason of his physical restrictions or vocational experience for the purpose of a determination of total incapacity pursuant to cl 7 of sch 1 of the Act.
51 The arbitrator also considered whether the appellant suffered from 'odd lot' incapacity, that is, is he totally incapacitated for work except for some special employment of an unusual kind? In this regard, the arbitrator was not persuaded that Mr George could establish total permanent incapacity for work on the basis of 'odd lot' arguments: [132]. The arbitrator considered other aspects of the evidence for the purpose of making this finding about which there is no need to descend into detail for this appeal.
52 Finally, the arbitrator dealt with the contention by the appellant that deemed total incapacity could be proved by reference to cl 8 of sch 1.
53 I note at [160] the arbitrator says the appellant withdrew his arguments that he could be deemed to be totally incapacitated by reference to his attempts to secure work as a truck driver because it was accepted he had not been certified as fit for this work (consistent with the evidence and his work history subsequent to his injury).
54 Finally, with respect to this basis of alleged total and permanent incapacity, the arbitrator held that the criteria of cl 8 could not be met because the appellant had never recovered insofar as to be fit for any of the employment positions he was seeking: [162]. In other words, the work was beyond his physical capacity in any event.
55 In his reasons for decision, the arbitrator found the appellant was a compelling witness [107]; and that he was an honest and direct witness, and generally reliable and credible: [83]. Accordingly, the credibility, that is, the honesty and reliability of the appellant as a witness, was not determinative of the outcome.
56 In summary, the arbitrator found that the appellant had a physical capacity, notwithstanding his permanent physical restrictions, such that he retained a reduced physical capacity for employment as a light courier driver or gatekeeper. The vocational evidence indicated that there is re-training (which the appellant had not undertaken) that would enable him to re-enter alternate employment opportunities.
57 The arbitrator was not persuaded that there was no capacity for the appellant to undertake vocational training. Accordingly, there was no permanent vocational incapacity resulting in him being totally and permanently incapacitated for work.
58 In his conclusion at [176], the arbitrator made the following finding:
… whilst I accept that Mr George suffers from permanent physical restrictions, in my view, the evidence supports a finding that Mr George retains a physical capacity to work as a courier driver or gate keeper. Mr George has not led sufficient evidence to prove that he could not, by reason of his situation or factors personal to him, compete for work for which he is physically and vocationally suited or that any restrictions he is subject to could not realistically be accommodated.
59 It is now necessary to turn to the grounds of appeal. It is convenient to deal with the fifth ground of appeal first.
Ground 5 – standard of proof
60 This ground of appeal asserts that the arbitrator applied the incorrect standard of proof. The appellant contends the arbitrator erred in law in [12] and [20], whereby he applied the incorrect higher standard of proof in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
61 Paragraphs [12] and [20] of the arbitrator's decision are as follows:
As the applicant, Mr George carries the burden of establishing his case to the requisite standard. This is consistent with the application of the principle that 'he who asserts must prove'. See for example Westralian Farmers Cooperative Ltd v Bunce (unreported; FCt SCt of WA; Library No 7691; 31 May 1989), Mitchell (cited above). Accordingly, Mr George has the obligation to prove his case to the balance of probabilities and must lead sufficient evidence to persuade me of the likelihood of the facts necessary to answer his case in the affirmative. See Briginshaw v Briginshaw (1938) 60 CLR 336. Reference to this does not suggest application of anything other than the civil standard of proof only affirmation that it is incumbent on the parties to bring clear and cogent evidence to prove their case.
[3 Except for a subtle change in the evidentiary onus required in 'odd lot' situations, see below]
…
The labour market a person might reasonably be expected to work in depends on the facts of each case and the skills and experience of each person. The onus to prove incapacity lies with Mr George3. In essence Mr George must prove the negative: that he is unfit for jobs utilising skills he may have or that there are no jobs at all for which he is fit. How comprehensive this evidence must be will again, depend on the facts of the case but it is anticipated that some evidence of this nature will be lead in support of an application for incapacity. This might not require an exposition of every job a person can (or cannot) do by virtue of the combination of the person's injury and skill set or the duties specifically required by any particular job however, unless the matter is on its facts plainly obvious some evidence must be advanced on this front. See for example, Roney v Accomodation West Pty Ltd, C10-2009, 17 April 2009 at [34] and by analogy McGinnniss v Westralian Forrest Products Pty Ltd, CM-138/00, 9 February 2001 at [20]. (emphasis added)
62 Counsel for the appellant, quite properly, accepts that the arbitrator expressly stated that the appellant was obliged to prove his case on the balance of probabilities. This is made plain by the penultimate sentence in [12] and, in my view, is the only interpretation that can be put upon the words used in the context of the paragraph and the surrounding paragraphs.
