Hume v CSR Ltd - [2015] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hume v CSR Ltd [2015] NSWWCCPD 7
APPELLANT:	Thomas Hume
RESPONDENT:	CSR Ltd
INSURER:	Self-insured
FILE NUMBER:	A1 and A2-4722/13
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:	9 October 2014
DATE OF APPEAL DECISION:	3 February 2015
SUBJECT MATTER OF DECISION:	Failure to determine all issues in dispute; failure to consider submissions made on entitlement to weekly compensation; failure to consider the legislation; failure to consider if worker had a current work capacity; meaning of suitable employment; relevance of worker’s failure to disclose prior back injury when applying for post-injury employment; whether post-injury employment was “artificial” and therefore not suitable employment because of non-disclosure of prior back injury; relevance of unavailability of suitable employment on the open labour market; ss 32A, 36 and 37 of the Workers Compensation Act 1987, as amended by the Workers Compensation Legislation Amendment Act 2012; extension of time to appeal; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011; absence of provision for a cross-appeal
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Taylor & Scott Lawyers
Respondent:	Leigh Virtue & Associates
ORDERS MADE ON APPEAL:	1. Time to appeal in the appeal filed by CSR Ltd is extended until 11 November 2014. 2. Paragraphs 1 and 2 of the Certificate of Determination of 9 October 2014 are revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. 3. Each party is to pay his or its own costs of the appeals. 4. Costs of the second arbitration, and of the first arbitration, are to follow the outcome of the second arbitration.

INTRODUCTION

In this matter, both parties have appealed. The issues raised concern the worker’s entitlement to weekly compensation in the first and second entitlement periods in ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act), as amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), and the meaning of “suitable employment” in s 32A. (All references to the 1987 Act in this decision are to that Act, as amended by the 2012 amending Act.)
The employer’s challenge relates to the Arbitrator’s decision to award weekly compensation for a period on the basis that the worker had no current work capacity, but without giving any reasons, considering the legislation or the submissions made in opposition to such an award.
The worker’s challenge relates to the Arbitrator’s decision not to award continuing weekly compensation for the period after his post-injury employment was terminated. The essential issue is whether the relevant post-injury employment was “artificial”, and therefore not “suitable employment”, as defined, because the worker obtained the employment by not disclosing his previous back injury, it being accepted that, had he done so, he would not have obtained the relevant employment. There is also an issue as to whether the worker lost his post-injury employment because of his excessive time off because of his back injury or for some other reason.
For the reasons explained below, the employer’s appeal is successful but the worker’s appeal is not.

