Haddadi v Bunnings Group Limited
[2010] NSWWCCPD 43
•23 April 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Haddadi v Bunnings Group Limited [2010] NSWWCCPD 43 | ||||
| APPELLANT: | Kamran Haddadi | ||||
| RESPONDENT: | Bunnings Group Limited | ||||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-7512/09 | ||||
| ARBITRATOR: | Mr R O’Moore | ||||
| DATE OF ARBITRATOR’S DECISION: | 1 December 2009 | ||||
| DATE OF APPEAL DECISION: | 23 April 2010 | ||||
| SUBJECT MATTER OF DECISION: | Section 40(2A) of the Workers Compensation Act 1987; suitable employment; unreasonable rejection of suitable employment | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Carroll & O’Dea | |||
| Respondent: | Lucas & Staggs | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 1 December 2009 is revoked and the matter is remitted to a different Arbitrator for the applicant worker’s entitlements to compensation to be re-determined in accordance with the reasons in this decision. | ||||
| The respondent employer is to pay the applicant worker’s cost of the appeal, as agreed or assessed. | |||||
BACKGROUND
The appellant worker, Mr Haddadi, started work with the respondent employer, Bunnings Group Limited (‘Bunnings’), as a co-ordinator at its Dural store in May 2006. He performed a number of administrative duties, but also lifted stock, such as timber beams.
On 21 July 2006, Mr Haddadi tripped on a staircase at the Dural warehouse and fell down several steps, injuring his shoulders and right knee. The injury was reported and liability accepted. Mr Haddadi’s right shoulder symptoms continued and made it difficult for him to lift stock. As no suitable duties were available at Dural, he was transferred to Bunnings’ Norwest store, where he assisted the building co-ordinator.
On 30 November 2006, Mr Haddadi underwent surgery to his right shoulder, and was unfit for any work until late February 2007. He ultimately returned to restricted duties at Norwest in 2007 and underwent a manipulation to his right shoulder under a general anaesthetic in November 2007. He returned to full-time duties, but with a 10 kg lifting restriction and a restriction on lifting above shoulder level. He was not to pull or push heavy material. Notwithstanding these restrictions, Mr Haddadi’s evidence is that Bunnings expected him to lift items that weighed more than 15 kg.
By letter dated 11 August 2008, Mr Haddadi resigned from his position as a co-ordinator with Bunnings, but requested that he be provided with part-time employment for between 15 and 20 hours per week, but only between 5.00 pm and 9.00 pm Monday to Friday. By letter dated 4 September 2008, Bunnings’ operations manager, Shane Fuller, stated that it was not possible to accommodate Mr Haddadi’s request, and that his employment would cease immediately.
On a date not identified in the evidence, Mr Haddadi purchased a franchise known as “Jim’s Building and Maintenance”, a business he continues to operate in his own name.
By letter dated 22 January 2009, Mr Haddadi’s solicitors, Carroll & O’Dea, claimed weekly compensation on his behalf from 11 August 2008 to date and continuing, in the sum of $850.00 per week.
By letter dated 8 July 2009, Bunnings’ workers compensation insurer, CGU Workers Compensation (NSW) Limited (‘CGU’), disputed liability on the grounds that, by reason of his resignation on 11 August 2008, Mr Haddadi was “deemed to have rejected suitable employment”, and his entitlement to weekly compensation was to be calculated in accordance with section 40(2A) of the Workers Compensation Act 1987 (‘the 1987Act’). Applying the terms of that subsection, it was asserted that Mr Haddadi had no entitlement to weekly compensation because his current weekly wage rate whilst on suitable employment ($1,000.06) equalled his current weekly wage rate in his pre-injury employment.
In an Application to resolve a dispute registered in the Commission on 17 September 2009, Mr Haddadi sought weekly compensation in the sum of $1,000.06 from 11 August 2008 to date and continuing. In a Reply filed on 21 October 2009, Bunnings disputed liability on the grounds set out in CGU’s letter of 8 July 2009.
The Commission listed the matter for conciliation and arbitration on 18 November 2009. The matter did not conclude and the Arbitrator listed it for further hearing on 24 November 2009. The Arbitrator gave leave for Mr Haddadi to give brief oral evidence, but counsel for Bunnings made no application for leave to cross-examine.
In a reserved decision delivered on 1 December 2009, the Arbitrator made an award in favour of the respondent on the ground that Mr Haddadi had unreasonably rejected suitable employment and, in the alternative, that his ability to earn was equal to or exceeded his probable earnings but for his injury. He found that Mr Haddadi’s claim for medical expenses failed “for the same reasons”.
The Commission issued a Certificate of Determination on 1 December 2009 in the following terms:
“The determination of the Commission in this matter is as follows:
1. Award Respondent on the Applicant’s Application for weekly compensation and medical expenses.
2. No order as to costs.”
In an appeal filed on 22 December 2009, Mr Haddadi seeks leave to challenge the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Mr Haddadi’s evidence is set out in his statement of 1 September 2009 and in brief oral evidence before the Arbitrator on 24 November 2009.
