Hamilton v D & LE Paddon Pty Limited

[2008] NSWWCCPD 138

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Hamilton v D & LE Paddon Pty Limited [2008] NSWWCCPD 138
APPELLANT:		Peter Hamilton
RESPONDENT:		D & LE Paddon Pty Limited
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC A1004091-08
DATE OF ARBITRATOR’S DECISION:		12 August 2008
DATE OF APPEAL DECISION:		20 November 2008
SUBJECT MATTER OF DECISION:		Partial incapacity, and sections 38 and 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		President, Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:		Burke Love McCartney Young
Respondent:		Ellison Tillyard Callanan
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 12 August 2008 is confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1.Mr Hamilton is 67 years of age.  He was injured on 19 October 2007 when he was ploughing a paddock using a tractor at a property owned by D & LE Paddon Pty Ltd (‘Paddon’).  As part of his duties, when he came across a rock in the paddock he was ploughing, he was required to get off his tractor, extract the rock from its position and move it to a nearby hill where the rocks would be collected, pending subsequent removal.

2.As Mr Hamilton bent over to remove a rock he experienced severe pain in his lower back, which radiated down his right leg to his ankle.  He also had numbness in the toes of his right foot.  He was unable to continue with his duties and went home.

3.Prior to the incident on 19 October 2007, Mr Hamilton had never previously experienced pain like that in his back and legs. 

4.The next day Mr Hamilton attended his general practitioner, Dr Snedden, and was referred for x-rays and a CT scan.  He subsequently attended a physiotherapist and a chiropractor for treatment as well as undertaking swimming, walking for exercise and stretching. 

5.In early December 2007 Mr Hamilton attempted to return to work on light duties.  The duties he was given involved tractor work and also cutting vines.  He was able to drive the tractor without incident but found that cutting vines required him to bend and that action severely aggravated his back injury.  As a consequence he was unable to complete his duties and lasted no longer than a few hours. 

6.Mr Hamilton has not returned to work again since he attempted light work in December 2007.  His employment was terminated in early January 2008.

7.Physiotherapy treatment ceased in March 2008 and he has continued on his own exercise program.  He complains of intermittent back pain, which increases in severity with sitting for prolonged periods of time when driving.  He sometimes experiences pain radiating down his right leg.

8.Mr Hamilton’s back is often painful at night and it causes him some discomfort when sleeping.  He has occasional parasthesia in the right foot, which also occurs mainly at night.  He avoids activities that involve bending, twisting, or lifting, as these actions cause him severe pain.

9.Mr Hamilton was over 65 years of age at the time of his injury, but had no intention of retiring until he was physically unfit for work.  But for the injury, he expected to work on for at least another two or three years. 

10.On 28 May 2008, Mr Hamilton lodged an ‘Application to Resolve a Dispute’ in the Commission claiming weekly compensation at a rate of $560.00 per week from 19 April 2008 to date and continuing and lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of 4% whole person impairment as a result of the injury to his back on 19 October 2007.

11.The matter was listed for conciliation and arbitration on 1 August 2008.  Whilst Paddon conceded injury, the issue in dispute was whether Mr Hamilton had an incapacity for work as a result of the work injury.  The parties were unable to reach agreement by way of settlement and the matter proceeded to an arbitration hearing.  Both parties were legally represented and both made oral submissions at the hearing.  The parties relied on documentary evidence and Paddon also relied on a DVD surveillance recording.  No oral evidence was given at the hearing.  At the conclusion of the hearing, the Arbitrator reserved and issued a ‘Certificate of Determination’ together with a written Statement of Reasons (‘Reasons’) on 12 August 2008.  It is from this decision that Mr Hamilton now seeks leave to appeal.

THE DECISION UNDER REVIEW

12.The ‘Certificate of Determination’ dated 12 August 2008 records the Arbitrator’s orders as follows:

“(1)   That the Respondent pay the Applicant weekly benefits compensation from 19 April 2008 to date and continuing at the rate of $123 per week.

(2) That the Claim for lump sum compensation pursuant to Section 66 of the Act be remitted to the Registrar for a referral to an approved medical specialist to assess whole person impairment with respect to the lumbar spine arising from the injury on 19 October 2007. All evidence attached to the application and the reply are to be sent to the AMS. The DVD which was admitted into evidence is to also to be sent to the AMS.