BACKGROUND

The appellant worker, Thomas Hume, worked as a glass production worker with the respondent employer, CSR Ltd (CSR). He injured his back on 17 September 2012 when attempting to move a heavy trolley. His general practitioner, Dr Syed Farabi, arranged for Mr Hume to have physiotherapy and certified him fit for light duties, which CSR provided.
When his symptoms did not improve, Mr Hume was referred to Dr Hsu, an adult and paediatric spine surgeon, who diagnosed Mr Hume to have disc damage at the L4/5 and L5/S1 levels of his back, with a small annular tear at L4/5. Mr Hume had an injection of steroids and saw an exercise physiologist, who provided some improvement in his symptoms.
CSR terminated Mr Hume’s employment on 15 November 2012.
An MRI scan on 7 December 2012 revealed a small posterior annular tear and a mild focal protrusion in the L4/5 disc and a linear hyperintensity in the right foraminal disc margin in the L5/S1 disc.
CSR issued a s 74 notice on 24 December 2012 in which it disputed liability for the claim on the grounds that Mr Hume had not sustained any injury caused by or arising out of his employment, any medical condition suffered by Mr Hume was not causally connected to any work injury, Mr Hume was not incapacitated for work, or, if he was, the incapacity had not resulted from his injury, and that any medical treatment required was not reasonably necessary as a result of injury. (Exactly what claim this notice was responding to is unclear.)
CSR relied on a report from Dr Edwards, surgeon, dated 19 December 2012, in which it was asserted that Mr Hume suffered only a musculoligamentous strain in the incident on 17 September 2012 and that he was fit for his normal duties.
In an Application to Resolve a Dispute (the Application) filed with the Commission on 26 March 2013, Mr Hume claimed weekly compensation from 16 November 2012 to date and continuing. In a Reply filed on 12 April 2013, CSR relied on the issues raised in the s 74 notice of 24 December 2012.
Meanwhile, after having unsuccessfully sought suitable employment as a mortgage broker, Mr Hume obtained full-time employment with Rex Australia Pty Ltd t/as K & K Glass (K & K Glass) on 2 October 2013, where he worked as a glass worker earning $722 per week. K & K Glass terminated Mr Hume’s employment on 15 May 2014 because of excessive absenteeism, about which he had been warned on several occasions. Mr Hume asserted that he had taken time off work because of the symptoms in his back, because of his back injury with CSR, and that, as a result, the work with K & K Glass was not “suitable employment”. The Arbitrator did not accept that explanation and did not accept that the work with K & K Glass was not suitable employment.
It was conceded at the arbitration that Mr Hume had no entitlement to weekly compensation in the period while he worked for K & K Glass, that is, from 2 October 2013 until 15 May 2014 (T50.11). Arguably, that concession was wrongly made. That is because Mr Hume’s entitlement to weekly compensation in the second entitlement period, while he was working for not less than 15 hours per week with K & K Glass, is determined under s 37(2) not s 37(3), as appears to have been assumed. However, no application has been made to withdraw that concession and, as it is not the subject of the appeal, I express no concluded view about it.
After a contested hearing, in which Mr Hume and the general manager of K & K Glass, Mr Dean McParland, gave oral evidence and were cross-examined, the Arbitrator delivered a reserved decision in which he:
(a)     rejected the evidence from Dr Edwards that Mr Hume had only suffered a musculoligamentous strain;
(b)     accepted the evidence from Dr Hsu and Dr Collins, orthopaedic surgeon qualified by Mr Hume’s solicitor, that in the incident on 17 September 2012, Mr Hume suffered disc damage affecting the L4/5 and L5/S1 discs;
(c)     accepted Mr Hume’s evidence as to the physical effects of his injury until CSR terminated his employment on 15 November 2012 (that evidence was that, by the time he was terminated, his back had been improving slowly but he noticed “twinges at [sic] the lower back intermittently especially when lifting some heavy objects in the course of employment”);
(d) accepted that Mr Hume was “still convalescent from his injuries when he was dismissed by [CSR] and [was] accordingly entitled to weekly compensation pursuant to section 36 of the 1987 Act” (from 16 November 2012 to 7 February 2013) ([46]);
(e) found Mr Hume to be entitled to weekly compensation at the rate of $855 per week from 16 November 2012 until 7 February 2013 under s 36 of the 1987 Act and at the rate of $720 from 8 February 2013 to 1 October 2013 under s 37 of the 1987 Act ([48]) (it is assumed that this award was under s 37(3) and thus calculated on the basis that Mr Hume had no current work capacity);
(f)      did not accept that Mr Hume was dismissed by K & K Glass because he had been taking time off as a result of his back injury, noting that other factors were involved in Mr Hume taking time off work with K & K Glass other than his back injury, namely, problems with his nephew’s drug taking;
(g) accepted Mr Hume’s entitlement under s 37(3) of the 1987 Act was $666.37, that is, 80 per cent of his average weekly earnings (with CSR) of $832.96;
(h) accepted that as Mr Hume’s earnings with K & K Glass ($722) exceeded his entitlement under s 37(3) ($666.37), Mr Hume had no entitlement to weekly compensation while working for K & K Glass between 2 October 2013 until 15 May 2014 (as noted at [13] above, this was arguably an error but, as it was based on a concession by Mr Hume’s counsel, it has not been challenged on appeal), and
(i)      found that Mr Hume had a “current ability to earn $722 per week in suitable employment” ([45]) and he therefore had no entitlement to “ongoing weekly payments of compensation” (from the time he stopped work with K & K Glass on 15 May 2014) ([45]).
The Commission issued a Certificate of Determination on 9 October 2014 in the following terms:
“The Commission determines:

1. The respondent is to pay the applicant weekly compensation at the rate of $855 a week from 16 November 2012 until 7 February 2013 pursuant to section 36 of the Workers Compensation Act 1987, and from 8 February 2013 to 1 October 2013 at the rate of $720 per week pursuant to section 37 of the Workers Compensation Act 1987.

2. The respondent is to pay the applicant’s costs as agreed or assessed, and I certify that the parties are entitled to an uplift of 30 per cent for complexity.”

In an appeal filed within time, Mr Hume has challenged the Arbitrator’s finding that he has no entitlement to weekly compensation beyond 15 May 2014, the date on which his employment with K & K Glass ceased. In an appeal filed out of time, CSR has sought to extend time to challenge the Arbitrator’s finding that Mr Hume was entitled to weekly compensation in the period from 16 November 2012 to 1 October 2013. It is appropriate that both appeals be heard together.
In submissions in reply to CSR’s appeal, Mr Hume has sought leave to raise an additional ground of appeal, namely, the Arbitrator erred in finding that K & K Glass did not dismiss Mr Hume because of absenteeism as a result of his back injury.

PRELIMINARY MATTERS

Monetary threshold

There is no dispute that both appeals satisfy the monetary thresholds in s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Time