Mr Haddadi is currently 43 years of age. He completed his Higher School Certificate in 1986 and then commenced a business/accounting degree. He worked as an accountant for various periods between 1990 and 1999. Between 1998 and 2005, he worked as a manager with Woolworths, and between 2005 and 2006, he worked as an area supervisor with Ikea, until he started with Bunnings as a co-ordinator in May 2006.
Mr Haddadi was initially employed as a building co-ordinator. His duties required him to look after rostering, budgeting for the department, mail, new product catalogues, running daily team meetings, downloading sales figures, and opening and closing the store. In addition, he lifted stock, such as timber beams weighing approximately 12 kg each. He would often pull pallets loaded with timber, bags of cement and/or sand. He also displayed catalogue stock. This required him to push or pull heavy pallet jacks loaded with stock into position in the morning and evening.
On 21 July 2006, he tripped and fell down several stairs at the store, injuring his shoulders and right knee. Though he only had four days off work initially, his symptoms did not resolve, and he was certified fit for restricted duties, with no lifting above two kilograms with his right arm.
Due to a lack of suitable duties at Dural, Mr Haddadi transferred to Bunnings’ Norwest store in about October 2006. At Norwest, Mr Haddadi was employed in a “floating position”. He was required to assist the building co-ordinator, which, in the beginning, involved lifting and displaying promotional material, and assisting customers in carrying their purchases.
His condition deteriorated and he underwent a subacromial bursectomy to his right shoulder at the hands of Dr Duckworth on 30 November 2006. The surgery confirmed that there was no rotator cuff tear or biceps pathology. He made reasonable progress after the surgery, but still had some stiffness at the end of January 2007.
Mr Haddadi returned to suitable duties on 26 February 2007, when he was restricted to greeting customers and assisting in the aisle. He alleged that management requested him to undertake lifting tasks in or about March or April 2007, though his general practitioner had not directed him to do so. His shoulder remained painful throughout 2007, and felt worse when he lifted goods at work. At this stage, his general practitioner continued to certify him to be fit only for greeting customers.
Because of his continuing symptoms, Mr Haddadi had a cortisone injection in his shoulder on 27 June 2007. On his return to work, he was required to lift and perform his duties, though he was only certified fit to perform training duties and rostering.
His pain continued and he consulted Rana Obeid, injury management co-ordinator at Bunnings, and spoke with his rehabilitation provider. He was told to stick to his restrictions, but the complex manager told him he had to perform his duties, despite the restrictions.
On 30 November 2007, Mr Haddadi underwent a manipulation under anaesthetic. This resulted in an improved range of movement, but abduction remained restricted. He continued to experience pain in his shoulder, worse in cold weather, when the pain travelled to his neck.
On his return to work in December 2007, Mr Haddadi’s shoulder remained painful. In February 2008, he spoke to the complex manager about problems with lifting and his work restrictions, and was told, “all staff had to pull their weight”. It was impressed on him that every manager had to do physical work and lead by example. Some items weighed more than 15 kg and some up to 40 kg. The heavier items required two people to lift them, but often no one was available to assist.
In May 2008, Mr Haddadi was certified fit for his pre-injury duties, but with a 10 kg lifting restriction, a restriction on lifting above shoulder level, and a restriction on pushing or pulling heavy material. Mr Haddadi states that he was “expected” to work above his suitable duties and that “regular lifting” was part of his job. Though he was in pain, he continued to lift items at work.
Mr Haddadi alleged that CGU stopped paying for physiotherapy and, as he was unable to afford the ongoing cost, he had to cease that treatment. Without treatment, he stated that his shoulder would “freeze up”.
Because of his ongoing symptoms, the expectation that he perform duties outside his “WorkCover restrictions”, and because he was not receiving physiotherapy treatment, he asked Ms Obeid if he could become a team member in the tool shop, because that work did not involve lifting. He alleges that he was told there was “no problem” with becoming a sales assistant, and that positions were available in the tool shop. Mr Haddadi claimed that, as a team member, he would only need to do customer service and sales, and only small items would need to be moved, such as drill bits, tape measures and other drill devices. He also claimed to have spoken to the complex manager, Shane, and the operations manager, Jack, about changing his position, and was told that it was not a problem, but that he needed to put it in writing.
Mr Haddadi resigned on 11 August 2008. His letter of resignation is in the following terms:
“Attention: Jack/Shane,
I am advising you that I will be stepping down from my position as HEAT Coordinator From [sic] the 11th August. I am giving 8 weeks notice included in the 8 weeks is 4 weeks annual leave. I am requesting that I remain as a member of the Norwest store, but as a Permanent part-time member of staff (min 15 hrs – max 20 hrs). My reasons for stepping down from my position are personal and I have taken great thought before making my decision.
My availability is as follows: Monday – Friday 5 pm to 9 pm.” (emphasis included in original)
Mr Haddadi stated that the purpose of his letter was to confirm his discussions with Ms Obeid that he would step down from his position as a co-ordinator and become a team member. That change would mean that a lot of the physical activities involved in being a co-ordinator would be reduced.