(3)   That the Respondent pay the Applicants costs as agreed or assessed.”

ON THE PAPERS REVIEW

13.Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”

14.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions 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. 

LEAVE

15.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

16.The appeal was filed on 3 September 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

17.The amount of compensation at issue is greater than $5,000.00 and more than 20% of the amount awarded and therefore the threshold in section 352(2)(a) and (b) of the 1998 Act is met.

18.Leave to appeal is granted.

ISSUES ON APPEAL

19.The issues on appeal are whether the Arbitrator either:

(a) erred in failing to find Mr Hamilton was entitled to compensation under section 38 of the 1987 Act, or, in the alternative,

(b) erred in his assessment of the quantum of Mr Hamilton’s entitlements under section 40.

EVIDENCE

Work History

20.Mr Hamilton left school at the age of 10, which was in about 1956.  Between 1957 and 1959 he worked on his family’s property. 

21.In 1959, Mr Hamilton took up employment as a bank teller with the National Australia Bank and remained in that position for approximately five years.

22.In about 1964, Mr Hamilton commenced work on a small crop farm with his father.  He did this work for about 15 years and during this time he was self-employed. 

23.In 1979, Mr Hamilton purchased a business named ‘Coloundra Garden Supplies’.  He remained working in that business for approximately three years until he purchased his own crop farm in Lockyer Valley.  He remained working on his own farm until approximately 1986 when he commenced work for Lindsay Brothers Transport, as a transport manager.

24.Notwithstanding his title as transport manager, his actual duties involved operating a forklift for about 10 hours per week and driving a truck for around 30 hours a week.  Most of the truck driving involved picking up loads of crops from farms.

25.On 30 April 2006, the depot of which Mr Hamilton was manager closed down and he was made involuntarily redundant. 

26.Mr Hamilton commenced employment as a farm labourer for Paddon on 1 January 2007.

Medical Evidence

27.The medical evidence relied on by Mr Hamilton consists of a report, dated 14 April 2008, from Dr John Ashwell, an orthopaedic surgeon, who was retained by Mr Hamilton’s solicitors to provide an opinion for the purpose of this claim. 

28.In addition to Dr Ashwell’s report, Mr Hamilton relies on a medical certificate from Dr Snedden dated 9 May 2008.  Dr Snedden diagnosed the condition as “lumbar back pain/R sciatica/disc [illegible]”.  He certified Mr Hamilton unfit for work from 9 May 2008 to 9 August 2008. 

29.Dr Ashwell recorded a history of while bending to move a rock Mr Hamilton experienced sharp pain in the lower back, which radiated down to his right leg to the ankle.  This was associated with slight paresthesia in his toes.  Dr Ashwell recorded Mr Hamilton’s complaints were of intermittent low back pain, which increased with driving or with activities, which he could only do for a short time.  His back troubled him at night and he avoided heavy lifting.  Dr Ashwell noted that Mr Hamilton complained of intermittent right leg sciatica with driving and occasional paresthesia in his right foot occurring mainly at night.  He experienced intermittent cramps in the right foot involving the toes.  Dr Ashwell noted that on 30 October 2007, an x-ray of the lumbosacral spine showed lateral osteophytes at L2 and L3.  There were degenerative facet joints at L4/L5 and L5/S1 with a forward shift of L4 on L5.  There was mild narrowing of the L4/L5 disc space but no pars defect. 

30.Dr Ashwell noted the CT scan of the lumbo-sacral spine dated 30 October 2007 showed L4/L5 grade 1 degenerative anterolisthesis with moderate spinal stenosis.  There was advanced facet joint degeneration at L4/L5 level.  There was disc bulging but no disc protrusion.

31.Dr Ashwell opined that Mr Hamilton suffered an aggravation of degenerative changes in the lumbar spine as a result of the lifting injury on 19 October 2007.  He noted evidence of age related degenerative changes but no prior significant problems with his spine until he suffered the injury at work on 19 October 2007, causing ongoing symptoms in his back with right leg sciatica.  He opined that the injury was consistent with the history as stated and his employment was a substantial contributing factor.  Dr Ashwell noted that there was radiological evidence of pre-existing degenerative changes in the lumbar spine, which he noted did not cause anymore than expected symptoms with prolonged bending or heavy lifting for someone of Mr Hamilton’s age.  Dr Ashwell opined that the injury came under section 16 of the 1987 Act.