CSR’s appeal was filed on 11 November 2014, five days outside the 28 day period allowed for the filing of a s 352 appeal.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules), which provides:
“(12) 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.”
In support of the application to extend time to appeal, CSR’s solicitor, Mr Macken, submitted that CSR “initially provided instructions not to proceed with an Appeal for purely commercial reasons only”. However, as Mr Hume has “elected to proceed with an Appeal [CSR’s] instructions have changed as the matter will need to go to a Presidential member for the Appeal in any event. In this regard the Appeal is in the nature of a ‘Cross-Appeal’”.
Opposing CSR’s application to extend time to appeal, Mr Hume’s counsel, Mr Andrew Campbell, submitted that there is no evidence of the circumstances of how CSR came to the (initial) decision (not to appeal), but even if “commerciality” governed the decision that cannot mean that the decision can be revoked just because Mr Hume has decided to appeal. He disputed the assertion that CSR’s appeal is essentially a cross-appeal, noting that Mr Hume does not seek to disturb the Arbitrator’s findings with respect to the award from 16 November 2012 to 1 October 2013.
McHugh J considered the question of extending time to appeal in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 480 (Gallo). His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a)     the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)     upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
I intend to apply these principles in the present matter.
Though the Commission has no procedure for the filing of a cross-appeal, the description of CSR’s appeal as a cross-appeal is not entirely inappropriate, but does not determine the extension of time application before me. A cross-appeal in the Supreme Court may be filed by a respondent to an appeal who seeks the discharge or variation of the decision below (or part of the decision below) (Pt 51.17 of the Uniform Civil Procedure Rules 2005). That is, on one view, what CSR is seeking to do. In the Supreme Court, a cross-appeal may be filed within 14 days after the filing of the notice of appeal, or such other time as the Court may fix. However, not having provision for a cross-appeal, the Commission does not have such a time limit and CSR’s appeal is out of time. Whether time should be extended is determined under the Commission’s Rules and the principles in Gallo.
For the following reasons, I am satisfied that exceptional circumstances exist such that it would cause a substantial injustice if time to appeal were not extended:
(a)     the history of the proceedings demonstrates that there are several contentious issues involved in the Arbitrator’s assessment of the claim;
(b)     CSR’s conduct in deciding (initially) to not appeal and acting promptly to then appeal once it became aware of Mr Hume’s position was not unreasonable;
(c)     CSR’s appeal was filed only five days out of time, and five days after Mr Hume filed his appeal;
(d)     the nature of the litigation raises issues about the amendments introduced by the 2012 amending Act that require determination;
(e)     the issues raised by CSR’s appeal involve a clear and fundamental error by the Arbitrator, and
(f)      given that the matter is already before a Presidential member, there is no prejudice to Mr Hume in extending time for CSR to appeal.
Time for CSR to appeal is extended until 11 November 2014.

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 submissions filed in support of Mr Hume’s appeal, Mr Campbell submitted that the appeal could be determined on the papers. CSR’s Notice of Opposition marked “No” to the question of whether the appeal could be determined on the papers, but made no submission as to why that was so.
In CSR’s appeal, its solicitor, Mr Paul Macken, submitted that the appeal should not be determined on the papers in circumstances “where there is both an Appeal and a Cross-Appeal and having regard to the fact that the Appeal deals with the application of provisions of the recently amended legislation”. Contrary to his original submissions, Mr Campbell joined with this submission in the Notice of Opposition to CSR’s appeal.
The issues raised in both appeals are clear and straight forward. So too is the resolution of those issues. Each side has had every opportunity to provide detailed written submissions and has done so. I do not believe I would be assisted by further, oral, submissions.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed “on the papers” without holding a formal hearing and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE

In respect of CSR’s appeal, which relates to an award of weekly compensation from 16 November 2012 to 1 October 2013, the issues in dispute are whether the Arbitrator erred in:
(a) failing to give reasons;
(b) failing to consider s 37(3) and the “suitable employment” factors in s 32A, and
(c) failing to address Mr Hume’s ability to earn in the period concerned.
In respect of Mr Hume’s appeal, which relates to his entitlement to weekly compensation from 15 May 2014 to date and continuing, the issues in dispute are said to be whether the Arbitrator erred in:
(a) failing to properly undertake the task required by s 32A of the 1987 Act;
(b)     finding that Mr Hume had no entitlement to ongoing weekly payments of compensation beyond 15 May 2014, the date on which his employment with K & K Glass ceased;
(c)     finding that Mr Hume has a current ability to earn of $722 per week;
(d)     failing to find that the effects of the injury led Mr Hume to take so much time off work with K & K Glass that it led to his dismissal, and
(e)     finding that there was no adequate or convincing explanation why Mr Hume did not reveal to K & K Glass the problems associated with his back injury when confronted about his absenteeism with that company.
Because it raises an issue that is first in time, namely, Mr Hume’s entitlement to compensation from 16 November 2012 to 1 October 2013, it is convenient to deal with CSR’s appeal first. Before doing that, it is appropriate to set out the relevant legislation.

THE LEGISLATION

Section 32A defines “current work capacity” to mean:
“a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.”
The same section defines “no current work capacity” to mean:
“a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The term “suitable employment” is defined, also in s 32A, to mean:
“employment in work for which the worker is currently suited:
(a) having regard to:

(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

(ii)the worker’s age, education, skills and work experience, and

(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

(v)such other matters as the WorkCover Guidelines may specify, and

(b) regardless of:

(i)whether the work or the employment is available, and

(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and

(iii)the nature of the worker’s pre-injury employment, and

(iv)the worker’s place of residence.”