63 The genesis of this fifth ground of appeal appears to arise out of the reference to the need for 'clear and cogent evidence' in the last sentence of [12]. In the mind of the appellant, this phrase raises the possibility that the arbitrator misdirected himself as to the standard of proof to be applied for fact-finding.
64 The appellant seeks to link this phrase with a similar phrase referred to by Dixon J in Briginshaw v Briginshaw (362), when he cited dicta by Best J in R v Burdett (1820) 4 B & Ald 95; (1820) 106 ER 873, who used the phrase 'strong and cogent' in relation to the quality of evidence of the important matter of corpus delicti (the substantial and fundamental fact necessary to prove the commission of a crime).
65 It is submitted by the appellant that the reference to 'clear and cogent evidence' by the arbitrator 'is akin to a Briginshaw standard' (ts 6); 'the arbitrator looked at the evidence through the lens of clear and cogent evidence which is the Briginshaw standard', and not 'through the lens of s 188 of the Act' (ts 8).
66 I understand the appellant's submission to be that the arbitrator applied a higher standard of proof than the civil standard because he required, in effect, as a pre-condition that the evidence sought to be relied upon be 'clear and cogent'.
67 The appellant was unable, and did not attempt, to point to any finding or conclusion of the arbitrator where it could reasonably be argued that his reasoning based on the evidence before him exposed or admitted to a satisfaction of persuasion being reached on anything other than a balance of probabilities.
68 Putting aside the construction issue of whether the arbitrator, by referring to the need for 'clear and cogent evidence', was thereby, in effect, increasing the standard of proof to a higher level than the civil standard (balance of probabilities), counsel for the appellant in his oral submissions, submitted:
… the arbitrator is requiring clear and cogent evidence as a starter, as a precondition to actually apply common sense are that the appellant submits that clear and cogent evidence is a not a precondition to apply common sense. (ts 11)
69 Counsel for the appellant submitted that the concept of the standard of proof and the quality of evidence are totally connected concepts (ts 9).
70 This further refinement of the ground of appeal suggests that the arbitrator misdirected himself on the basis that he required the evidence to have a quality of, at least, being 'clear and cogent' before it could be relied upon for fact-finding and decision-making. The appellant's submission is that such an approach exacts a higher standard with respect to evidentiary issues than that required by the Act: for example, see s 188.
71 In response, the respondent relies on the fact that the appellant does not complain about any particular findings made by the arbitrator on the basis of a discernible application of the wrong standard of proof. On this basis, the respondent says it is not possible for the appellant to therefore demonstrate any error of law material to the decision.
72 In any event, the respondent refers to Briginshaw and says there is not a third standard of proof; it is either the civil standard or the criminal standard.
73 Counsel for the respondent said a live issue during the arbitration was the importance of the evidence concerning the vocational capacity of the appellant, and availability of training to acquire computer skills necessary for appropriate work. Accordingly, it was submitted that there was not a complete absence of evidence about the relevance of computer training, and this formed an integral part of the ultimate decision made by the arbitrator.
74 Before considering the issues raised by this ground of appeal, it is convenient to set out part of the judgment of Dixon J in Briginshaw's case (360) - (363):
At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded. …
This mode of stating the rule for civil issues appears to acknowledge that the degree of satisfaction demanded may depend rather on the nature of the issue. In the course of a discussion of the matter containing no less wisdom than learning, Professor Wigmore says: - 'In civil cases it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain. But it is customary to go further, and here also to attempt to define in words the quality of persuasion necessary. It is said that to be that state of mind in which there is felt to be a "preponderance of evidence" in favour of the demandant's proposition. Here, too, moreover, this simple and suggestive phrase has not been allowed to suffice; and in may precedents sundry other phrase – "satisfied", "convinced", and the like – have been put forward as equivalents, and their propriety as a form of words discussed and sanctioned or disapproved, with much waste of judicial effort' (Wigmore on Evidence, 2nd ed. (1923), vol. v., sec. 2498). It is evident that Professor Wigmore countenances as much flexibility in the statement and application of the civil requirement as did Mr Starkie. The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. …
This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. …
These illustrations show the good sense of Professor Wigmore's statement that, in civil cases, it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain.