32.In terms of Mr Hamilton’s fitness for work, Dr Ashwell assessed that he was not presently fit for his pre‑injury duties.  He would not be fit for work as a labourer, but could cope with lighter work of limited hours, avoiding any lifting of weights more than 10kg.  He should also avoid repetitive bending.  He expected Mr Hamilton would be fit for light duties mainly in an office for up to 25 hours per week.

33.Dr Ashwell assessed Mr Hamilton as suffering from a permanent impairment of the lumbar spine, DRE2, with no ADL restrictions, of 5% whole person impairment.  He deducted one fifth under section 323 of the 1998 Act, for the pre-existing degenerative changes, which resulted in a 4% whole person impairment finding.

34.Paddon relied on a report of Dr John Watson, orthopaedic surgeon, who examined Mr Hamilton on 11 February 2008.  The history he recorded is consistent with Mr Hamilton’s evidence and the history taken by Dr Ashwell, except that it describes in some greater detail the activity Mr Hamilton was undertaking when he was injured.  He described the activity of attempting to move the rock as “pushing and pulling it then lifting the rock”.  He recorded back pain in the lumbosacral area followed by radiation of pain down the right leg to below the knees, and also pain in the lower mid thigh approximately two weeks later.  He reviewed the CT scan of 30 October 2007 and noted the same findings as Dr Ashwell. 

35.Dr Watson stated that the CT scan confirmed multi-level degenerative disc disease.  He noted no evidence of spinal cord compression of the appropriate nerve roots.  He said:

“Mr Hamilton continues to experience ongoing subjective symptoms of pain with no objective evidence of compression of the spinal cord or of the nerve roots.

His symptoms appear to be related to a degenerative spine.  He may have had a minor aggravation, which has ceased.  I believe he has returned to his pre‑accident state and his ongoing symptoms are directly related to his pre-existing lumbar degenerative spondylosis.”

36.In terms of Mr Hamilton’s fitness for work Dr Watson opined that he was unlikely to be able to undertake heavy manual types of occupations because of his constitutional condition.  He thought however, he could undertake light duties in a semi-sedentary type of occupation.  He recommended avoidance of lifting and bending.  In summary he said:

“I believe he could undertake a semi-sedentary type of occupation working full hours a week without any restrictions and without any travel restrictions.  He should avoid lifting occupations, if at all possible.”

37.The medical experts for both parties agree that Mr Hamilton suffers from quite widespread degenerative disc disease in his lumbar spine.  Equally, there is no doubt that as a result of the injuries he sustained during the course of his employment on 19 October 2007, he suffered an aggravation of the pre-existing degenerative changes in his lumbar spine.  A good deal of the proceedings before the Arbitrator turned on the question of whether or not Mr Hamilton continued to suffer from the aggravating effects of the injury or whether it caused a short term aggravation which had ceased. 

Surveillance Evidence

38.Brooksight Investigations, on the instructions of Allianz Australia Insurance Limited, undertook 20 hours of surveillance of Mr Hamilton at various times on 16, 17, 22 and 24 January 2008.  Whilst under surveillance Mr Hamilton was videoed undertaking various activities.  I have viewed the DVD copy of the original videotape, as did the Arbitrator.  I have also had regard to the surveillance investigation report submitted by Brooksight Investigations dated 31 January 2008, which is an annexure to Paddon’s Reply.

39.The surveillance investigation report noted that during observations of Mr Hamilton, he was seen to:

(a)drive a motor vehicle in a normal and competent manner;

(b)walk in a slow and sometimes unrestricted manner;

(c)appear to have full rotation of his neck and shoulders;

(d)raised both arms above his head while taking washing off the line;

(e)bend from the waist to the ground while retrieving objects from the ground, and

(f)bend from the waist while angle grinding and drilling.

40.In general, I agree that those observations are a fair summary of the activities undertaken by Mr Hamilton during the surveillance period.