Sections 35, 36 and 37 provide:
“35   Factors to determine rate of weekly payments
(1) For the purposes of the provisions of this Subdivision used to determine the rate of weekly payments payable to an injured worker in respect of a week:
AWE means the worker’s pre-injury average weekly earnings.
D (or a deductible amount) means the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week (whether or not received by the worker during the relevant period), being a non-pecuniary benefit provided by the employer for the benefit of the worker or a member of the family of the worker.
E means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(a) the amount the worker is able to earn in suitable employment,
(b) the workers current weekly earnings.
MAX means the maximum weekly compensation amount.
(2) If the determination of an amount for the purpose of determining the rate of weekly payments payable to an injured worker results in an amount that is less than zero, the amount is to be treated as zero.
36   Weekly payments in first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of:
(a) (AWE × 95%) − D, or
(b) MAX − D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the rate of:
(a) (AWE × 95%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
37   Weekly payments in second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 95%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.”

CSR’S APPEAL

Submissions

Counsel for CSR, Mr David Saul, submitted that though the Arbitrator accepted that Mr Hume was “still convalescent from his injuries when he was dismissed by [CSR]” ([46]), he failed to give any reasons as to why he found Mr Hume was entitled to the weekly compensation he awarded.
Mr Saul contended that the award for the period from 16 November 2012 to 1 October 2013 must be on the basis that the Arbitrator found Mr Hume had no current work capacity. He submitted that there was no evidentiary basis for such a finding, noting that, by his own admission, Mr Hume had a current work capacity in that period.
Further, the Arbitrator failed to consider s 37(3) and the “suitable employment” factors in s 32A for the period concerned. Mr Saul contended that, between 16 November 2012 and 1 October 2013, Mr Hume would have been fit to perform either the work he eventually secured with K & K Glass, had it been available, or a wide variety of work with a lifting restriction of 20 kgs, “regardless of whether the work or employment is available” (s 32A(b)(ii)).
Mr Campbell did not deal with the issues raised in the CSR appeal in any meaningful way. He submitted that Mr Hume’s employment with K & K Glass was “artificial” and would not be seen to be suitable in a proper analysis of Mr Hume’s ongoing entitlements to weekly payments. Relying on Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar), Mr Campbell argued that the determination of what is “suitable employment” is a practical exercise, conducted with regard to the factors in the definition of “suitable employment” in s 32A.
Mr Campbell said that Mr Hume’s return to work with K & K Glass was obtained by deception, but that work was unsuitable in any event. Mr Hume’s evidence was that when he was looking for employment, before he started with K & K Glass, no employer would hire him because of the history of his back injury and his lifting restrictions. Therefore, “practically speaking”, there was no employment available to Mr Hume “on the open labour market” and the Arbitrator was correct to award compensation as he did for the period from 16 November 2012 to 1 October 2013.

