Griffiths v Australian Traineeship System in respect of Jim Pearson Transport
[2006] NSWWCCPD 246
•28 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Griffiths v Australian Traineeship System in respect of Jim Pearson Transport [2006] NSWWCCPD 246
APPELLANT: Stephen John Griffiths
RESPONDENT: Australian Traineeship System in respect of Jim Pearson Transport
INSURER:GIO Workers Compensation ( NSW) Limited
FILE NUMBER: WCC8002-04
DATE OF ARBITRATOR’S DECISION: 22 October 2004
DATE OF APPEAL DECISION: 28 September 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence of ‘incapacity’; application of sections 36 and 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Self-Represented
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: 1. Leave to appeal extended to 16 August 2005.
2.The decision of the Arbitrator dated 22 October 2004 is confirmed.
3.No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Stephen John Griffiths (‘the Appellant) was employed by the Australian Traineeship System in respect of Jim Pearson Transport (‘the Respondent’), as a loader and driver. He was employed on a permanent fulltime basis as a trainee under the Australian Traineeship System.
The Appellant claims that on 14 August 2002, whilst he was checking a load on a trailer, he slipped and fell, injuring his back and left shoulder. It appears that he remained at work in the employ of the Respondent until ceasing on 19 September 2003. He was apparently certified as being unfit to work from 20 September 2003 onwards by various general practitioners he has consulted since that time.
On 2 October 2003, the Appellant lodged a claim with the Respondent’s insurer, GIO Workers Compensation (NSW) Limited (the ‘insurer’) for weekly benefits compensation and medical expenses. By letter dated 22 October 2003, the insurer denied liability for the Appellant’s claim.
On 19 May 2004, the Appellant filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 20 September 2003 and medical, hospital or related expenses totalling $1,351.25 pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
The parties attended a conciliation/arbitration hearing on 23 September 2004. On 22 October 2004, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1. The Respondent pay the Applicant weekly compensation at the rate of $646.00 gross per week from 20 September 2003 to 17 October 2003 under section 36 of the 1987 Act.
2. The Respondent pay the Applicant weekly compensation at the applicable maximum statutory rate for a person with one dependant from 18 October 2003 to 14 November 2003 under section 40 of the 1987 Act.
3. The Respondent pay the Applicant weekly compensation at the rate of $646.00 gross per week from 15 November 2003 to 23 January 2004 under section 36 of the 1987 Act.
4. There is an award for the Respondent in respect of weekly compensation from 24 January 2004 onwards pursuant to section 40 of the 1987 Act.
5. The Respondent pay the Applicant’s section 60 expenses in accordance with the 1987 Act upon the production of accounts and receipts up to a maximum of $2,498.00.
6. The Respondent pay the Applicant’s costs as agreed or as assessed.”
On 16 August 2005, the Appellant lodged an ‘Appeal Against Decision of Arbitrator’. Briefly, the Appellant submits that the Arbitrator’s decision was against the weight of evidence, in particular, a number of medical certificates that certified him unfit for work for at least two years post dating his accident. The Appellant also seeks to adduce fresh evidence in the form of additional medical certificates and radiological reports.
On 16 September 2005, the Respondent filed a ‘Notice of Opposition to Appeal’. In essence, the Respondent submits that the appeal was filed almost 12 months out of time, fails to satisfy the threshold requirements set out in section 352(2) of the Work Place Injury Management and Workers Compensation Act 1988 (‘the 1998 Act’), and that the Arbitrator “… fairly weighed the evidence and provided a determination accordingly.”
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of Section 352 of the 1998 Act.
Section 352(2) of the 1998 Act provides as follows:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000.00 (or such other amount as may be prescribed by the Regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The Respondent submits that:
“On the basis that there was a finding of fitness for full pre-injury duties and earnings as at January 2004, … leave ought not be granted … because the amount of compensation at issue is neither $5000.00 nor 20% of the amount awarded in [the Arbitrator’s] decision.”
Nonetheless, in his Application, the Appellant sought weekly benefits of compensation from 22 September 2003 “to date and continuing” together with medical, hospital or related expenses. The amount of the Arbitrator’s award exceeds $11,000.00.
In the circumstances, the amount at issue on the appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
Section 352(4) of the 1998 provides as follows:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
The date of the Arbitrator’s decision is 22 October 2004. The appeal was not filed until 16 August 2005, clearly outside the time limits prescribed by section 352(4).