ARBITRATOR’S REASONS

41.The Arbitrator found (at [31] of his Reasons) that Mr Hamilton’s symptoms did not pre-date the injury of 19 October 2007, and that the aggravating effect of that incident upon the underlying degenerative disease process, as diagnosed by Dr Ashwell, was continuing. 

42.The Arbitrator preferred the evidence of Dr Ashwell to that of Dr Watson, principally on the basis that Mr Hamilton’s degenerative condition had been asymptomatic prior to the injuries, which had continued to cause him significant pain and discomfort ever since.  This was consistent with Mr Hamilton’s evidence.

43.The finding by the Arbitrator that Mr Hamilton continues to suffer a partial incapacity for employment, as a result of the injuries sustained on 19 October 2007, is not under challenge in this appeal and I make no further comment in relation to it.

44.The Arbitrator found that the medical reports of Drs Ashwell and Watson setting out Mr Hamilton’s capacity for work, post dated his termination of employment with Paddon. The WorkCover medical certificate dated 9 May 2008 certified him unfit for work from 9 May 2008 to 9 August 2008. There were no other medical certificates in evidence certifying Mr Hamilton fit for suitable duties. The Arbitrator concluded that Mr Hamilton failed to satisfy the requirements of section 38A and he was therefore entitled to be compensated for his partial incapacity under section 40 of the 1987 Act.

45.In relation to Mr Hamilton’s capacity for work, the Arbitrator found that he was not restricted to clerical duties.  He noted that Mr Hamilton had a capacity to drive.  He noted that Mr Hamilton’s incapacity for work involving bending and lifting, in particular frequent bending or lifting more than 10kg.  The Arbitrator relied on the video evidence, which demonstrated Mr Hamilton had skills that could be applied in work as a handyman or driver.

46.The Arbitrator found that Mr Hamilton had a long work history, nearly all of which had involved work of a physical nature, for which he was now incapacitated.  He noted that he had reached retirement age and “with a physical incapacity that would affect any prospect of employment” (see Reasons at [44]).

47.The Arbitrator found at [45] of his Reasons:

“Whilst it is likely that he could work nearly full time or at least he pre‑injury hours in employment as a truck or tractor driver (32 hours) it is unlikely he could find such work regularly or full time if he is restricted from heavy manual activity which such jobs usually require.

The practical reality is that the applicant is unlikely to be able to find and retain full time employment as a tractor or truck driver and his age and experience also mean it is unlikely he would obtain sedentary or clerical duties.”

DISCUSSION AND FINDINGS

Is Mr Hamilton entitled to benefits under section 38 of the 1987 Act?

48.The principal ground of appeal concerns Mr Hamilton’s entitlements, if any, to benefits under section 38 of the 1987 Act.

49.Section 38 is in the following terms:

“38 Partially incapacitated workers not suitably employed-special initial payments while seeking employment

(1)   Entitlement.  If:

(a) a worker is partially incapacitated for work as a result of an injury, and

(b) the worker is not suitably employed during any period of that partial incapacity for work,

the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.

(2)Maximum period of entitlement The maximum total period for which the   worker may be so compensated is 52 weeks.

(3)Rate of compensation When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:

(a) 80% of the worker’s current weekly wage rate (that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity),

(b) the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks).

(4)Worker to seek suitable employment Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).”

50.Compensation is not payable to a worker under section 38 unless during the relevant period the worker is seeking suitable employment in accordance with the provisions of section 38A.

51.Section 38A is in these terms:

“(1)Application This section provides for the determination of whether  a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).

(2)General requirements The worker is not to be regarded as seeking suitable employment unless:

(a)  the worker is ready, willing and able to accept an offer of suitable employment from the employer, and

(b)  the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and

(c)   the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and

(d)  the worker is taking reasonable steps to obtain suitable employment from some other person.

Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects…”

52.Mr Hamilton submits that he was terminated by Paddon on 11 January 2008 at a time when he had made an application for “suitable duties” and accordingly Paddon was liable to pay:

(a) pursuant to section 38(1) at the rate of $560.00 (agreed rate of earnings) from 11 January 2008 until 10 July 2008, and

(b) pursuant to section 38(3) at an amount of $448.00 (being 80% of $560.00) for a further 26 weeks, or until the 17 [sic] 19 October 2008, whichever occurs first.