Discussion and findings

Mr Saul’s submissions are correct.
The Arbitrator’s only reasons dealing with the period from 16 November 2012 to 1 October 2013 were at [46]–[48]. He said:
“46.I do accept that [Mr Hume] was still convalescent from his injuries when he was dismissed by the respondent and is accordingly entitled to weekly compensation pursuant to section 36 of the 1987 Act.
47.At the arbitration hearing [CSR] agreed that there was no challenge to the applicant’s Further Amended Wages Schedule of 19 September 2014 in respect of the period from 16 November 2012 until 1 October 2013 when he commenced employment with K & K Glass.
48.[Mr Hume] is accordingly entitled to weekly compensation at the rate of $855 a week from 16 November 2012 until 7 February 2013, and from 8 February 2013 to 1 October 2013 at the rate of $720 per week.”
The quantum of these awards could only have been arrived at by assuming that, in the period concerned, Mr Hume had no current work capacity.
The period from 16 November 2012 to 1 October 2013 covers two “entitlement periods” under the new legislation. The first is “an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker” (s 32A). The quantum of weekly compensation payable in this period is determined under s 36(1) or s 36(2), depending on whether the worker has a current work capacity or no current work capacity.
The second is “an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker” (s 32A). The quantum of weekly compensation payable in this period is determined under s 37(1), s 37(2) or s 37(3), depending on whether the worker has a current work capacity or no current work capacity and, if the worker has a current work capacity, whether the worker has returned to work for less than or greater than 15 hours per week.
Assuming that injury is not in issue, or has been determined in favour of the worker, and that the effect of the injury is continuing, as has been found to be the fact in the present matter, the calculation of a weekly payment of compensation during the first and second entitlement periods starts by determining whether the worker has a “current work capacity” or “no current work capacity”. Having regard to the definitions of those expressions in s 32A, that question is determined by whether or not the worker is able to return to work in his or her pre-injury employment or in “suitable employment”, as defined.
The Arbitrator did not consider, with respect to the period from 16 November 2012 to 1 October 2013, whether Mr Hume had a “current work capacity” or “no current work capacity”. Instead, he appears to have assumed, without explanation or reference to the evidence or submissions, that Mr Hume had no current work capacity in the whole of the period from 16 November 2012 to 1 October 2013. That was a fundamental error.
The fact that CSR did not challenge Mr Hume’s wage schedule, which seems to be the basis upon which the Arbitrator proceeded as he did, did not relieve the Arbitrator of his obligation to determine the issues in dispute in accordance with the legislation. Mr Saul submitted at length that, from 16 November 2012 to 1 October 2013, Mr Hume had a current work capacity. The Arbitrator did not consider those submissions, or the issues they raised, but merely awarded compensation on the apparent assumption that, in the relevant period, Mr Hume was entitled to an award for the amounts in the wage schedule.
Those amounts were prepared on the assumption that, in the period concerned, Mr Hume had no current work capacity. That was the very issue the Arbitrator had to determine. In any event, the figures in the wage schedule do not accord with the apparently agreed figure for Mr Hume’s average weekly earnings of $832.96, which the Arbitrator used (at [44]) as the figure in his calculations for the claim from 15 May 2014. (The wage schedule asserted that Mr Hume’s average weekly earnings were $900 and based its calculations on that figure.)
It follows that CSR’s appeal must succeed and that this part of the claim must be re-determined. Mr Campbell’s submissions have not addressed the issues raised in CSR’s appeal, namely the Arbitrator’s failure to give reasons in respect of the (implicit) finding that Mr Hume had no current work capacity between 16 November 2012 and 1 October 2013. Instead, he has attempted to justify the Arbitrator’s conclusion on the grounds that “practically speaking” there was no employment available to Mr Hume “on the open labour market”.
Mr Campbell’s submissions have effectively invited a re-hearing on this issue. However, in view of the credit issues involved, it is not appropriate that I re-determine the issues the Arbitrator failed to consider and the matter will be remitted to a different Arbitrator for that purpose. To avoid confusion at the re-determination, I make the following observation about Mr Campbell’s submissions.
The general approach urged by Mr Campbell is not open under the new regime for the assessment of a worker’s entitlement to weekly compensation. As explained in Dewar, the legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is “available” or is of a type or nature that is “generally available in the employment market”.
Having regard to the fact that Mr Hume was working in suitable employment with CSR until he was retrenched on 15 November 2012, his evidence that he was actively seeking suitable employment (mortgage broking) between that date and 1 October 2013 and that he would have accepted such work had it been offered to him, the limited medical evidence dealing with the issue of Mr Hume’s work capacity, and the modest restriction placed on Mr Hume in that period (no lifting over 20 kg), it is difficult to see that he had “no current work capacity” in the period concerned.
This is not to say that a work capacity is established merely by the fact that a worker applies for a particular job. As explained in Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 at [33] (Figueira), the assessment of whether a worker is “suited” for “suitable employment” depends on the matters listed in s 32A(a). In particular, it depends on the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker under s 44B. However, unlike Figueira, there is no medical evidence in the present case that, between 16 November 2012 and 1 October 2013, Mr Hume had no current work capacity.
Mr Campbell’s submission that the work with K & K Glass was “artificial” and would not be seen as suitable employment is discussed below (at [77]–[79]). His submission that “practically speaking” there was no employment “available” to Mr Hume between 16 November 2012 and 1 October 2013 “on the open labour market” has ignored the legislation and demonstrates a fundamentally flawed approach to the provisions introduced by the 2012 amending Act.
First, Mr Hume had suitable employment with CSR, which he was capable of performing, and did perform, until he was retrenched on 15 November 2012. Second, he obtained similar, though slightly lighter, employment with K & K Glass in October 2013 and there is no evidence that his work capacity changed significantly between leaving CSR and starting with K & K Glass. Last, Mr Campbell’s submissions have ignored the clear words of s 32A, which make it clear that suitable employment means employment in work for which the worker is currently suited “regardless” of whether “the work or the employment is available”.