In submissions addressing its opposition to the late filing of the Appeal, the Respondent makes reference to Practice Direction No. 6 dealing with appeals against arbitral decisions noting that:
“This Direction must be considered in the context of the objectives of the Commission, in particular the duty to provide a timely and effective dispute resolution service in relation to worker’s entitlements under the Workers Compensation Legislation.”
In addition, the Respondent notes that judgment monies have been paid, the appeal is close to 12 months out of date, and the Appellant has failed to provide any “substantiation” for the appeal being brought so late.
In a hand written document forwarded to the Commission on 18 August 2005, the Appellant makes submissions in relation to ‘new evidence’ but does not specifically address the reason for the delay in filing the Appeal. Nonetheless, he makes reference to difficulties in communicating with his previous solicitors, his attempts to find new legal representation, and included a copy of a complaint form to the Legal Services Commissioner in relation to his former solicitor’s conduct of the proceedings before the Arbitrator at Ballina on 22 October 2004. The ‘main issues’ the Appellant addressed in that letter included a failure by his former solicitors to “explain things”. The submissions to the Legal Services Commissioner include a statement that “[my solicitor] did said [sic] we going to appeal against this but he did not …”. He noted that he made a number of telephone calls to his solicitor which were not returned. It is also clear from documents filed with the Commission on 18 August 2005 that the Appellant had indeed sought advice from the Law Society of NSW regarding legal representation in about May or June of 2005.
In further submissions, the Appellant states:
“Due to me not being a very good reader and not understanding the Arbitrator’s outcome and my solicator [sic] not telling me everything and exspaining [sic] things to me I now have no solicator [sic] and cannot get another solicitor to take on my case. I am going through this all on my own. I would like someone to take another look at my case and give what I am intitled [sic] to.”
At the proceedings before the Arbitrator on 23 September 2004, the Appellant was represented by both a solicitor and barrister. In submissions attached to the appeal application, the Appellant claims that: “My solicitor … had told me that he was going to appeal against the Arbitrator, I had told him to go ahead with the appeal as I was not happy with the Arbitrator’s … dission [sic].” The Appellant then goes on to note a number of telephone calls he made to his solicitor, until he finally spoke to him and was apparently advised that:
“… He was not going to appeal as it is not worth it and it is too late, and he said he got in contact with the barister [sic] … and he said leave it as it is. I do not think this is up to them to deside [sic] what to do. I should have been ask [sic] what I wanted and they didn’t ask me. I have been left in the dark … I found out that I can appeal against the Arbitrator and I wish to do so.”
Rule 77(8) of the Workers Compensation Commission Rules (2003) (‘the Rules’) provides as follows:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
Rule 77(9) of the Rules is in the following terms:
“(9) A party who seeks an extension of time as referred to in sub-rule (8) must:
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application for leave to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The Appellant has complied with Rule 77(9). The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. Ultimately, the discretion must be exercised to ensure that justice between the parties is achieved. (See Gallo v Dawson [1990] 93 ALR 479). I am also mindful of the objectives of the Commission as set out in section 367 of the 1998 Act to provide “a fair system” for the resolution of disputes before the Commission.
The Appellant’s submissions in support of his claim of “exceptional circumstances” in relation to the granting of leave to appeal out of time focus essentially on complaints about the conduct of his legal representatives both at and following the hearing before the Arbitrator. Nevertheless, I am mindful of the Appellant’s clearly limited educational skills, and his well documented attempts to pursue an appeal and obtain legal representation. I have also had regard to the decision of Deputy President Byron in Al Keffai v Famicorp Pty Limited [2006] NSWWCCPD 92 which provides a detailed analysis of the issues to be considered in the exercise of the Commission’s discretion to extend time for filing an appeal.
Deputy President Byron’s comment in that case that the appellant: “… Would have had little personal grasp of what was required of him, and I very much doubt that he would have appreciated the finer points of the processes and procedures that were unfolding around him” is I think pertinent in this case.
The question as to the admission of fresh evidence is a different issue which I will address shortly, but in my view, there is sufficient evidence in the Appellant’s submissions before me to be satisfied that exceptional circumstances do exist in this matter, and to that to lose the right to seek leave to appeal would likely bring demonstrable and substantial injustice to the Appellant.