On 4 September 2008, Mr Fuller handed Mr Haddadi a letter in the following terms:
“Dear Kamran
I refer to your letter dated 11 August 2008 resigning from your role as a Coordinator and requesting a part time team member position at Bunnings Norwest.
I note that your availability is only from Monday to Friday 5:00 pm to 9:00 pm. As you are aware we require team members to be flexible and work a variety of hours including mornings and weekends and as such it is not possible for us to accommodate your request.
Given that you have resigned your role as a coordinator we are unable to accommodate your request for part time work based on your limited availability. I confirm that your employment with Bunnings will cease. Given that you were scheduled to be on leave in any event from tomorrow evening, in order to assist you we have made the decision to pay you one month in lieu of notice and have your employment cease effective today.”
Mr Haddadi disputed the contents of Mr Fuller’s letter, and stated that he knew that Bunnings “required people to only work flexible hours” with the only restriction being that they be available for a minimum of five days per week. He claims that he visited the store a few weeks later and saw a sign advertising for a position “for night shift”.
Mr Haddadi claimed that he would not have resigned his position had he been aware that there was no position available for him at Bunnings Norwest. He was unaware that, by resigning and “attempting to gain more suitable employment within Bunnings”, he was putting his workers’ compensation rights at risk.
Mr Haddadi then added (at [74] of his statement):
“I had been thinking of trying to do other duties if it was not going to work out at Bunning’s [sic]. I immediately bought a franchise which is known as Jim’s Building and Maintenance. The area I service is in the Pennant Hills area.”
He took this work because he believed it would “fit in” with the suitable duties listed in his medical certificates, which (by that time) restricted him to lifting 13 kg. His work in the franchise involves “changing light globes, repairing fly screens, and perhaps doing some painting”.
In March 2009, Dr Amjad, general practitioner, reduced Mr Haddadi’s working hours from eight per day five days per week to six per day five days per week, and his lifting restriction to eight kilograms. Mr Haddadi asserted that he picks up about “10 – 15 hours per week”, if he is lucky, through his franchise. He charged on average $40 per hour. He continued to suffer ongoing “severe pain” in his right shoulder, neck and right knee.
Rana Obeid
In response to Mr Haddadi’s statement, Ms Obeid prepared a statement on 20 October 2009. She denied that she advised the worker that there was a position available for him in the tool shop and added that, as an injury management co-ordinator, she did not have authority to offer a position in the warehouse. She added that team members were required to work flexible hours from 6.00 am until 11.00 pm, and to perform manual handling tasks, in addition to customer service. She attached to her statement a detailed description of the physical requirements of work in the tool shop. That description included frequent lifting of stock weighing between 2 and 40 kg, together with pulling and pushing pallet jacks. The tool shop sells small, light items, but also sells heavy items such as water pressure cleaners, welders and compound saws. She said that the role of a co-ordinator required less manual handling than the role of a team member. A co-ordinator is a manager who was required to plan, organise and delegate tasks to his team.
Ms Obeid spoke with Mr Haddadi at a training session on 12 August 2008. Her file note of that conversation is as follows:
“On 12 Aug 2008 I called Kamran following a conversation with him at the Rosehill support office during a training session. At that time, Kamran informed me that he dislikes Bunnings and wants to look for employment somewhere else. He saw a specialist for a second opinion (not through workers compensation claim) who advised that Kamran might have an ongoing restriction. Kamran indicated that he has a solicitor involved. Kamran asked whether CGU or Bunnings can offer anything to help him out [sic] find employment.
I called Kamran back on the same day following a conversation with CGU. I advised Kamran that if he wishes to leave Bunnings he can seek alternative employment himself. There is no requirement to provide job-seeking assistance if he is fit for pre-injury duties.
Kamran’s tone of voice changed immediately stating that he can’t cope working full hours at Bunnings on [a] concrete floor and handling the cold weather. Kamran stated that he wants to be a team member on 15 or 20 hours per week and remove himself from the responsibility of being a coordinator.
I expressed to Kamran that I do not understand this contradiction.
– first, he states that he is unable to work at Bunnings due to concrete floors and [a] cold environment yet he is happy to work part time.
– second, I indicated that team members are required to do manual handling which is not a requirement for coordinators who manage and lead our business. Kamran disagreed and indicated that coordinators are under pressure and must do the manual handling themselves whilst team members do what they can. I informed Kamran that as a team leader he needs to utilise his team effectively through correct rostering and delegating. Leaders focus on planning and organising rather than do[ing] tasks themselves.
We ended the conversation and I asked Kamran to put his request to transfer to part time team member in writing and send a copy to me. I advised Kamran the store management make the decision whether a team member role in the tool shop is available. Kamran agreed that he will send [a] letter today.”
Medical evidence
Mr Haddadi’s medical case initially consisted of reports from three forensic specialists, Associate Professor Bauze (qualified by the insurer), emeritus orthopaedic consultant, dated 17 November 2006, Dr Bodel, orthopaedic surgeon, dated 2 August 2007, and Dr Fearnside, neurological surgeon, dated 5 August 2008. At the arbitration hearing, counsel for Bunnings objected to the worker relying on more than one forensic medical report. In response, counsel for Mr Haddadi said, “We’ll just take the last one” (T8.21). I assume counsel was referring to the report from Dr Fearnside.