MR HUME’S APPEAL

Submissions

Mr Campbell submitted that the Arbitrator appeared to accept that Mr Hume suffered damage to his discs at the L4/5 and L5/S1 levels and that he rejected the evidence from Dr Edwards. Based on his work with K & K Glass, which paid $722 per week, the Arbitrator found that Mr Hume was not entitled to weekly compensation beyond the date when he started with that firm, that is, beyond 1 October 2013. (In respect of the period when Mr Hume was working for K & K Glass, this “finding” was based on a concession by Mr Campbell that Mr Hume had no entitlement in that period.)
Mr Campbell argued that the Arbitrator’s findings ignored how Mr Hume obtained employment with K & K Glass, namely, by concealing his prior back injury. Had he revealed his prior injury, the accepted evidence was that K & K Glass would not have employed him.
Relying on Dewar, Mr Campbell contended that Mr Hume’s employment with K & K Glass “can only be seen as ‘artificial’”. That is because he has an ongoing back injury and would not have been employed by K & K Glass if they had known of his condition. Nor could he expect to be employed in a similar role with any other employer. That is because “[a] job that requires an injured worker to deceive prospective employers in order to secure the job cannot be seen to be ‘suitable employment’”.
Mr Campbell contended that the Arbitrator erred in failing to find that the effects of Mr Hume’s injury led him to take so much time off work with K & K Glass that it led to his dismissal. Mr Campbell referred to Mr Hume’s evidence in his statement dated 18 July 2014 and his oral evidence at the arbitration. Mr Hume said that, while working at K & K Glass, he had “niggling pain and pins and needles going down the left leg especially after heavy lifting and frequent bending” and that he needed “odd days off when he had really bad days in terms of back pain”. In his oral evidence, Mr Hume said that he was having “difficulty doing those duties” (T13.5) with K & K Glass and that was why he had so many days off and was sacked.
Mr Campbell submitted that the only reliable evidence that CSR called as to why Mr Hume was dismissed by K & K Glass was that he had had time off because of a troublesome nephew. However, this was only on one occasion. Mr Campbell also referred to an absence of evidence from Mr Waring, the factory manager, a man who worked closely with Mr Hume at K & K Glass.
Mr Campbell submitted that the Arbitrator erred in saying (at [42]) that there was no adequate or convincing explanation why Mr Hume did not reveal the problems which he alleged were associated with his back injury when confronted about his absences at K & K Glass. He drew attention to Mr Hume’s oral evidence that he did not tell Mr Waring or Mr McParland about his back injury when he was confronted about taking days off work because he felt his injury had nothing to do with them and he did not want to reveal something that he had not revealed before he got the job.
Mr Campbell argued that if it was accepted that Mr Hume was having difficulties performing his work with K & K Glass because of his back, then “not only was the employment with K & K Glass artificial … but [it] was not suitable employment because on a proper assessment he was unable to perform the job adequately due to his injuries”. It can be inferred that if he had revealed to K & K Glass the nature of his back injury and the problems it was causing at work, he would have been sacked, noting Mr McParland’s evidence that had he known of Mr Hume’s back injury he would not have been offered the job.
Therefore, any entitlement to weekly payments should have ignored the earnings with K & K Glass and Mr Hume’s entitlements should have been assessed having regard to the nature of his injuries, his age, education, skills and work experience etc. As Mr Hume’s employment with K & K Glass has not changed his ability to earn in suitable employment, there should be a continuation of an award of weekly payments in the sum of $720 per week from 16 May 2014 to date and continuing. That is, the payments awarded under s 37 for the period from 8 February 2013 to 1 October 2013 should continue from 16 May 2014.

Discussion and findings

I do not accept Mr Campbell’s submissions.
In the circumstances of this case, how Mr Hume came to work at K & K Glass is largely irrelevant to the exercise the Arbitrator had to undertake. The issue was whether Mr Hume had any entitlement to weekly compensation after he was dismissed by K & K Glass. As that period fell within the second entitlement period, Mr Hume’s entitlement had to be determined under s 37.
The first question was whether, on and from 15 May 2014, Mr Hume had a current work capacity. Clearly, he did. Until his dismissal, he had been working full-time for over seven months in work that was, on his evidence, “pretty much” (T6.15) identical with the sort of work he had done with CSR, but without the drilling and milling. Had he not been dismissed, Mr Hume’s evidence was that he “hope[d] to have been able to still be doing” (T21.21) that work. The only reasonable conclusion from this evidence is that the work with K & K Glass was work that he was capable of continuing, if it were available to him. That work therefore provided a prima facie measure of Mr Hume’s work capacity.
Mr Campbell has referred to no medical or other evidence that, as at 15 May 2014, or immediately after that date, Mr Hume’s work capacity was less than he demonstrated with K & K Glass. The medical certificate from Dr Farabi dated 2 June 2014, which was not a WorkCover certificate, merely stated that Mr Hume was “able to performed [sic] 30 hours per week with out [sic] sustained periods of heavy lifting”. It did not address the terms of the legislation and was of limited assistance in determining Mr Hume’s current work capacity.
Thus, the only reasonable conclusion is that Mr Hume had a current work capacity when he stopped work on 15 May 2014. In the circumstances of this case, it was open to the Arbitrator to measure that capacity by reference to the work Mr Hume did with K & K Glass, regardless of whether that work continued to be “available”. Since he was not working, his entitlement to weekly compensation from 15 May 2014 was determined under s 37(3).
The weekly payment of compensation to which Mr Hume was entitled under s 37(3) was determined by applying the following formula: (AWE x 80%) – (E + D). Mr Hume’s average weekly earnings with CSR were, according to the Arbitrator (at [44]), agreed at $832.96 (which I note was inconsistent with the wages schedule filed by Mr Hume). Eighty per cent of that amount is $666.37. The amount for “E” is defined in s 35(1) as the amount to be taken into account as Mr Hume’s earnings after the injury calculated as whichever of the following is the greater:
(a) the amount the worker is able to earn in suitable employment,
(b) the worker’s current weekly earnings.
(It is agreed that “D” is irrelevant in the present case.)
Thus, if Mr Hume’s employment with K & K Glass was “suitable employment”, as defined, as the Arbitrator found, he had no entitlement to weekly compensation beyond 15 May 2014 because the amount he is able to earn in suitable employment ($722) is greater than 80 per cent of his average weekly earnings ($666.37).