But the development of the two standards of proof or persuasion is the work of the common law.
75 In my view, there is no merit in this ground of appeal, and it must be dismissed for the following reasons.
76 Firstly, on a proper construction of [12] in context with all the other paragraphs under the heading 'General legal principles', it is plain that the arbitrator was fully cognisant that he was obliged to apply the civil standard of proof (on the balance of probabilities) and nothing more or less. He states the appellant must 'prove his case to the balance of probabilities and must lead sufficient evidence to persuade me of the likelihood of the facts necessary to answer his case in the affirmative'. This is a correct statement of the standard of proof and the burden of proof.
77 In [12] the arbitrator, in a separate sentence, refers to Briginshaw. In my view, this reference merely re-affirms what Dixon J said in Briginshaw, that there are only two standards of proof, namely the criminal standard and the civil standard. This is borne out by the next sentence which, in my mind, confirms this.
78 Second, as a matter of plain and ordinary language, the reference to 'clear and cogent evidence' cannot in the context it was used be regarded as a reference to the actual standard of proof to be applied. In my view, it is not reasonably open to infer, by reason of the reference to 'strong and cogent' evidence in the judgment of Dixon J in Briginshaw,that the arbitrator was requiring a higher quality of evidence to be adduced by the appellant in order to attain the civil standard of proof.
79 Third, in any event, as a matter of law, there are only two standards of persuasion, namely the criminal standard of satisfaction beyond reasonable doubt and the civil standard of satisfaction on the balance of probabilities. There is no intermediate level or other standard of proof between these two standards.
80 Fourth, it is beyond doubt that the arbitrator was aware of s 188 of the Act and, in particular, that he was not bound by the rules of evidence but was required to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities and legal forms: s 188(2). The arbitrator would also have appreciated, as he did in his reasons for decision, that he could inform himself on any matter as he thought fit: s 188(3). The arbitrator in [10] expressly refers to these requirements and s 188 of the Act, and expressly notes that 'none of this detracts from the obligation that an arbitrator is to act judicially, with proper regard to the cases advanced by the parties and the evidence led'.
81 Fifth, at [15] the arbitrator referred to the general evidentiary principles summarised at [21] – [32] of Minister for Education v Shire of Northam [2016] WADC 42. The first paragraph is a statement by the judge that findings on the ultimate issue are to be made on the balance of probabilities based on the evidence adduced.
82 Sixth, although not determinative, a similar ground of appeal was mounted against the arbitrator in Massih v Electricity Networks Corporation t/s Western Power which was determined prior to the arbitration. It is reasonable to infer that the arbitrator was alive to the issue raised by the grant of appeal in that case. In any event, in [13] of his reasons, the arbitrator refers to the case and was therefore aware of the decision.
83 Seventh, I am not persuaded the arbitrator made his findings in relation to the ultimate issues based on any assessment of the quality of the evidence for finding, in a way, that it can sensibly be inferred there was a raising of the civil standard of proof to a bar higher than on the balance of probabilities. The appellant is unable to indicate any part of the reasons for decision in relation to a specific finding of fact based on the evidence that would admit to such a finding.
84 Eighth, in my view, the reference by the arbitrator to the need for 'clear and cogent evidence' is, in the circumstances of this case, and the statutory provisions which apply, a correct statement of legal principle. I understand the arbitrator was saying, even though the rules of evidence do not apply, the party with the onus of proof must adduce some evidence upon which relevant findings of fact could be made, as opposed to no evidence.
85 Given the basis for the ultimate findings by the arbitrator, the passage complained of may properly be understood as an explanation that if there is no, or insufficient, evidence then acting judicially, even with the prescription of the mandate of s 188 of the Act, the finding sought cannot be made. This is in contra distinction to the quality of the evidence being assessed at a certain level, before the application of the civil standard of proof, for the purpose of fact-finding.
86 In summary, in my view the arbitrator was saying, in practical terms the evidentiary material must implicitly have a sufficient quality about it such that the fact-finder can attain the necessary satisfaction to make a finding to the level of persuasion on the balance of probabilities. The powers in s 188 of the Act do not permit the arbitrator to make findings in a lacuna, or to fill in gaps in the evidence if there is no evidence to support the contention.