I am also of the view that an extension of time to make the appeal would not give rise to any substantial prejudice to the Respondent.
Accordingly, I extend time for making the appeal in this case to 16 August 2005.
Leave to appeal is granted.
FRESH EVIDENCE
The Appellant seeks to rely on fresh evidence in the form of medical certificates and radiological reports. They include two certificates from Dr Wilson, one purportedly certifying the Appellant unfit for work from 10 August 2005 to 10 February 2006 and the other certifying him “totally incapacitated for work …” from 11 July 2005 to 11 October 2005. A further medical certificate from Dr Murdoch certifies the Appellant unfit for work from 28 November 2003 to 28 February 2004. There is also a report of a CT Scan dated 30 June 2005, and an MRI report of the cervical spine dated 5 March 2004 and an x-ray of the thoracic and lumbar spine dated 1 August 2003.
At paragraph 15 of his ‘Statement of Reasons’ dated 20 October 2004, the Arbitrator identified the “documentary evidence” before him. It is noted that the radiological reports of 1 August 2003 and 5 March 2004 were before the Arbitrator, together with a further MRI of the left shoulder and lumbar spine also dated 5 March 2004. The CT Scan of 30 June 2005 was not before the Arbitrator however, an earlier CT Scan of the lumbar and cervical spines dated 27 November 2003 was before the Arbitrator. The latest CT Scan records: “No abnormality” at the L3/4 level, and at the L4/5 and L5/S1 levels, “… mild broad based annular bulges at both levels [and] no disc herniation or para vertebral soft tissue abnormalities” were noted. I cannot see that the CT Scan of 30 June 2005 adds further to the radiological picture that was before the Arbitrator, and the Appellant’s application to admit it is rejected.
As to the medical certificates, the Arbitrator noted at paragraph 15 that he had:
“Various Workers Compensation certificates issue by the Applicant’s general practitioner Dr G Murdoch covering a cumulative period up to 24 June 2004 [and] a Queensland Workers Compensation Certificate dated 20 September 2004 admitted by consent at the hearing”.
The material now sought to be admitted by the Appellant was not before the Arbitrator, and whilst some of it clearly post dated the Arbitration hearing, the Arbitrator determined on the whole of the medical evidence before him, that as at 24 January 2004, the Appellant “… would not be able to return to his former pre-injury employment in an unrestricted capacity” but that he was fit for a variety of alternate employment that did not result in any economic incapacity, although he was “partially incapacitated”.
The medical certificates that the Appellant now seeks to admit are in effect a continuum of earlier medical certificates before the Arbitrator. The opinions contained therein as to the Appellant’s capacity for employment have not altered. It is noted that Dr Murdoch had certified the Appellant as unfit for work up until 24 June 2004, an opinion he has apparently maintained thereafter.
The Arbitrator’s ‘Statement of Reasons’ indicated that he had extensive documentary evidence from both parties before him in making his determination. In the circumstances, the interests of justice would not be served if this “fresh evidence” were now admitted since, as I have said, they do no more than reassert the opinions of some general practitioners, and would cause considerable prejudice and injustice to the Respondent if they were now admitted.
Accordingly, leave to admit fresh evidence is refused.
ON THE PAPERS
Both parties submit that the matter is suitable for a determination ‘on the papers’. 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.”
In the present case, I am satisfied that I have “sufficient information” within the meaning of section 354(6) to determine the issues raised ‘on the papers’, and that this is the appropriate in the circumstances. I have before me the Arbitrator’s ‘Statement of Reasons’, all the evidence before him, including the transcript, the Commission files, and the detailed submissions by both parties on appeal. I have also had regard to the factors relevant to a determination ‘on the papers’ as set out in Practice Direction No 1.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Arbitrator’s Findings and Reasons
As I have said earlier, much of the Appellant’s submissions focus on what he regards as poor representation during the conduct of the arbitral proceedings. It is clear that the Appellant has made lengthy submissions to the Legal Services Commission on this issue, which I should say is the appropriate forum. My task on appeal is not to further debate issues raised or evidence provided before the Arbitrator, nor to comment upon the conduct of any legal representatives, but is concerned with claimed error of law, fact and/or discretion in the Arbitrator’s determination.