53.Mr Hamilton submits that he attempted to return to work (page 18 of the Application to Resolve a Dispute) on light duties in early December 2007.  The duties he was required to undertake included tractor driving and vine cutting.  He said that he was able to do the tractor work without incident but found cutting the vines required him to bend and that this action severely aggravated his back injury.  As a consequence, he was unable to complete his duties and did not last longer than a few hours.  Mr Hamilton says:

“Since that time I have not been able to return to work again, as my employer could not provide me with any suitable duties.  My employment was terminated approximately early January 2008.”

54.Mr Hamilton further submits that he must have supplied medical certificates to the insurer during the period 11 January 2008 to 19 April 2008 as he was paid benefits during this period “and that the insurer accepted a partial incapacity during this period”.  The difficulty with this submission is that the medical certificates, if any, submitted during the period referred to are not in evidence.  The Arbitrator was not in a position to know, and I am not in a position to know on review, what evidence Mr Hamilton submitted to the insurer during this period.  There is only one medical certificate attached to the ‘Application to Resolve a Dispute’ that being from Dr Snedden dated 9 May 2008.  That certificate certified Mr Hamilton unfit for duties (i.e totally incapacitated) from 9 May 2008 to 9 August 2008.  It is difficult to know what, if any, inference can be drawn from that certificate in terms of Dr Snedden’s certificates for the earlier period between January and April 2008, but at the very least it does not support Mr Hamilton’s submission.

55.Mr Hamilton also submits that based on the 9 May 2008 certificate, the Arbitrator inconsistently made a finding of total incapacity for the period subsequent to 11 January 2008. I reject that submission. The Arbitrator did not make a finding of total incapacity. Indeed such a finding would be inconsistent with his award under section 40 of the 1987 Act.

56.The Arbitrator’s reference in his Reasons at [39] to the WorkCover certificate of 9 May 2008 was merely to demonstrate that the requirements of section 38 could not have been made out as at least during part of the period, which Mr Hamilton seeks benefits under section 38. The medical certificate supplied by him did not certify him as partially incapacitated as is required before benefits are payable under section 38.

57.Mr Hamilton submits that his entitlements under section 38 were not placed in issue by the Respondent’s section 74 notice. Relevantly the section 74 notice provided the following reasons for suspending benefits:

(a)     Dr Watson’s opinion that the effects of the injury on 19 October 2007 had ceased by 11 February 2008 and that any symptoms thereafter were the result of a constitutional degenerative spondylosis;

(b)     a rejection of claim benefits for section 60 expenses, and

(c)     surveillance video indicated an ability to walk and carry out other movements and activities to a greater extent then demonstrated to Dr Watson.

58.Mr Hamilton attempted on one occasion to return to light duty work in December 2007 (see [53] above).  I note in particular his evidence that since the attempt in December 2007 “I have not been able to return to work again, as my employer could not provide me with any suitable duties”.

59.In terms of the general requirements under section 38A(2), the evidence establishes that at least as of December 2007, Mr Hamilton was prepared to accept an offer of light duty employment. Regrettably that attempt was unsuccessful. This appeal is concerned with a period from 19 April 2008 and 19 October 2008. There is no evidence from Mr Hamilton regarding his willingness to undertake suitable employment during that period. There is no evidence that the requirements of section 38A(2)(b) have been complied with, noting Mr Hamilton has failed to produce a medical certificate with respect to his partial incapacity for work, being a medical certificate which is in, or to the effect of, a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker. The only medical certificate in evidence during the relevant period is the certificate from Dr Snedden of 9 May 2008 which certifies Mr Hamilton totally unfit from 9 May 2008 to 9 August 2008. The certificate by Dr Snedden certifies total incapacity when the requirements of section 38A mandate that a certificate certifying partial incapacity must be supplied.

60.There was no evidence before the Arbitrator or on appeal concerning Mr Hamilton’s attempts, between 19 April 2008 and 19 October 2008, to return to work on light duties with Paddon.

61.There is no evidence that during the relevant period Paddon was provided with information sufficient to assist in determining what was suitable employment for the worker (section 38A(2)(c)). 