Ground 1 – findings of fact without evidence
87 This ground of appeal contends that the arbitrator made findings of fact with no evidence to support them. In particular, it is alleged that when the arbitrator made findings that the appellant had a capacity to be a courier driver or a gatekeeper at [109], [111], [115] and [123], there was no evidence to support those findings.
88 The appellant amended this ground of appeal with leave of the court during the hearing of the appeal so as to delete the capacity referred to as 'physical', thereby opening up the ground of appeal to cover both physical and vocational capacity.
89 The application to amend was granted on the basis there was no discernible prejudice to the respondent. The application was, no doubt, made as a result of the respondent's submission that [109], [111] to [115] referred to vocational capacity and not physical capacity.
90 At the hearing of the appeal, I canvassed with counsel whether or not the issue of vocational capacity and, in particular, the issue of computer usage for the purpose of the identified work was a live issue at the arbitration hearing. The reason for this was to satisfy myself that the appellant did not claim to have been taken by surprise by the arbitrator's findings in this regard, as the findings effectively resulted in the failure by the appellant to prove his application. I was assured by both counsel that there was no lack of procedural fairness in this regard, and that the issue was fairly and squarely alive at the arbitration.
91 There are two components with respect to vocational capacity arising out of computer usage. The first is the extent to which knowledge of computers and their use was a necessary component of any work activity. The second was the extent of the knowledge and experience of the appellant, and his personal ability to be vocationally trained to fill in the gaps in order to, in particular, use computers to the extent necessary for the identified work positions.
92 The appellant, in his evidence, maintained that he was 'computer illiterate'. In cross-examination he said:
The only things I can do on the computer is play games when I'm bored. I can't express myself as far as talking goes. And then my writing's not all that flash. As far as retraining goes, I went and applied for a job with MidWest Signs to hold a stop/go sign but there's no such thing as standing there holding a stop/go sign, you have to do other activities. So what would I re-train as?
93 This answer is non-responsive, in part, and resulted in further cross-examination and evidence from the appellant that, in effect, he could only accept and send emails 'with his wife's help' (ts 29). Presumably he cannot send text messages on his mobile on his own.
94 It also appears the evidence was that the appellant had not sought, by way of vocational training, to enrol in any basic computer course to enable him to obtain the skills necessary, only to the extent to perform work within the scope of his physical restriction as a result of his shoulder injury. In [109] the arbitrator, after dealing with the issue of any physical limitation of the appellant, observed 'there is otherwise no indication of whether Mr George would not be vocationally equipped to work as a gatekeeper'. I understand this finding to be in relation to whether any computer usage component required as part of that employment was such that the appellant did not at the time possess the necessary skills, or could not be re-trained in the future so that he did have the necessary skills.
95 The arbitrator went on to say [111]:
As noted, Mr George retains the obligation to prove that he lacks the vocational capacity to exploit avenues for employment he remains physically fit for (i.e. is incapacitated). In light of the lack of evidence suggesting that Mr George is vocationally incapacitated from working as a courier or gatekeeper it cannot be said that Mr George is totally incapacitated for work by reason of his vocational limitations.
96 In my view, the finding in [111] by the arbitrator critically informs the decision of the arbitrator on the ultimate issue and the failure to grant the appellant's application. This is further confirmed by [115], which provides:
In any event, the vocational requirement to retrain in this fashion has only been shown to be necessary in regards to the role of weighbridge operator. There is no evidence that this training is necessary for gatekeeper or courier driver roles.
97 It is the lack of evidence, or failure to adduce evidence to the contrary, that vocational training, in particular, with respect to computer usage, is necessary and, if so, could not be obtained as a result of enrolling for, and participating in, the appropriate courses, which is at the bedrock of the arbitrator's decision.
98 In other words, based on the evidence adduced in the arbitration, the arbitrator was not satisfied on the balance of probabilities that there was a relevant vocational incapacity with respect to, in particular, computer usage (as opposed to a physical incapacity) and, as such, it could not be said that the appellant was totally and permanently incapacitated such that he could not perform the identified work within the physical restriction as a result of his shoulder injury.
99 This is consistent with the finding of the arbitrator at [123], where he said:
I am not persuaded that Mr George is restricted from exercising this partial physical capacity by reason of any vocational restriction, specifically his lack of computer training.