As I understand it, the Appellant’s principal complaint with respect to the Arbitrator’s determination is that his decision that the Appellant was not entitled to further weekly benefits of compensation beyond 24 January 2004 was against the weight of the evidence. It is therefore appropriate to examine that evidence in detail, and the Arbitrator’s reasons in relation to it.
The Appellant first consulted Dr Kumar, General Practitioner, on 7 September 2002. Dr Kumar’s report of 19 November 2003 records that the Appellant told him that “… he had a back injury at work four weeks ago on 14 August 2002 …”. Dr Kumar went onto note “he had multiple appointments with me after that regarding the same back pain off and on.” He also noted: “Initially when I saw him he did not want to put his claim under workers compensation as he was able to work and was keen to work. He did not have much problem with the back pain again until 19 July 2003.”
Dr Kumar concluded that “he was unfit for work until 18 October when he decided to go back to suitable duties and he has been on suitable duties since then and also having physiotherapy”.
The “nature of the injury” as described in the report of Dr Kumar was “upper back pain and lower back pain … and occasionally his neck was cracking as well.” No reference was made to any shoulder problem.
In a certificate dated 2 August 2003, Dr Kumar certified the Appellant as “fit for pre-injury duties from 4 August 2003.” In later certificates commencing 20 September 2003, Dr Kumar certified the Appellant unfit to work up until 17 October 2003. He was then certified “fit for suitable duties from 18 October 2003 to 15 November 2003.”
It appears that in November 2003, the Appellant changed general practitioners and consulted a Dr Gary Murdoch on 17 November 2003. In his statement dated 16 March 2004, the Appellant stated that “I became dissatisfied with Dr Kumar …” but no further details were provided. In a report dated 3 December2003, Dr Murdoch noted that “he complained of neck and lower back pain”. He was reviewed on 24 November 2003, 28 November 2003 and 1 December 2003. Dr Murdoch noted “on each occasion Stephen was improved but was reluctant to return to work as he believed this would exacerbate his pain.” Dr Murdoch recommended specialist consultation.
The Appellant was seen by Dr Alan Hopcroft at the request of his solicitors on 9 December 2003. In a report dated 11 December 2003, Dr Hopcroft recorded that, following the injury, “he had immediately developed pain in his low back and buttock and also some pain in his upper thoracic spine and left shoulder region.” Dr Hopcroft recommended MRI scanning and that “… on the basis of his significant symptom complex today, that he is not a candidate to return to truck driving activities.”
It appears that the Appellant had been seen by a rheumatologist, Dr Michael Prowse, in October 2003 at the request of Dr Kumar. Dr Hopcroft provided a supplementary report on 5 February 2004 commenting on an x-ray of the left shoulder and concluding that the Appellant should “… proceed with MRI scanning of his left shoulder …”. He also requested MRI scanning of the cervical and lumbo sacral spine.
No further reports were provided by Dr Hopcroft thereafter, nor indeed were there any other reports from any other medical practitioners from whom the Appellant had sought treatment.
As to the medical certificates, Dr Murdoch certified the Appellant as unfit to work continuously from 14 November 2003 to 24 June 2004.
The Respondent had the Appellant medically examined by Dr Michael Shatwell, Consultant Orthopaedic Surgeon, on 17 October 2003. In a report dated 20 October 2003, Dr Shatwell concluded that the Appellant’s symptoms “… are non specific and episodic … physical examination today did not convince me there was any pathological process causing Mr Griffiths’ non-specific back pain”. He noted that on examination the Appellant’s “back examines normally” and that “the x-rays are with normal limits”. Dr Shatwell suggested that the Appellant’s non-specific pain could not now “… be attributable to an injury that occurred more than one year ago” and that “… Mr Griffiths is fit for his normal pre-injury duties.” He placed no restrictions on Mr Griffiths’ resumption of employment.
It was on the basis of this report that liability by the insurer was declined.
The Respondent included in its Reply a series of reports from Dr Michael Prowse, Rheumatologist, to which reference was made earlier, and his locum, Dr Beatrice Janssen. In a report dated 8 October 2003, Dr Janssen obtained a history that the Appellant had suffered a whiplash injury at the age of 14 and that in the accident on 14 August 2002 he suffered “lumbo sacral pain as well as buttock pain”. She also noted that “several months ago he suffered a second work related injury where he was pulling on some ropes and he struck his right shoulder against a post.” On examination, Dr Janssen noted that “he is a well looking muscular gentleman who is in no distress during examination.” Dr Janssen concluded that the Appellant has “mechanical thoracic and lower back pain. There are no neurological symptoms or signs and I do not feel that an MRI is indicated at this stage. I feel he needs to increase his back exercise programme …”
In a report dated 15 December 2003, Dr Prowse noted “this man has diffuse spinal and limb pain which could be radicular. He has minimal disc bulges L4/5 and L5/S1 but it is hard to explain his diffuse musculo skeletal pain on the basis of this.”