Dr Fearnside examined Mr Haddadi for medico-legal purposes on 5 August 2008, and prepared a report on the same date. His history of Mr Haddadi’s injury and treatment is substantially consistent with Mr Haddadi’s evidence. He added, however, that Mr Haddadi experienced intermittent pain in his right knee, characterised by exacerbations and remissions. Dr Fearnside recorded that the worker had developed chronic aching in his left shoulder, possibly from overuse. An ultrasound of the left shoulder in February 2007 revealed a partial tear of the supraspinatus tendon. On examination, there was weakness on abduction of the left shoulder.
Dr Fearnside recorded that Mr Haddadi tried to avoid manual work if possible, but he needed to move some items, even an air conditioner. He was working full-time and “coping with his job”. Mr Haddadi complained of chronic aching in his right shoulder, which was worse in cold weather, when it was associated with a loss of range of movement. He had recently developed pain in the carpometacarpal joint of the right thumb, and weakness in the right thumb that did not seem to be related to the present matter. The pain in the left shoulder was only occasional, and was activity-related. The pain in the right knee was also occasional, and limited his ability to play soccer.
Dr Fearnside concluded that Mr Haddadi was fit to continue his full-time work with Bunnings, but he should permanently avoid heavy manual work. Any lifting should be done with assistance. The doctor assessed the worker to have a seven per cent impairment of his right upper extremity, which converted to a four per cent whole person impairment. He assessed a nil impairment as a result of the condition of the worker’s right knee and left shoulder.
Dr Amjad reported to CGU on 7 April 2009. Dr Amjad had a case conference with the worker, Ms Obeid and Ms Watson, occupational therapist, on 29 May 2008, when it was agreed that the worker would attempt pre-injury duties, but with restrictions. Dr Amjad saw the worker again on 18 October 2008, when he recorded that he had left Bunnings and started his own business.
Dr Amjad saw Mr Haddadi on 12 January 2009, and recorded that there had been no further improvement. He also noted that the worker complained of numbness in his right hand. Dr Amjad advised the worker to see Dr Duckworth and a neurologist for nerve conduction studies.
Dr Amjad stated that Mr Haddadi had reduced his hours to six (per day), as he “could not continue working more than that due to lack of treatment, ie, physiotherapy, hydrotherapy and gym”.
At review on 25 March 2009, Dr Amjad recorded that the worker’s condition showed no improvement and that he was feeling “worse than before” due to a lack of approval for physiotherapy, hydrotherapy and gym.
Rehabilitation reports
At the request of CGU, Mr Haddadi came under the care of WorkForce Australia, rehabilitation providers, in September 2006. The initial worksite assessment report from that organisation, dated 18 September 2006, confirmed that Mr Haddadi’s pre-injury duties required him to occasionally lift materials (timber, plastic and metal objects) weighing between 5 and 20 kg. He was also required to push and/or pull hand pallet jacks or trolleys.
In a further report from Ms Watson, occupational therapist with Workforce Australia, dated 15 November 2006, it was recorded that Mr Haddadi’s pre-injury duties involved periods of “frequent upper limb coordination and occasional reaching shelves above shoulder level”.
Ms Watson reported again on 29 January 2007 that Mr Haddadi continued to have a limited range of motion in his right shoulder, which prevented him from being unable to function at an appropriate level to undertake his pre-injury duties.
In her progress report of 27 February 2008, Ms Watson recorded that Mr Haddadi was working seven hours a day, five days a week, but still had a reduced range of motion of his right upper limb, with increased pain in his right shoulder with sudden movements. His lifting was restricted to up to 10 kg, with no lifting above shoulder level. She essentially repeated the same matters in her progress report of 28 March 2008.
In her report of 30 April 2008, Ms Watson recorded that the worker’s condition had continued to improve with physiotherapy and hydrotherapy, and that she anticipated a return to pre-injury duties. Ms Watson’s report included, among other things, the following entry:
“Discussed that Mr Haddadi’s position as a Team Leader does not require him to perform manual work, however, Mr Haddadi did not agree to this. It was agreed that this would be dealt with internally, however Mr Haddadi was not to work outside his medical restrictions.”
Ms Watson also noted that Mr Haddadi’s restrictions were “very limiting”, and would have to be clarified with Dr Amjad at a medical conference.
Ms Watson reported again on 26 May 2008. By that time, Mr Haddadi had upgraded to eight hours per day five days a week, but with the following restrictions: on lifting above 10 kg, no lifting above shoulder level, and no pushing or pulling. Mr Haddadi reported “continued restriction with heavy manual handling tasks as a result of continued decreased strength and range of motion”.
WorkForce Australia arranged for one of its occupational therapists to conduct a worksite review on 13 May 2008. Ms Watson reported on that review as follows:
“Mr Haddadi reported that he believed he was unable to perform pre-injury duties, as he believes his position as a Co-ordinator requires him to push/pull and lift above [his] head. Mr Haddadi reported that although he was certified with a ‘no pushing/pulling’ restriction he was continuing to push and pull stock as he did not have support from the store or the availability of his team to delegate such duties.