Mr Hume’s real challenge is that the Arbitrator erred in finding that the employment with K & K Glass was “suitable employment”. Mr Campbell’s submissions on this issue have ignored the definition of suitable employment in s 32A and substantially ignored the evidence. They have not established error by the Arbitrator.
Mr Campbell’s submission that the work with K & K Glass was “artificial” is untenable. It has no support in Dewar, or in the evidence. The job with K & K Glass was undoubtedly “a real job in employment for which [Mr Hume was] suited” (Dewar at [59]), having regard to his age, education, skills and work experience. Nothing in Dewar supports a contrary conclusion. It was a job that Mr Hume did for over seven months and one he would have continued had he not been dismissed.
Just because Mr Hume did not reveal his previous back injury when he applied for work with K & K Glass does not mean that the job with that company was “artificial”. The issue is whether, having regard to the definition of suitable employment in s 32A, the employment with K & K Glass was employment in work for which Mr Hume was suited. Whether, if he had disclosed his previous back injury, that job would not have been offered to him, is not the test. As previously stated, suitable employment is employment in work for which the worker is currently suited “regardless” of “whether the work or employment is available”.
The submission that a job that requires an injured worker to deceive prospective employers to secure the job cannot be seen to be “suitable employment” ignores the definition of that term in s 32A and is rejected. Provided it is a real job in employment for which the worker is suited, it does not matter if the suitable employment is not “available” to the worker.
Mr Campbell’s submission that the Arbitrator erred in not finding that Mr Hume was dismissed because of time off because of his back and, therefore, erred in finding that the work with K & K Glass was suitable employment, has ignored the Arbitrator’s reasons. The Arbitrator said he had reservations concerning Mr Hume’s claim on why he was dismissed because:
(a)     Dr Farabi, Mr Hume’s general practitioner, had not seen Mr Hume for his back pain between 10 December 2013 and 2 May 2014 ([34]);
(b)     therefore, the certificates Mr Hume presented to K & K Glass on 10 December 2013 and 29 January 2014 were not in respect of his back injury (the certificates merely identified “a medical condition” as the reason for the need for time off) ([34]);
(c)     accordingly, Mr Hume had only made very limited complaints of back pain to Dr Farabi during the period of his employment with K & K Glass, and had not disclosed to his employer, even when threatened with dismissal because of his absences, what he alleged to be the underlying reason for the time taken off work ([35]);
(d)     there was no mention in Mr Hume’s statement of 3 May 2014, given two weeks before the termination of his employment with K & K Glass, that he had to take considerable time off work due to his back pain, a total of 21 days during seven months ([37]);
(e)     Mr Hume’s punctuality was an issue with CSR prior to the injury on 17 September 2012 ([38]);
(f)      Mr Hume’s duties with K & K Glass were lighter than those with CSR, due to a requirement that at least two people had to lift material weighing in excess of 20 kg, the Arbitrator having accepted Mr Hume’s evidence (though it has been disputed) that he did not work on the vertical machine with K & K Glass ([39]);
(g)     the preponderance of medical evidence disclosed that Mr Hume suffered a “low-grade injury to his lumbar spine” ([40]), and
(h)     other factors were involved in Mr Hume taking time off work with K & K Glass, namely, the problems with his nephew’s drug taking and his mother’s illness ([41]).
It was against this background that the Arbitrator said that Mr Hume provided “no adequate or convincing explanation why he did not reveal the problems which he alleges were associated with his back injury when confronted about his absences at K & K Glass” ([42]) and that, accordingly, the evidence fell “short” ([43]) of persuading him that the effects of Mr Hume’s injury led to his taking so much time off work with K & K Glass that it led to his dismissal.
When the Arbitrator’s conclusion is viewed in its proper context, that is, in the context of his reasons overall, it is seen that he did not rely solely, or even mainly, on the nephew’s drug taking as the reason for not accepting Mr Hume’s evidence as to why he took so much time off work with K & K Glass. The Arbitrator’s conclusion was open to him and involved no error.
Nothing in Mr Hume’s statement of 18 July 2014, or his oral evidence, establishes error by the Arbitrator on this point. The evidence that Mr Hume had “niggling pain” was perfectly consistent with the Arbitrator’s finding that Mr Hume had suffered only a “low-grade injury to his lumbar spine” ([40]). It was also consistent with Mr Hume’s statement of 3 May 2014, which the Arbitrator referred to at [36], where he said that “[f]rom time to time” he still noticed “niggling pain in the back” when he did “some heavy lifting at work”, which he tried to ignore because he could not afford to lose the job.
Mr Hume’s evidence that he had “odd days off when he had really bad days in terms of back pain” and that he was “having difficulty” with the duties with K & K Glass was not supported by the evidence from Dr Farabi, or any other evidence, and was not evidence that the Arbitrator was obliged to accept. (In making this observation, I am not saying that corroboration is essential before a worker can succeed (see Chanaa v Zarour [2011] NSWCA 199 at [86] and Woolworths Ltd v Warfe [2013] VSCA 22 at [151], both applied in Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 from [75]). It is merely a matter an Arbitrator is entitled to consider.) The Arbitrator correctly noted (at [37]) that Mr Hume made no mention, in his statement of 3 May 2014, of having to take considerable time off work because of his back. This was, however, only one reason for not accepting Mr Hume’s evidence as to why he was dismissed by K & K Glass.