In his final report dated 22 April 2004, Dr Prowse noted that he not seen the Appellant since 15 December 2003 and that he had failed to attend at any follow-up appointment. He concluded: “This man has diffuse musculo skeletal pain but only minor changes in investigations … which don’t readily explain his level of symptoms …”
At the hearing before the Arbitrator, the Appellant’s legal representatives sought to tender two reports of Dr James Bodel, both dated 6 July 2004. The transcript records that those reports were apparently only served on the Appellant by the Respondent on 16 September 2004 but were ultimately admitted.
Dr Bodel concluded that as a result of the injury on 14 August 2002, the Appellant “… suffered a minor rotator cuff injury to the left shoulder and soft tissue injuries to the neck and back with some minor disc pathology in both areas.” He recorded that the Appellant had “slowly improved but has never completely recovered.” Dr Bodel opined that:
“He is probably not fit for unrestricted work of the type that he was doing at the time of his injury but he is fit for fulltime modified duties. I would place a 15 kilogram lifting limit on him and he must avoid repetitive bending or strenuous and repetitive tasks with the left arm overhead in order to minimise his symptoms”.
That was the extent of the medical evidence before the Arbitrator. The Respondent also relied upon some vocational assessment reports from the “Vocational Capacity Centre” dated 17 August 2004. That “report” in fact contained a series of reports detailing the Centre’s evaluation of the Appellant’s functional and vocational capabilities.
At paragraph 8 of the ‘Statement of Reasons’, the Arbitrator dealt with the Appellant’s claim for medical expenses which had apparently increased following the filing of his application. No issue appears to have been taken by the Appellant as to the Arbitrator’s determination on this issue and I do not propose to consider it further.
After detailing the documentary evidence for both parties, noting the injury and nature of the claim and both parties’ medical evidence, the Arbitrator then summarised both parties’ submissions at paragraphs 25 to 38 inclusive of the ‘Statement of Reasons’. He then embarked upon his findings and reasons. He noted that sections 4 and 9A of the 1987 Act were not in dispute and that, in relation to the claim for weekly benefits compensation, “… the case turns on the question of whether the Applicant has an incapacity to work, and if so, for what period and whether the incapacity is total or partial.”
The Arbitrator then set out in considerable detail the relevant legislative provisions.
At paragraph 47 of the ‘Statement of Reasons’ the Arbitrator then embarked upon the subject of “Consideration of Issues”. He noted the injury on 14 August 2002 and that the Appellant continued to work with the Respondent until 19 September 2003. After analysing a number of the medical reports in relation to the Appellant’s history as to what activities he had carried out between 14 August 2002 and cessation of work on 19 September 2003, the Arbitrator concluded at paragraph 58:
“While there is inconsistency in these records, on balance, I find that the Applicant probably did work his normal duties albeit with some difficulty for the larger part of the period from 14 August 2004 [sic – 2002] at least until he consulted Dr Kumar on 19 July 2003 when his back pain got worse.”
The Arbitrator went on to note that “Dr Kumar had been the Applicant’s treating doctor from the beginning and his view should be accorded due weight.” Accordingly, on the basis of Dr Kumar’s certificates, the Arbitrator found that the Appellant was totally incapacitated for work from 20 September 2003 to 17 October 2003. He noted that Dr Kumar then certified the Appellant fit for suitable duties from 18 October 2003 to 15 November 2003. The Arbitrator again accepted the view of Dr Kumar and found the Appellant partially incapacitated for work during that period and accordingly, entitled to compensation pursuant to section 40 of the 1987 Act.
The Arbitrator then noted that, around this time, the Appellant had then consulted Dr Murdoch and had seen Dr Shatwell. He noted that Dr Murdoch had certified the Appellant “unfit for work from 14 November 2003 to 24 June 2004.”