WorkFocus Australia therefore undertook discussions with Mr Mendocca, Complex Manager, [and] Mr Shane Fuller who advised that as a Coordinator, Mr Haddadi was required to delegate manual handling tasks and his pre-injury duties did not require the manual handling tasks as advised by Mr Haddadi. WorkFocus Australia also highlighted that Mr Haddadi had again reported working outside of his medical restrictions. Mr Mendocca advised that he would therefore discuss this again with Mr Haddadi.”
Mr Haddadi advised Ms Watson that he believed he was unable to perform his pre-injury duties, as he believed they were not within his current medical restrictions and required him to push/pull and to lift overhead.
Ms Watson reported again on 31 July 2008, when she confirmed that Mr Haddadi had been certified fit for pre-injury duties, with restrictions, from 12 July 2008. Those restrictions were the same as previously notified, namely, no lifting greater than 10 kg, no lifting above shoulder level, no pushing/pulling, and no loading/unloading above 10 kg.
Ms Watson prepared a closure report on 9 September 2008, in which she confirmed that, though Mr Haddadi had been certified fit for pre-injury duties from 12 July 2008, his medical certificates included restrictions on lifting and pushing/pulling. She also noted that he reported that his shoulder had been aggravated in July 2008, and that he had been off work from 9 July until 11 July 2008. She noted that Mr Haddadi had resigned on 11 August 2008, and that his resignation had been accepted on 4 September 2008.
THE ARBITRATOR’S REASONS
In a Statement of Reasons (‘Reasons’) delivered on 1 December 2009, the Arbitrator made the following findings:
(a)in view of the business receipts in evidence, Mr Haddadi set up his business in July/August 2008;
(b)Mr Haddadi’s evidence in his statement was inconsistent with his letter of resignation and offer to work part-time between 5.00 pm and 9.00 pm;
(c)he was not satisfied, given that Mr Haddadi had 20 workers under him, that he had no alternative but to exceed his lifting restrictions. The Arbitrator accepted that he may have done so, but did not accept that the employer should be held liable for that;
(d)he did not accept that Mr Haddadi could not go on with his work duties because of the employer’s breach of the lifting restrictions;
(e)Mr Haddadi had unreasonably rejected suitable employment by unreasonably discontinuing that employment with Bunnings;
(f)as a team leader, Mr Haddadi “had the opportunity to manage excessive lifting restrictions” or to take action if the lifting restrictions were being exceeded by the employer;
(g)Mr Haddadi’s actions and resignation did not support his complaint about the breach by the employer of his lifting restrictions as the reason for his resignation when considered in the light of his undertaking the new franchise commitment at that time. Mr Haddadi’s offer to be available for duties from 5.00 pm until 9.00 pm in a job that was more onerous than his pre-injury job was consistent with his shift in priorities to his franchise;
(h)he was not satisfied that the employer should “pick up the large liability sought by the worker”;
(i)applying section 40(A), the difference between the wage for the worker’s pre-injury employment and the current weekly wage rate for his suitable employment was nil;
(j)in the alternative, he was not satisfied that Mr Haddadi had properly disclosed his personal earnings since 1 July 2009, and he doubted that he had an economic loss post 1 July 2009. In respect of the period from 1 September 2008 until 30 June 2009, the Arbitrator assessed the value of Mr Haddadi’s work to his business at over $1,000 per week, and there was therefore no economic loss to the worker on the claim, and
(k)the worker’s claim for medical expenses failed “for the same reasons”.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)determining that Mr Haddadi had unreasonably refused suitable employment;
(b)determining that Mr Haddadi did not suffer any economic loss;
(c)his application of section 40 and 40(2A) of the 1987 Act; and
(d)determining that Mr Haddadi’s claim for medical expenses had to fail without providing any, or any proper, reasons.
SUBMISSIONS, DISCUSSION AND FINDINGS
Unreasonable refusal of suitable employment
It was submitted on behalf of Mr Haddadi that:
(a)the employer carries the onus of proof that it provided Mr Haddadi with suitable employment and it failed to discharge that onus as it failed to challenge Mr Haddadi’s evidence that he was expected to work beyond his lifting restrictions and failed to call “rebuttal evidence”;
(b)the Arbitrator failed to consider that the reasonableness of the worker’s refusal of suitable duties depended on his knowledge at the relevant time having regard to all the circumstances known to him and affecting him (Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345) (‘Fazlic’);
(c)Mr Haddadi’s evidence was that:
(i)at the time he resigned, the respondent was not providing him with suitable duties;
(ii)he had complained to the respondent for about two years about his suitable duties and that he was working outside his restrictions. He also complained to his general practitioner and the insurer with no assistance or relief;
(iii)he made enquiries with the respondent about alternative duties, which, in his opinion, were suitable;
(iv)he requested a move to the tool shop and Bunnings displayed his photo and advertised him as an expert in the tool shop. He spoke to Ms Obeid;
(v)the only hours available to work which were within his capabilities were from 5.00 pm until 9.00 pm in the tool shop;
(vi)due to the unavailability of suitable duties, Mr Haddadi sought alternative suitable duties.