100 For these reasons, I am not persuaded that there is any merit in this part of the first ground of appeal. On the contrary, in my view, the arbitrator's reasons for decision and the finding as to the vocational capacity are consistent with, and open on, the evidence that was available to him. I am satisfied that there was sufficient evidence to support the findings in the paragraphs referred to. The appellant has not condescended into particulars or persuaded me otherwise.
101 The appellant next contends that, because the arbitrator found that the appellant had no physical capacity to be a taxi driver at [148], he should therefore also have found that the appellant had no physical capacity to be a courier driver.
102 With respect, this submission is illogical and assumes that the physical aspects of either role are the same or nearly identical, which, on the evidence, was shown not to be the case.
103 The basis upon which the arbitrator accepted that the appellant was physically incapable of working as a taxi driver was, in part, because he accepted that the appellant could not lift customers' luggage (which I infer might have exceeded 23 kg for any single item). Consistent with the evidence, and the finding of the arbitrator, the physical restrictions as a result of the right shoulder injury of the appellant which preclude him acting as a taxi driver would not in the same way necessarily result in him being unable to act as a light courier driver.
104 In my view, this ground of appeal has no merit. Further, based on the evidentiary material, it was open to the arbitrator to make the finding as to physical capacity to be a courier driver.
105 For similar reasons, in my view, ground of appeal 1.3 must also be dismissed. With respect, it is wrong in logic and I am not persuaded that the evidence and the issues as agitated before the arbitrator do not admit to the finding complained of.
106 For these reasons, ground of appeal 1 must be dismissed.
Ground 2 – failure to give adequate reasons
107 This ground of appeal contends that the arbitrator failed to give adequate reasons at [121] as to why he preferred Ms Danker's rehabilitation report over Ms Norman's vocational rehabilitation report.
108 Before turning to the substance of the ground of appeal, the starting point is the relevant legal principles.
109 Section 213(4) of the Act provides:
(4) The reasons for an arbitrator’s decision —
(a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. … Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. … Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear … Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance.
…
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
111 In Velez Pty Ltd v Tudor [2011] WASCA 218 [60], [63], [70], Murphy JA made the following observations while considering an appeal that concerned the adequacy of the arbitrator's reasons for decision under the Act.
The function of reasons is to give effect to any right of appeal, to enable an appeal court to determine whether or not an appellable error was made, and to allow the parties to understand why they were or were not successful: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27]; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32].
…
Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised: Wainohu [56]. The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose: SNF v Jones [32].
…
In identifying the facts accepted and the reasons for doing so (s 213(4)(a)) and the law applied and the reasons for doing so (s 213(4)(b)), the arbitrator will in my view still be obliged to expose the reasoning process linking them, and justifying the ultimate result (cf AK v Western Australia [44]).
112 If the ground of appeal depends on a contention that an alternative finding was available on the evidence, the appellant must demonstrate that the arbitrator made an error or fact. See Nankivell v Insurance Commission of Western Australia [2017] WASCA 143, Buss P said [44]:
It is insufficient for an appellant who challenges a trial judge's findings of fact merely to demonstrate that an alternative finding was available on the evidence. The appellant must demonstrate that the trial judge made an error of fact. In Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, Beaumont and Lee JJ said:
'The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes [(1979) 142 CLR 531] (at 552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)' (369)
See also Williams v The Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255 [84] (Heydon JA, Spigelman CJ & Sheller JA agreeing).
Indeed, Ms Norman appears to discount courier driving and gatekeeping as occupations that Mr George may be fit for, contrary to the report of Ms Danker (and ultimately, the facts as I have found them to be). There is nothing in Ms Norman's report to indicate that she is aware of or has had regard to Ms Danker's report.
114 The appellant's submissions in support of this ground are brief. As I understand the submission, it is that the arbitrator, by implication, preferred the evidence of Ms Danker over the evidence of Ms Norman, because Ms Norman appeared to discount courier and gate-keeping as occupations for which the appellant may be fit.
115 At the outset, it must be observed that, in my view, the arbitrator in [121] is not making findings critical to his ultimate decision, but merely observations about the evidence of Ms Norman and Ms Danker.
116 The appellant appears to suggest the ground of appeal is based on a contention that Ms Danker produced a list of suitable occupations (including courier driving and gate-keeping) which was produced after the report of Ms Norman. As counsel said, 'The appellant submits that he only had to rule out Ms Danker's list because she had the most recent report' (ts 55).