The Arbitrator then went on to analysis the opinions of the various medical practitioners before him. He concluded at paragraph 65: “I find that the Applicant had a total incapacity for work from 16 November 2003 according to Dr Murdoch’s initial certificates. The question is for how long was the Applicant totally incapacitated?”
Thereafter, the Arbitrator embarked on a detailed analysis of both the medical reports and medical certificates in order to answer his question “… for how long was the Applicant totally incapacitated?” He said as follows (paragraph 65):
“Dr Murdoch says in his 3 December 2003 report that the Applicant had improved. On the face of that report, it appears the prime reason why Dr Murdoch continued certifying him unfit for work was because of a fear of exacerbation.”
The Arbitrator went on at paragraph 66 as follows:
“The weight of medical opinion suggests that the Applicant’s injuries are minor. Dr Prowse described them as ‘fairly trivial’. Dr Bodel describes the shoulder injury as ‘minor’ and soft tissue injuries to the neck and back with some ‘minor disc pathology in both areas’. In fact, all medical certificates do not even refer to a shoulder injury. The vocational assessment found no adverse clinical signs identified relating to his left shoulder and there was no functional limitation displayed. Dr Bodel says the Applicant has slowly improved over time. Dr Shatwell was of the view that the Applicant basically had no pathology but his inquiry was focused on the spine and was prior to the MRI reports and pathology tests arranged by Dr Prowse.”
At paragraph 67, the Arbitrator concluded:
“Dr Murdoch issued medical certificates at short intervals up until 23 January 2004. Only two certificates were issued thereafter for the period 24 January 2004 to 24 June 2004. I am of the view that, on balance, the Applicant remained totally incapacitated for work up until 23 January 2004.”
At paragraph 68 the Arbitrator stated “I consider that from 24 January 2004 the Applicant has a partial incapacity for work up until the expiration of the last certificate issued by Dr Murdoch ending 24 June 2004. The weight of the medical evidence supports this.”
The Arbitrator then noted that his next task was to determine the nature of the evidence in support of a claim for partial incapacity beyond that date.
In concluding that the weight of medical evidence supported a finding of partial incapacity from 24 January 2004 to 24 June 2004, the Arbitrator had considered the opinions of the various doctors, and the radiological evidence, to which I have referred previously. He noted the varying opinions eg, Dr Shatwell’s view that the Appellant was fit for pre injury duties, and Dr Kumar’s view that the Appellant was fit for suitable duties. He noted at paragraph 64:
“Although Dr Hopcroft says in his 11 December 2003 report that the Applicant ‘is not a candidate to return to truck driving activities’, he makes no mention of his capacity or incapacity to perform other types of work”.
In summary then, the medical evidence was equivocal. Whilst it is true that Dr Murdoch had continued to certify the Appellant as unfit for any work from November 2003, Doctors Shatwell, Prowse, Janssen and Kumar were of a different view. Thus it was open to the Arbitrator to question Dr Murdoch’s certification particularly in light of that doctor’s clear comments that the Appellant had shown considerable improvement by the end of November and early December 2003.
No oral evidence was given by the Appellant. Whilst initially his Counsel applied for leave to give oral evidence, the Arbitrator noted, at paragraph 14 of the ‘Statement of Reasons’, “… That application was withdrawn after I had made a ruling admitting into evidence the two reports of Dr J Bodel dated 6 July 2004 upon application by [Counsel for the Appellant].”
In the circumstances, in my view the weight of evidence supported the Arbitrator’s conclusion that the Appellant had ceased to be totally incapacitated for employment as at 23 January 2004, and I can see no error in his determination on this issue.
The Partial Incapacity Issue
Whilst the Appellant’s submissions on appeal emphasised the Arbitrator’s failure to have due regard to his medical certificates which certified him unfit for work “…for two years …”, the Appellant also takes issue with the Arbitrator’s determination that he was fit for alternative employment. The Appellant makes the following submission:
“Due to … lawyers saying I can do other form of employment like caretaker, or motor vehicle parts interpreter. I am not a machanic [sic]. I am computer literate [sic] below average in reading, writing and maths. Who will employ me with a bad back and no qualifications. I have only been a wardsman at Liverpool Hospital, a packer and a truck driver. I have looked for work and all of them want medical history … since I have been in Queensland they have asked the same thing … Every job I have been for they have what they call a duty of care and if anything happens to me while I am working for them they are responsible for me, so they are not taking the chance of being liable for a reacerance [sic].”