It was submitted on behalf of the respondent that:
(a)Mr Haddadi had returned to his pre-injury hours and duties with some restrictions;
(b)the worker’s evidence that he was expected to work beyond his lifting restrictions was contradicted by Ms Obeid who said that a team leader had to use his team effectively through correct rostering and delegating;
(c)Mr Haddadi’s letter of 11 August 2008 was unequivocal. He was “stepping down” because of “personal” reasons. He did not say that the work was beyond his capacity or that he had been required to perform duties that were outside his certification;
(d)the worker’s offer to work for 15 to 20 hours per week was contrary to the certificate from Dr Amjad of 6 August 2008 that certified him fit for full-time hours;
(e)Mr Haddadi’s request to work between 5.00 pm and 9.00 pm was consistent with him working in his own business during the day and wanting to work part-time in the evening to supplement his income;
(f)the respondent had at all times maintained that Mr Haddadi was provided with suitable duties and that his work as a co-ordinator did not require him to work in breach of the restrictions in his certificates;
(g)the respondent disputed that Mr Haddadi complained about his suitable duties for nearly two years. When Mr Haddadi spoke to the area manager in October 2006, he was transferred to Norwest. There was no evidence that Mr Haddadi complained to his general practitioner or to the insurer about his suitable duties;
(h)it is not disputed that Mr Haddadi made enquiries about alternative duties, but the respondent disputed the suitability of the job of a team member in the tool shop, and
(i)the receipts for purchases of materials between June and August 2008 make it clear that Mr Haddadi had already commenced his business at the time he wrote the letter on 11 August 2008, or such commencement was imminent.
I must determine two questions under this issue. First, was Mr Haddadi employed in suitable employment at the time he resigned and, second, was his resignation an unreasonable rejection of that employment?
Whether the duties Mr Haddadi had been performing at the time of his resignation were suitable depends on whether those duties required him to engage in activities outside the certificate provided by Dr Amjad on 6 August 2008. That certificate provided the following restrictions: no lifting above 12.5 kilograms, no lifting above shoulder level, and no pulling or pushing. Mr Haddadi has complained in his statement, and to Ms Watson, that he was expected to “perform duties outside” his WorkCover restrictions. The respondent’s representatives, on the other hand, told Ms Watson that that was not the case and that his pre-injury duties did not require him to lift and carry above five kilograms.
It is relevant that the respondent has not called evidence dealing with Mr Haddadi’s allegation that he spoke to his managers about the problems with lifting and his work restrictions. Though the Reply asserted that a statement was “to be supplied” from Mr Fuller, none was filed and the respondent has offered no explanation for that failure. Contrary to the respondent’s submission, Ms Obeid has not properly dealt with the suitability of Mr Haddadi’s duties, but merely stated that managers, such as Mr Haddadi, had to plan and delegate. That is no doubt true, but even the best plans are imperfect and, given the nature of the respondent’s hardware business, it is understandable that Mr Haddadi would be expected lift heavy items, and reach above shoulder height, from time to time while working in his pre-injury job as a co-ordinator. Such activities would make those duties unsuitable.
Ms Obeid’s evidence offers some limited corroboration of Mr Haddadi’s claim in that she confirms that he had been told he might have a permanent restriction and that he asked her if Bunnings could “help him out”. It seems unlikely that he would have made that request if his duties were within the medical restrictions set by Dr Amjad.
Dr Fearnside corroborates Mr Haddadi’s evidence that his duties required him to lift weights in excess of his restrictions. He recorded that Mr Haddadi was managing the electrical and tool departments at Norwest and that he had developed chronic aching in the left shoulder, “possibly from overuse”, and that if he worked on the weekends he would “sometimes need to do some manual work to help his colleagues”. The doctor added that, though Mr Haddadi tried to avoid manual work, he “did need to move some items, even an air conditioner”. Notwithstanding this history, Dr Fearnside also recorded that Mr Haddadi was “working full-time and coping with his job”. The doctor concluded that Mr Haddadi was fit to continue his work with Bunnings and could work “full-time in his present job”. However, the doctor added that Mr Haddadi should avoid heavy manual work and seek assistance with lifting. If it was not possible for Mr Haddadi to avoid heavy lifting, or to obtain assistance on all occasions, it is difficult to see how his pre-injury duties could be said to be suitable.
The only other medical evidence potentially touching on the suitability of Mr Haddadi’s duties is in Dr Amjad’s report of 7 April 2009. After a case meeting on 29 May 2008, Dr Amjad certified Mr Haddadi fit for pre-injury duties, but with lifting restrictions. Dr Amjad next saw the worker on 18 October 2008 and recorded:
“He was doing work under restrictive duties and on medication until 25th September 2008. I saw him again on 18th October 2008. As you are aware, he left Bunnings and started his own business within the limitation of [his] work conditions.”
This report is unhelpful in resolving the dispute before me, as it has not directly addressed the issue. It does seem surprising that, if Mr Haddadi’s duties were unsuitable, as he claims, Dr Amjad did not comment on that fact in his report. It would have been helpful if Mr Haddadi’s solicitors had obtained a report from Dr Amjad.