117 The respondent contends that the comment by the arbitrator at [121] does not contain a finding that he preferred Ms Danker's report over Ms Norman's report. The respondent said in submissions:
It's simply a comment in respect of two particular roles, which as my friend has identified, weren't in fact addressed to any extent by Ms Norman in her report. (ts 57)
118 The respondent suggests that the actual findings of the arbitrator are at [149], where he said:
Ms Norman records 'courier' as a vocational option available to Mr George. However, she does not provide any labour market evidence of this role as '[a]fter reviewing the above, the options requiring further extensive training were excluded as well as those requiring functional tolerances outside of the medical recommendations'. I infer then that Ms Norman concluded that courier work was not physically appropriate work for Mr George having regard to the physical restrictions imposed by Mr George's 'treating and reviewing specialists'. However, this ignores Ms Danker's report of the case conference held with Mr George and Dr Powell which records that Dr Powell considered courier work appropriate provided it was within Mr George's lifting restriction.
119 The difficulty is that it is unclear what the appellant contends the arbitrator ought to have found in reliance upon Ms Norman's report when Ms Norman provides no detailed consideration of the relevant roles in issue.
120 In reply, counsel for the appellant maintained his submission that the
arbitrator accepted Ms Norman's report because it post-dated Ms Danker's report by about a month, and also Ms Norman is the employer of Ms Danker. So it can be inferred that Ms Norman had reviewed her employee's work and had come to the conclusion that she should discount courier driving and gatekeeping. (ts 58)
121 It is the appellant's submission that the two reports were responsible for the arbitrator's ultimate decision.
122 Both Ms Norman (a rehabilitation counsellor) and Ms Danker (a workplace rehabilitation consultant) are employed by Dynamic Focus.
123 In her vocational assessment report dated 14 November 2016, Ms Norman indicated the purpose of her report was to identify potential alternate areas of work for the appellant taking into account his physical restrictions and a vocational assessment of his ability to undertake such employment. Although Ms Norman considered employment options as a prospector, geology/field assistant, taxi driver and weighbridge operator, she did not expressly consider the occupations of courier driving or gate-keeping in her report. Her recommendations are circumscribed by the limited vocational options available to the appellant in Geraldton where he was living, as opposed to the metropolitan area. Ms Norman identified some barriers as part of her assessment that would impact on the appellant's ability to return to work and, in particular, noted:
It would therefore appear that it would be difficult to assess Mr George's capacity and/or attitude to work in alternate areas without some form of training and work experience.
124 To assist the appellant, Ms Norman suggested consideration be given to:
• identifying training that could be accessed locally by the appellant with the view to assisting him to become computer literate
• canvas for a work trial in an alternate role that meets the medical restrictions after completing training
• participation on medical advice in a supervised programme aimed at improving his physical limitations and tolerances.
125 It is implicit in her report that, subject to some vocational training, work opportunities other than those identified by her in the report, might be suitable and available to the appellant.
126 Ms Danker prepared a rehabilitation progress report on 20 October 2016 (prior to Ms Norman's report). In her report Ms Danker suggested vocational options including small light vehicle operation such as a courier driver and a weighbridge operator, the latter, in her opinion, being physically suitable but requiring basic computer knowledge. She also considered gate-keeping as physically suitable, and traffic control as not likely to be suitable given other traffic management tasks other than the traditional 'lollypop role'.
127 Ms Danker, in her report, proposed that the appellant complete the vocational assessment and discuss the identified vocations with medical advisors to determine the suitability of the proposed job options, and to commence canvassing for a medically suitable work trial to be undertaken. In general, Ms Danker does not appear to consider that the appellant is totally and permanently unfit for any work in the future.
128 I have reviewed the reasons for decision of the arbitrator and, in my view, they do not admit to a finding, having regard to the evidence before him and the findings made, that he failed to give adequate reasons for his ultimate conclusion. It is, of course, not necessary for him to canvas every aspect of the evidence and every factual and legal argument arising.
129 Respectfully, in my view, it cannot be said that his reasons, construed as a whole, do not permit the ultimate findings made with respect to the appellant's physical and vocational limitations for work.
130 It is not contended by the appellant that the arbitrator, for the purpose of this ground of appeal was, in some way, not permitted by reason of the evidence before him, or the way in which the issues involved in the arbitration hearing itself, to reach the final decision resulting in the dismissal of the appellant's application.
131 On a consideration of the arbitrator's reasons, and the evidence as a whole, this ground of appeal must be dismissed.