The evidence established that the Appellant had moved to Queensland from Port Macquarie sometime early in 2004.
The Arbitrator had concluded that the Appellant was partially incapacitated for work from 24 January 2004 to 24 June 2004. In considering the medical evidence, he further concluded at paragraph 71 that:
“The majority of medical evidence is that the Applicant could not return to his pre-injury duties. In addition, both authors of the vocational assessment report obtained at the Respondent’s request clearly come to that view. This demonstrates some incapacity for work which is on going. On this basis then, I find that the Applicant has partial incapacity for work from 25 June 2004 onwards and continuing.”
The Arbitrator then embarked upon a discussion of the application of section 40 of the 1987 Act relating to payments of compensation to partially incapacitated workers and the “five step process” in determining an appropriate award by reference to the decision in Mitchell v Central West Health Service (1997) 14 NSW CCR 527. The Arbitrator also considered a number of decisions of the Commission on this issue including Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56. The Arbitrator then made reference to the decision of Deputy President Fleming in Pied Piper Pre-School Association (Wallerawang) Inc v Woolsey [2004] NSWWCCPD 5 looking at the type of evidence that might be considered in establishing the availability of ‘suitable employment’. The Arbitrator noted (paragraph 78):
“This evidence might include:
·Reports addressing the worker’s capacity to find work, considering age, skill, education and experience,
·Labour market data about the geographic regional industry,
·Evidence of application for employment and inability to be successful, and
·Evidence of any specific barriers to employment relevant to the particular worker.”
The Arbitrator went on to note at paragraph 79:
“In this case, there is no evidence of labour market data about the geographic region (either in Port Macquarie or Caloundra Queensland) or industry. The other matters are covered to varying degrees in the Vocational Assessment Reports … there is a dearth of evidence filed on behalf of the Applicant on these matters”.
At paragraph 81, the Arbitrator then set about to consider the factors in sub-section 43A(1) of the 1987 Act on the question of “suitable employment”. His analysis was detailed but in summary, he made the following points:
·“The Applicant’s pre-injury employment had been largely of a physical nature. He has been a storeman/packer, hospital wardsman, a loader driver, driver, builder’s labourer … as the bulk of the medical evidence and the Vocational Assessment suggests, he would not be able to return to his former pre-injury employment in an unrestricted capacity … However, it has been found that he has the capacity for fulltime employment in a range of light, semi sedentary and sedentary positions.”
·“The vocational assessment finds that the Application has intellectual abilities akin to those who have completed short TAFE courses. While his general reading, writing and arithmetic skills are below average, his applied skills in mathematics and reading are adequate for a wide range of elementary clerical skills.”
·“The vocational assessment report has recorded the Applicant as saying that, as he had medical certificates certifying him unfit for work, he has not been seeking any work. Therefore, he has not spent any time seeking suitable employment.”
Counsel for the Appellant submitted before the Arbitrator that the Appellant’s reading, spelling and arithmetic skills were so low that he was severely restricted in his employment opportunities.
As to this submission, the Arbitrator made the following remarks contained in paragraphs 82 – 85 of his ‘Statement of Reasons’. He said (paragraph 83):
“I note that the Applicant was a hospital wardsman in the past. While this job encompasses duties of a physical nature, it demonstrates that he can follow written and verbal instructions and follow procedures and protocols of an organisation in a different context to the usual truck driving or fork lifting role. This type of employment falls outside the type of employment that one might expect of usual labouring jobs. In the past, he has also worked as a storeman/packer. He had to pack orders for laboratory instruments, chemicals and glassware. This job must have involved a basic level of clerical ability in reading and processing order forms in a specified process.”
The Arbitrator went on at paragraph 84 as follows:
“In addition, I note that the Applicant told Dr Bodel that he is considering ‘re-training in real estate’. He also told [the Vocational Assessment Report] that he thinks he could do real estate work. While this may require some training, the point about this is that the Applicant himself believes he can do this type of work which obviously would involve some clerical duties. In his own mind, he believes he has the potential to do this work.”
The Arbitrator noted that there was no evidence that the Appellant had unsuccessfully tried to get work of any description. Indeed, he noted “The Applicant, it appears, has not looked for work at all”, such that there was no evidence to support the view that he may not be suited to certain jobs for which he had applied.