On balance, however, having particular regard to Dr Fearnside’s corroborative evidence, I am satisfied that Mr Haddadi’s pre-injury duties did require him to occasionally engage in activities outside the restrictions in his WorkCover certificates and, as a result, those duties were not “suitable employment” within the terms of section 43 of the legislation. Whilst Dr Fearnside felt that Mr Haddadi was fit to continue with his work, he added a critical proviso, namely that the worker should avoid heavy manual work and seek assistance with lifting. Mr Haddadi has consistently maintained that he was not only unable to avoid such activities, but that he was expected to perform them because all staff had to “pull their weight”. In the absence of any persuasive evidence from the respondent’s managers on this issue, I accept Mr Haddadi’s evidence.
If I am wrong on this issue, it is appropriate to consider the second question, namely, whether Mr Haddadi unreasonably rejected suitable employment. It was submitted that he was entitled to have regard to “all of the circumstances known to him and affecting him” (Fazlic at [13]). Any assessment of whether Mr Haddadi’s conduct was unreasonable depends on an assessment of his state of knowledge at that time (per Davies A-JA, Handley and Beazley JJA agreeing, in Freightcorp v Duncan [2000] NSWCA 309 at [19], citing Fazlic). The South Australian Workers Compensation Tribunal took a similar approach in Hines v WorkCover/HIH (Transfer Maintenance Pty Ltd) Corporation [2000] SAWCT 171, where Deputy President Gilchrist held that, though a worker’s personal circumstances were not paramount, they had to be taken into account.
His Honour Judge Keating applied these principles in McDonald v North Coast Area Health Service [2009] NSWWCCPD 50. In that case, his Honour held that the worker, a nurse, had not unreasonably refused suitable employment when he resigned because his employer had been unable to accommodate his need to have Mondays and Tuesdays off due to family commitments, though he was available to work on any shift from Tuesday night to Sunday evening.
I have concluded that Mr Haddadi’s resignation did not amount to an unreasonable rejection of suitable employment. Though he has not admitted it, Mr Haddadi clearly resigned to pursue his own business interests by purchasing a well-known building and maintenance franchise. Because of Mr Haddadi’s failure to produce relevant documents, it has not been possible to determine the date on which he purchased the franchise.
However, before Mr Haddadi resigned on 11 August 2008, he purchased tools, equipment and materials between June and August 2008 that were consistent with an intention to commence a home maintenance business. The Arbitrator found that those purchases were evidence that the franchise “set up was occurring in July/August 2008”. Mr Haddadi has not challenged the Arbitrator’s finding on that issue and, in the absence of any documentary evidence to the contrary, which Mr Haddadi was in a position to tender, I have reached the same conclusion.
The resignation letter stated that Mr Haddadi’s reasons for “stepping down” were “personal”. However, his request to be made a permanent part-time member of staff working between 5 pm and 9 pm is consistent with his wishing to devote his time to other activities. Those activities were clearly the franchise business that he had either purchased, or was in the process of purchasing, in August 2008.
That Mr Haddadi wished to commence his own business was not unreasonable. He felt that the work involved in the franchise would “fit in with the suitable duties” on his medical certificates. It gave him a degree of flexibility he did not have at Bunnings. Given his experience and background, and his early success in the business, he is well suited to the kind of work involved in the franchise. If it is successful in the long term, as it appears it will be once it is established, Mr Haddadi may well end up earning more than his pre-injury wage with Bunnings. In these circumstances, the decision to resign was not unreasonable, but perfectly logical and rational. I therefore conclude that, though Mr Haddadi’s evidence was less than forthright on the issue, the decision to resign and purchase a well-known building and maintenance franchise was not an unreasonable rejection of suitable employment.
Section 40 calculation
Working off Mr Haddadi’s Business Activity Statement (‘BAS’) and his statement of 1 September 2009, the Arbitrator estimated that Mr Haddadi had worked 1038 hours in the period 1 July 2009 until 30 September 2009 (‘the September quarter’). The BAS revealed “total sales” for the relevant period of $41,526.00. Mr Haddadi said in his statement that, on average, he charged $40.00 per hour. The Arbitrator divided 40 into $41,526 to get the total number of hours of 1038.
It is submitted on behalf of Mr Haddadi that the Arbitrator erred in his approach because he failed to take into account “goods supplied as opposed to services supplied”. That may well be so, but if the Arbitrator did err in the manner suggested, he did so because of a lack of proper evidence from Mr Haddadi. If Mr Haddadi had worked 1038 hours between 1 July 2009 and 30 September 2009, that would mean he had worked approximately 80 hours per week, which is most unlikely. Clearly, “total sales” included more than just the cost of Mr Haddadi’s labour and the Arbitrator did not take that into account.