I assume that the reference to the absence of evidence from Mr Waring was a Jones v Dunkel [1959] HCA 8; 101 CLR 298 submission. Mr Campbell submitted that to establish that Mr Hume was taking significant sick leave due to matters unrelated to his back, Mr Waring could have been called by CSR. This submission was misguided. It was not for CSR to prove why Mr Hume was taking excessive time off with K & K Glass. It was for Mr Hume to prove, as he asserted, that he was dismissed because he took excessive time off because of his back injury. He failed to do so. Mr Campbell’s submission, as with most of his submissions, was an attempt to conduct the appeal as a rehearing. That is not permissible in a s 352 appeal, which is restricted to the identification and correction of error.
In any event, as Mr Waring was not employed by CSR, I do not accept that he was a person in CSR’s “camp” (Payne v Parker [1976] 1 NSWLR 191 per Glass JA at 201–202) and therefore a person CSR would be expected to call. Further, Mr Campbell has not identified what inference should be drawn, favourable to Mr Hume, because of the absence of evidence from Mr Waring. Mr Hume gave no evidence that he had, for example, complained to Mr Waring about his back symptoms causing him difficulties at K & K Glass or causing him to take time off work. His evidence was the opposite. He said he did not tell Mr Waring about his back injury. If, because of his back, Mr Hume was having “difficulty” with his work with K & K Glass, as he claimed, it was for him to call evidence to establish that fact.
Mr Hume’s evidence that he did not tell Mr Waring or Mr McParland about his previous back injury because he felt that his injury had nothing to do with them and he did not want to reveal something that he had not revealed before he got the job, is of limited, if any, relevance to whether the Arbitrator erred in some material respect. The Arbitrator did not say that Mr Hume offered no explanation why he did not reveal his previous back injury to K & K Glass. He said that Mr Hume provided “no adequate or convincing explanation”. That finding was open and disclosed no error.
Even if Mr Hume’s explanation for not telling Mr Waring or Mr McParland about his back injury was considered “adequate”, and the Arbitrator erred in not reaching that conclusion, that makes no difference to the result. The issue was whether the work with K & K Glass was suitable employment. Given the length of time Mr Hume performed the work, his evidence that he would have hoped to continue that work had he not been dismissed, and the lack of any medical or other evidence about any difficulty he had with the work, it was open to the Arbitrator to find that the work was suitable employment. In the absence of any evidence that, as a result of the injury with CSR, Mr Hume’s condition deteriorated after leaving K & K Glass, it was also open to the Arbitrator to find that, at the date of the arbitration, the work with K & K Glass was suitable employment.
The submission that the employment with K & K Glass was not “suitable employment” is interconnected with the submission that, because of his back injury, Mr Hume had to take extensive time off work, which led to the termination of his employment. As the Arbitrator was not persuaded that the effects of the back injury led to Mr Hume taking so much time off work with K & K Glass that it resulted in his dismissal ([43]), he did not accept that Mr Hume’s dismissal was “substantially or predominantly” ([45]) caused by the effects of his injury with CSR. Though it would have been more appropriate to say merely that the dismissal had not resulted from the back injury, the Arbitrator’s findings and conclusions were open on the evidence.
It follows that it was also open to the Arbitrator to find that Mr Hume had a “current ability to earn $722 per week in suitable employment” ([45]), that is, in employment with K & K Glass and, as that figure exceeded 80 per cent of his average weekly earnings with CSR ($666.37), there was no entitlement to ongoing weekly payments of compensation. This analysis was consistent with the evidence and disclosed no error.
It follows that I do not accept the submission that any entitlement to weekly payments from 15 May 2014 should have ignored the earnings with K & K Glass. The Arbitrator was entitled to consider Mr Hume’s earnings with K & K Glass, along with the other evidence in the case. He did so. Significantly, having heard and seen Mr Hume give evidence, the Arbitrator did not accept his explanation for his excessive time off with K & K Glass and therefore did not accept that that employment was not suitable employment. Those conclusions were open on the evidence.
Mr Campbell’s approach invites an assessment of Mr Hume’s ability to earn “on the open labour market”, having regard to the availability (or, more relevantly, unavailability) of work to claimants, such as Mr Hume, who have suffered work injuries. As explained earlier in this decision, that is the wrong approach under the provisions introduced by the 2012 amending Act.

CONCLUSION

For the reasons stated, CSR’s appeal is successful and the claim for weekly compensation from 16 November 2012 to 1 October 2013 must be re-determined, before a different Arbitrator, in accordance with the reasons in this decision. Mr Hume’s appeal is unsuccessful and the Arbitrator’s finding that Mr Hume has no entitlement to ongoing weekly compensation ([45]) is confirmed.

DECISION

Time to appeal in the appeal filed by CSR Ltd is extended until 11 November 2014.
Paragraphs 1 and 2 of the Certificate of Determination of 9 October 2014 are revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.

COSTS

Each party is to pay his or its own costs of the appeals.
Costs of the second arbitration, and of the first arbitration, are to follow the outcome of the second arbitration.

Bill Roche
Deputy President

3 February 2015

I, JACQUELINE HAGGER, 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