Ground 3 - failure to take account of relevant consideration
132 This ground of appeal, in my view, was properly abandoned by the appellant on the hearing of the appeal.
133 The appellant's contention was that, because he had received a payment from his superannuation insurer for total and permanent disability, this was a relevant consideration the arbitrator failed to take into account in his decision-making process.
134 With respect, the arbitrator was required to reach his decision on the appellant's application by reference to the provisions of the Act and the evidentiary and factual material before him. Whatever payout the appellant may have received from another insurer based on that policy cannot inform or assist the arbitrator to make a lawful determination for the payment of further compensation under the Act on the basis he is permanently and totally incapacitated for all other work.
135 If the arbitrator had taken into account the matter relied upon, in my view, he would have taken into account an irrelevant consideration, and it may have infected his decision on the ultimate issue.
136 This ground of appeal must be dismissed.
Ground 4 – failure to make relevant findings
137 This ground of appeal alleges that the arbitrator erred in law because he failed to make findings at [179] as to the appellant's social and financial circumstances.
138 Section 217(3) of the Act provides:
(3) An arbitrator is not to make an order under subsection (2) unless the arbitrator considers an order ought to be made, having regard to the social and financial circumstances and the reasonable financial needs of the worker.
139 In my view, the proper construction of s 217 of the Act makes any payment of further compensation over the prescribed amount conditional on the arbitrator first being satisfied that the worker is, as a result of a compensable injury under the Act, permanently and totally incapacitated for work (at the time of the decision): s 217(1)(a).
140 Subject to having made the findings of fact required by s 217(1), the arbitrator's discretion to 'make any order as to the total liability of the employer for the incapacity that the arbitrator thinks proper in the circumstances' is enlivened: s 217(2).
141 However, the discretion once enlivened to make an order, is further expressly conditioned by the requirement of s 217(3) that the arbitrator must take into account before making the order 'the social and financial circumstances and the reasonable financial needs of the worker'.
142 In this case, the appellant did not prove on the balance of probabilities that he was permanently and totally incapacitated for work and therefore the statutory discretion reposed in the arbitrator by s 217(2) of the Act did not arise. Accordingly, there was no requirement for the arbitrator to have regard to, or to consider, the matters referred to in s 217(3) of the Act concerning the social and financial circumstances of the appellant.
143 Although counsel for the appellant submitted it was incumbent upon the arbitrator to make findings in relation to the matters the subject of s 217(3) of the Act, as I have found, the arbitrator was not empowered to do so. There is no practical reason why the hearing before the arbitrator could not have been split into two separate hearings to minimise the parties' costs and the hearing time.144 I reject the analogy relied upon by the appellant, that a court which hears a liability and damages claim should in those circumstances make findings in relation to its assessment of damages, even if liability is not proven.
145 I am not persuaded that there was any legal obligation on the arbitrator to make findings in respect to the issues raised by s 217(3) of the Act when to do so, given the ultimate decision, would have no utility and be a waste of resources, time and effort. I would also observe that if the appeal had been successful, subject to hearing from the parties, the likely outcome would have been an order referring the appellant's application back to the Workers' Compensation Arbitration Service for determination by a different arbitrator.
146 For these reasons, in my view, there is no merit in this ground of appeal.
Summary and conclusion
147 Understandably, the appellant must be personally disappointed with the arbitrator's decision. However, for the reasons set out above, in my view, none of the grounds of appeal have merit or can be sustained.
148 The arbitrator was not persuaded by the appellant, who bore the onus of proof, that he is permanently and totally incapacitated for work and as a result entitled to an order under s 217 of the Act for the provision of further weekly payments over and above the prescribed amount already received.
149 Although the appellant has worked in the transport industry for about 40 years as a truck and road train driver, the arbitrator was not persuaded that he is physically incapacitated from undertaking work as a courier driver or gatekeeper, notwithstanding his permanent physical restrictions and any limitations on his vocational capacity.
150 To the extent that the appellant sought to rely on his background as an explanation for an inability to perform other work based on his work experience and lack of knowledge of computer usage, this was not accepted by the arbitrator. Whilst the arbitrator accepted the physical restrictions of the appellant, he was not satisfied that he is vocationally restricted such that he is totally and permanently incapacitated for work.
151 In my view, the arbitrator did not fall into error in his decision-making and there is no lawful basis to set aside his findings or the conclusion that he reached.
152 I am not persuaded that any of the grounds of appeal have been made out and, accordingly, the appeal must be dismissed.
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