It is submitted that Mr Haddadi worked for “about 236” hours from 1 July 2009 to 30 September 2009, an average of 19 hours per week. In his statement, he claimed that he worked only 10-15 hours per week, though added in his oral evidence that his business had improved over the last financial quarter. It was argued that, after subtracting “non capital expenses”, Mr Haddadi’s personal earnings in the September quarter were $667.50 net per week. Mr Haddadi’s solicitor has not explained how he arrived at this figure. Deducting “non capital expenses” ($32,052.00) from “total sales” ($41,526.00) in the BAS gives a difference of $9,474.00. Dividing $9,474.00 by 13 weeks gives $728.77 per week, not $667.50. Dividing $9,474.00 by $40.00 gives 236.8 and I assume this is the basis for the submission that Mr Haddadi only worked an average of 19 hours per week in the September quarter.
It is further submitted that the Arbitrator failed to consider that Dr Amjad certified Mr Haddadi fit to work only 30 hours per week since 16 February 2009 and therefore erred in finding him capable of earning more than $1,000.00 per week.
Though no submissions have been made about the award that should be entered on behalf of Mr Haddadi, I infer that he seeks an award for the difference between $667.50 and $862.33. The figure of $862.33 is described as the “net loss per week” (see letter Carroll & O’Dea to Lucas & Stagg dated 13 November 2009) and appears under “Comparable earnings” in the wage schedule. Mr Haddadi’s solicitor has not explained how he arrived at this figure. However it was calculated, it is wrong. The undisputed evidence is that Mr Haddadi’s probable earnings but for his injury were $1,000.00 per week and that is the figure in step one of Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 for probable earnings but for injury.
It follows that the wage schedule is incorrect in several respects. Given the unsatisfactory state of the evidence generally, and given that Mr Haddadi has made no submissions on the exercise of the section 40 discretion, which is clearly a relevant issue in this case, it is necessary for the matter to be remitted to a different Arbitrator for Mr Haddadi’s entitlement to weekly compensation to be re-determined.
Medical expenses
The Arbitrator found that Mr Haddadi’s claim for medical expenses “failed for the same reasons” as the claim for weekly compensation failed. That does not follow. That a worker is not entitled to weekly compensation does not determine his or her entitlement to compensation for medical expenses. The section 54 notice did not dispute Mr Haddadi’s entitlement to medical expenses. However, Mr Haddadi has not sought a specific amount for medical expenses, but merely claimed “ongoing physiotherapy, gym and hydrotherapy”. The Commission has no power to make an award in the nature of a declaration (Widdup v Hamilton [2006] NSWWCCPD 258; (2006) 5 DDCR 85).
The Commission can make a general award for the payment of section 60 expenses, but such an award is of limited utility if the specific treatment sought is disputed. Whether it is disputed in the present matter is unclear. The insurer properly sought further information from Dr Amjad on 22 August 2008, but none was provided. There is no evidence that Mr Haddadi has ever claimed an amount for unpaid physiotherapy or hydrotherapy. This needs to be clarified. In the event that no specific amount is sought, there is no reason, on the current evidence, why Mr Haddadi would not be entitled to a general award for payment of his section 60 expenses and the Arbitrator erred in not making such an award. As the matter must be re-determined for other reasons, it is appropriate that the situation regarding section 60 expenses be clarified at the re-determination.
CONCLUSION
Having conducted a review on the merits, I have determined that the employment the respondent offered to Mr Haddadi after his injury was not suitable employment within the terms of the legislation and that, even if it was, his resignation on 11 August 2008 was not an unreasonable refusal of that employment. He is therefore entitled to have his claim for weekly compensation determined under section 40(2).
Though the future conduct of this matter is a matter for the Arbitrator who conducts the re-determination, the following matters would seem to be relevant:
(a)given the obvious credit issues involved, this may be an appropriate case for the employer to seek leave to cross-examine the worker;
(b)the respondent will no doubt be entitled, due to Mr Haddadi’s changing circumstances, given that his business is still in its start up phase, to issue a further notice for production on Mr Haddadi requiring production of all relevant financial records relating to his business. Mr Haddadi will be expected to comply fully with that notice;
(c)both sides will need to assess the state of the medical evidence. The respondent may consider it prudent to obtain a supplementary report from Associate Professor Bauze. As Dr Fearnside’s report is now almost two years out of date, Mr Haddadi may wish to consider obtaining a supplementary report from that doctor;
(d)Mr Haddadi will need to file an amended wage schedule;
(e)the position regarding the claim for medical expenses will need to be clarified, and
(f)the respondent may feel it prudent to properly clarify the issues in dispute. I assume that, since its defence under section 40(2A) has failed, CGU will wish to dispute the nature and extent of Mr Haddadi’s incapacity and his entitlement to weekly compensation under section 40(2). That needs to be properly particularised. Given the history of the matter and the way the parties conducted the first arbitration, it is difficult to see that such an issue could prejudice Mr Haddadi. It is clearly in the interests of justice that it be allowed.
In short, the matter needs to be properly prepared by both sides so that the real issues can be argued and determined.
DECISION
The Arbitrator’s determination of 1 December 2009 is revoked and the matter is remitted to a different Arbitrator for the applicant worker’s entitlements to compensation to be re-determined in accordance with the reasons in this decision.
COSTS
The respondent employer is to pay the applicant worker’s cost of the appeal, as agreed or assessed.
Bill Roche
Deputy President
23 April 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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