Ultimately, the Arbitrator agreed with the conclusions contained in the Vocational Assessment Report to which I have referred earlier that the Appellant was capable of doing a variety of jobs.
The Vocational Assessment Report dated 17 August 2004 noted at page 3 that:
“… Mr Griffiths would perceive his options as being very limited as he regards his educational skills as being quite restricted. However, from this testing it appears that his skills are more developed than Mr Griffith’s believes.”
The assessment concluded that jobs such as forklift driver, hand packer, store person, service station console operator, sales assistant, canteen attendant, gate keeper or caretaker were within the Appellant’s “current physical and intellectual capabilities, and do not require formal training.”
As to this evidence, the Arbitrator concluded that the Appellant was capable of doing a number of the jobs outlined in the Vocational Assessment Report. He stated (paragraph 88):
“For example, he could be a caretaker. The estimated starting salary for this position … is $690.00 gross per week. This exceeds the Applicant’s probable earrings of $646.00. In applying sub-section 40(2), he would not suffer any loss. Alternatively, he could be a motor vehicle parts interpreter with an estimated starting salary of $551.00 gross per week. This would mean a short fall of $95.00 per week. The vocational assessment says he can do forklift work with a wage of $749.00 gross per week. There are several others.”
The Arbitrator ultimately concluded that (paragraph 89): “… The Applicant has a notional capacity to earn $690.00 gross per week in suitable employment” and that, as that exceeded his probable earnings of $646.00 per week, the Appellant was not entitled to ongoing weekly benefits.
The Arbitrator also considered the Appellant’s ability to work in a general labour market reasonably accessible to him in accordance with the provisions of section 40(3)(a) of the 1987 Act. He noted that, in the absence of any evidence as to the labour market in either Port Macquarie or Calloundra, “… the Applicant has not established that his ability to earn in the general labour market reasonably accessible to him is affected”.
The Arbitrator’s conclusions were in line with the totality of the evidence before him. The most pertinent evidence, as he pointed out, was that the Appellant’s perceived lack of skills was not born out by the vocational evidence.
In his submissions on appeal, the Appellant, whilst on the one hand asserting that he was, and indeed has always been, certified totally unfit for work, equally states “my solicitor told me not to take any form of employment or it would risk my case, whereas [the Respondent’s solicitors] said I should have been out looking for work.” In support of this assertion, the Appellant has submitted an extract of a letter from his solicitors to him, but it appears that he has misunderstood the advice contained therein. That advice was to the effect that the Appellant should not engage in employment “that is contrary to the recommendations of your treating doctor”.
In his submissions, the Appellant reiterates his assertion that he had “medical certificates saying I cannot work due to my injury and the pain I was in.” He goes on to state “I was taking medication which stopped me from driving or operating machinery. This medication also made me drowsy. I was also very sick most of the time as some of the medication did not agree with me”.
As to this assertion, there is simply no medical or other evidence in support of that claim.
Ultimately, it must be said that the Appellant’s assertion that he was unfit for any form of employment was not born out by the totality of the evidence before the Arbitrator. Whilst I can understand his dissatisfaction with the Arbitrator’s determination in light of the certificates he had from Dr Murdoch, the remaining evidence before the Arbitrator simply did not support a finding that the Appellant was totally unfit for work.
Mere disagreement with the outcome of an Arbitrator’s determination is not a proper basis for appeal. As Deputy President Fleming said in Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34:
“Where the parties are accorded procedural fairness and the Arbitrator has taken the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate, on review by a Presidential member to interfere with the Arbitrator’s decision”.
In the present case, I am not satisfied that the Appellant has demonstrated that he has been denied ‘procedural fairness’ nor that the Arbitrator has failed to take all relevant factors and evidence into account or fairly and lawfully determine his claim. The Arbitrator’s decision was consistent with the totality of the evidence before him.
CONCLUSION
The Arbitrator’s ‘Statement of Reasons’ is both detailed and thorough, and provides an extensive analysis of the legislative provisions with reference to the whole of the evidence before him. The Appellant has failed to demonstrate that the Arbitrator has made any errors either of law, fact or discretion.
Any complaints the Appellant may have as to the conduct of his legal representatives is a matter more properly dealt with by the Legal Services Commission.
DECISION
The decision of the Arbitrator dated 22 October 2004 is confirmed.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
28 September 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.
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