62.In the circumstances of this case, section 38A(2)(d) does not apply as there is no suggestion that Mr Hamilton was notified, in accordance with the requirements of that section, to seek employment from any other person.

63.The Arbitrator’s finding that the certificate of 9 May 2008 was “not a certification of suitable duties” was a correct finding on the evidence and I agree with it. Mr Hamilton submits that the evidence contained in his statement is the only evidence on the section 38A(2) issues and that his evidence should be accepted as satisfying the requirements of section 38A(2). That submission is not accurate as it overlooks the medical certificate of Dr David Snedden of 9 May 2008 certifying total incapacity. Even so, for the reasons that I have indicated, Mr Hamilton’s evidence does not go far enough to establish all of the elements necessary to satisfy the requirements of section 38A. Therefore, Mr Hamilton has not established an entitlement to compensation under section 38.

64.Mr Hamilton submits “the respondent section 74 notice does not place the appellant worker’s claim under section 38 in issue”, other than to identify the matters recorded in the section 74 notice, that submission was not developed any further. Paddon has not made any submission in relation to the section 74 notice.

65.Whilst I accept that there is no reference in the section 74 notice disputing an entitlement under section 38 that does not necessarily mean that Mr Hamilton is entitled to succeed on the section 38 issue without otherwise satisfying the requirements of the section. For the reasons that I have indicated I have formed the view that Mr Hamilton has not proved his claim for benefits under section 38 therefore the omission of any reference to that section in the section 74 notice is of no consequence. It follows that this ground of appeal fails.

Is Mr Hamilton entitled to benefits under section 40 of the 1987 Act, and if so, in what sum?

66.In the alternative to Mr Hamilton’s submissions concerning his entitlement to benefits under section 38, he submits that the Arbitrator erred in his assessment of the quantum of his entitlements under section 40.

67.Mr Hamilton submits “there was no evidence upon which the Arbitrator could have made a finding that the appellant worker had a capacity to earn $437.00 per week”.  Mr Hamilton submits the evidence of Dr Ashwell that Mr Hamilton would be “fit for up to 25 hours per week of light duties mainly in an office” is incapable of supporting findings that:

(a)     Mr Hamilton could secure employment for 25 hours per week in an office, or

(b)     that he has the necessary education, training and experience to work as an office/administrative/clerical worker. 

68.Mr Hamilton submits that he has not worked in an administrative role since 1964 when he ceased work as a bank teller.  He submits that since then he has been employed either as a farmer, a forklift driver, truck driver or farm labourer.  Mr Hamilton submits that describing his duties at Lindsay Brothers Transport as a “management position” elevated his capacity for clerical duties beyond “that which the rest of the evidence makes out”.  It was submitted that his duties as a depot manager involved forklift driving and truck driving, but not administrative or clerical duties.

69.Mr Hamilton submits that the reality is that he is unlikely to find tractor or truck driving work and he is not suited by reason of his education, experience or training, to carry out sedentary or clerical work. 

70.In those circumstances, Mr Hamilton submits, there being no avenue of employment for which Mr Hamilton has any capacity, that the appropriate assessment under section 40(2)(b) of his capacity to earn post accident should be nil. He submits that after subtracting nil from the agreed comparable earnings, but for injury, of $560.00, he should be entitled to an award under section 40 of up to $560.00 per week, subject to the relevant statutory cap ($374.90 - $381.40).

71.Paddon submits that the evidence to support the Arbitrator’s finding of a capacity to work for up to 25 hours per week in clerical duties is as follows:

(a)     Dr Ashwell’s report where he opined that Mr Hamilton could perform lighter work of up to 25 hours per week, mainly in an office.  He opined that Mr Hamilton should avoid lifting weights of more than 10kg and he should avoid repetitive bending (see [20] and [39] of the Reasons);

(b)     Dr Watson’s report stated that Mr Hamilton could undertake light duties in a semi-sedentary type occupation.  He also recommended avoiding bending and lifting.  Indeed, he assessed that Mr Hamilton could undertake semi-sedentary work, working full hours per week without any restrictions or travel restrictions (see [23] of the Reasons);

(c)     the surveillance video disclosed an ability to perform certain tasks (see [26], [27] and [39] of the Reasons), and

(d)     Mr Hamilton’s statement indicating he could drive (see [32] of his statement).

72.Paddon submits that Mr Hamilton’s submission that his capacity to earn is nil is to effectively assert that he is totally incapacitated for employment (Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 341, Ball v Hunt (1912) AC 496). Paddon submit Mr Hamilton’s claim had not previously been advanced on the basis of a total incapacity for work. Mr Hamilton’s primary submission was that he should be entitled to benefits under section 38, which is of course inconsistent with Mr Hamilton being totally incapacitated.

73.I agree with Paddon’s submission that to find a nil capacity to earn is to effectively assert that Mr Hamilton is totally incapacitated. I also accept that to so find would be inconsistent with Mr Hamilton’s primary submission that he is partially incapacitated and entitled to benefits under Section 38A. The only evidence to support a finding of total incapacity is the medical certificate of Mr Hamilton’s general practitioner Doctor Sneddon of 9 May 2008. There is no report of Dr Sneddon in evidence to explain his certification, which is in stark contrast to the specialist expert evidence relied on by both parties. I infer from the Arbitrator’s findings that he placed little or no weight on Dr Sneddon’s certificate and in my view he was correct in so doing.

74.The principles in determining whether incapacity is to be regarded as total or partial is discussed in Ric Developments trading as Lane Cove Poolmart v Muir [2008] NSWCA 155 Campbell JA (Basten JA and Rein J) agreeing noted at [32]:

“32. The Deputy President identified the proper question to be asked, in deciding whether there is an incapacity, by citing the following from CP Mills, Workers Compensation (New South Wales), 2nd ed (1979) Butterworths at 285:

‘The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity is less than it was before the injury (Williams v Metropolitan Coal Co Ltd [1948] HCA 8; (1948) 76 CLR 431 per Starke J), and it is not limited to the effect on his capacity for his former work (per Dixon J). In Ball v Hunt [1912] AC 496, Lord Loreburn had said that there is incapacity when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity when such a defect makes his labour saleable for less than it would otherwise fetch: see Commissioner for Railways v Agalianos [1955] HCA 27; (1955) 92 CLR 390 per Dixon CJ.’”

75.There was general agreement between Drs Ashwell and Watson that Mr Hamilton had some residual capacity for work, although they varied in their assessment of the precise restrictions on his physical capacity and the number of hours he could be expected to work.

76.Mr Hamilton selective quotation of Dr Ashwell’s opinion, in his submissions on appeal does not accurately reflect Dr Ashwell’s opinion regarding Mr Hamilton’s residual capacity. The more complete extract of Dr Ashwell’s opinion is as follows:

“PROGNOSIS AND FITNESS FOR WORK

He went off work on the date of the injury on 19 October 2007. He did try light duties for one day but has not been able to do his full pre-injury work.  He is presently not fit for his pre-injury work duties.  He would not be fit for work as a labourer but could cope with lighter work of limited hours avoiding any lifting of weights more than 10kg.  He should also avoid repetitive bending.  I would expect him to be fit for work up to twenty–five hours per week of light duties mainly in an office.”

77.Dr Ashwell did not only certify Mr Hamilton fit for light office work, as his submissions imply, but certified him fit to undertake light physical work (for which Mr Hamilton is suited by reason of his education and experience) of limited hours, avoiding any lifting of weights more than 10kg and repetitive bending.

78.The Arbitrator was required to make a finding of Mr Hamilton’s ability to earn in suitable employment, pursuant to section 40(2)(b) of the 1987 Act. The determination of that amount is subject to the matters referred to in section 40(3) and section 43A. The calculation is the second step of the five steps discussed in Mitchell v Central West Health Service (1979) 14 NSWCCR 527 (‘Mitchell’).

79.The Arbitrator made a number of findings of fact:

1)      that Mr Hamilton had a residual capacity to undertake “some employment” up to 25 hours per week as discussed by Dr Ashwell;

2)      Mr Hamilton’s capacity for work was not limited to clerical duties;

3)      he had a capacity to drive;

4)      his limitations were in bending and lifting, particularly frequent bending and lifting more than 10 kg;

5)      it was unlikely that Mr Hamilton could find employment as a truck or tractor driver because he was restricted from heavy manual activity which such jobs usually require;

6)      the practical reality was that Mr Hamilton was unlikely to be able to find and retain fulltime employment as a tractor or truck driver, and

7)      at Mr Hamilton’s age and with his work experience, he was unlikely to obtain sedentary or clerical work.

80.The Arbitrator noted, correctly in my view, that no evidence had been filed by either party to assist him in assessing what forms of employment Mr Hamilton might be able to perform and at what rate of pay.  He found that he should apply Dr Ashwell’s assessment of an ability to work up to 25 hours per week.  He further found that in order to quantify Mr Hamilton’s ability to earn he applied the wage rate he was earning at the time of injury, that is, $17.50 per hour.  He therefore assessed Mr Hamilton’s capacity to earn at $437.00 per week (25 hours per week, multiplied by $17.50 per hour).

81.The weekly amount that Mr Hamilton had been earning at the time of the injury was agreed at $560.00 per week.

82.The Arbitrator then deducted Mr Hamilton’s ability to earn at $437.00 per week from his probable earnings of $560.00 per week, which amounted to the sum of $123.00 per week (step 3 of the Mitchell analysis).

83.The Arbitrator considered whether there were any discretionary matters to be taken into account in accordance section 40(1) (whether the amount so calculated was proper in the circumstances of the case), the fourth step of the Mitchell analysis. He concluded, in the exercise of his discretion, there were no relevant factors to justify any further reduction in the sum of $123.00 per week

84.The Arbitrator has correctly identified the principles to be applied to the assessment of Mr Hamilton’s entitlements under section 40. The findings of fact he made were available from the evidence and I agree with them.

85.I reject Mr Hamilton’s submission there is no avenue of employment open to him, for which he is now suited. The Arbitrator found that with his background and experience it would be unlikely he would obtain sedentary or clerical work (see [46] of the Reasons).  I agree with that finding, however that leaves open a range of other employment opportunities for which he is suited.

86.The Arbitrator noted the surveillance video demonstrated Mr Hamilton had skills that could be applied as a handyman or driver (see Reasons at [42]). 

87.Mr Hamilton’s statement indicates that during his attempt to return to work in December 2007 he had no difficulty driving a tractor (see Reasons at [50]).

88.Mr Hamilton led no evidence as to any attempts he had made to find work during the period in dispute.  He led no evidence as to the type of work he would regard himself capable of performing or the availability of such work in the area where he lives.

89.The Arbitrator clearly had in mind the factors in section 43A when he assessed the section 40 entitlements. He noted on one view of the evidence Mr Hamilton would be capable of performing full time driving work, but made an allowance for the difficulty Mr Hamilton would have in securing such work (see Reasons at [43] and [45]).

90.Doing the best he could on the available evidence, the was guided be Dr Ashwell’s evidence in assessing that Mr Hamilton could probably work for 25 hours per week as a truck or tractor driver (see Reasons at [45]). That finding was certainly open to him and I agree with it.

91.The Arbitrator applied an hourly rate of $17.50 to quantify Mr Hamilton’s capacity to earn. Again, neither party introduced any evidence to measure the hourly rate of pay for either drivers or tractor drivers, or any other employment for which Mr Hamilton was suited.  The rate was selected because it was the rate Mr Hamilton was being paid at the time of his injury.  As a member of a specialist tribunal the Arbitrator was entitled to have regard to his general knowledge and experience of the value of work in the labour market, (see J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625, Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385, Goktas v Goodyear Australia Pty Limited [2007] NSWWCCPD 1 and Forests NSW v Hancock No.2 [2007] NSWWCCPD 191). On review I agree with the Arbitrator’s assessment of the rate of pay for truck and tractor drivers at $17.50 per hour, it being a modest hourly rate for an unskilled labourer.

92.Having regard to these findings no error has been demonstrated in the Arbitrator’s assessment of Mr Hamilton’s section 40 entitlement

DECISION

93.The Arbitrator’s determination of 12 August 2008 is confirmed.

COSTS

94.No order as to costs of the appeal.

Judge Keating

President

20 November 2008

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE