Hussaini v Integrated Workforce NSW Limited
[2006] NSWWCCPD 114
•8 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Hussaini v Integrated Workforce NSW Limited [2006] NSWWCCPD 114
APPELLANT: Mohammad Ali Hussaini
RESPONDENT: Integrated Workforce NSW Limited
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC19166-2003
DATE OF ARBITRATOR’S DECISION: 11 March 2005
DATE OF APPEAL DECISION: 8 June 2006
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; section 341 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers.
REPRESENTATION: Appellant: Carters, Solicitors
Respondent: Edwards Michael Moroney, Lawyers
ORDERS MADE ON APPEAL: 1. Paragraph 1 of the Arbitrator’s decision dated 11 March 2005 is revoked and the following order is made:
“1.Award in favour of the Applicant pursuant to section 40 of the Workers Compensation Act 1987 in the sum of $65.30 per week from 8 February 2003 to 9 March 2003 and from 19 May 2003 to date and continuing.”
2. Paragraphs 2, 3 and 4 of the Arbitrator’s decision dated 11 March 2005 are confirmed.
3. In addition to the order substituted and the orders confirmed the following order is to be included:
“5.Respondent to pay the Applicant’s costs of the Application as agreed or assessed.”
4. The Respondent is to pay the Appellant’s costs of this Appeal.
BACKGROUND TO THE APPEAL
On 30 March 2005 Mohammad Ali Hussaini (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the application’) in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 March 2005.
The Respondent to the Appeal is Integrated Workforce NSW Limited (‘the Respondent’).
The Appellant was employed by the Respondent as a General Labourer on 25 November 2002. The Appellant alleges that he suffered injury to his back and right leg on 3 January 2003 as a result of the “nature and conditions” of his employment.
The Appellant ceased work on 3 January 2003 by reason of alleged incapacity and sought treatment initially from General Practitioner Dr Eshragi and subsequently consulted General Practitioner Dr Khalil. The Appellant was referred for specialist management to Dr Manohar, a Specialist in Rehabilitation.
The Appellant made a claim for compensation benefits and received weekly payments up until 7 February 2003 at which time it appears that liability to make such payments was declined by the Respondent through its Insurer.
The Appellant filed an Application to Resolve a Dispute with the Commission on 3 December 2003 seeking orders with respect to his entitlement to weekly benefits, medical expenses and lump sums in respect of alleged whole person impairment. That Application came before the Arbitrator on 10 February 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 11 March 2005 records the Arbitrator’s determination as follows:
“1.Award in favour of the respondent in respect of the Applicant’s claim for weekly payments of compensation.
2.That the Respondent pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987 as follows (for injuries on and from 01.01.02), $8750 in respect of 7% whole person permanent impairment.
3.The Respondent is not liable for the payment of the Applicant’s claim under s67 of the Workers Compensation Act 1987.
4.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.”
The Arbitrator’s Reasons for the Determination (‘Reasons’) set out above were given on 11 March 2005.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in her determination of matters of fact and law in her application of section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
(ii)Whether the Arbitrator erred in the manner of exercise of her discretion to determine the quantum of compensation benefits pursuant to section 40(1) of the 1987 Act.
(iii)Whether the Arbitrator erred in not making a costs order in favour of the Appellant.
The matters enumerated above are addressed by the representatives of both the Appellant and Respondent in written submissions which are before the Commission.
ON THE PAPERS REVIEW
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.”
Both the Appellant and the Respondent submit that this matter may be decided solely on the basis of the written Application and the Notice of Opposition lodged.
It is to be noted that, whilst oral evidence was given at the hearing of the arbitration, there is no transcript of the proceedings available on the Commission file. It is also noted that an exhibit tendered on behalf of the Respondent at the hearing entitled “Candidate Activities Report” does not appear on the Commission file. Notwithstanding the absence of this material each of the parties is content to have the matter determined ‘on the papers’. The willingness of the parties to have the appeal determined in this way is a circumstance that overcomes any concern as to due exercise of the power of review which was the subject of cautionary observation by Bryson JA in Aluminium Louvres and CeilingPty Limited v Xue Qin Zeng [2006] NSWCA 34 (unreported).
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of sections 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator is summarised at paragraphs 15 and 16 of her Reasons. That summary includes reference to the “Candidate Activities Report from 2003 to 13 January 2004” which, as noted above, does not appear on the Commission file.
In addition to the documentary evidence, the Arbitrator, at the hearing, permitted oral evidence to be given by the Appellant (see paragraph 14 of the Arbitrator’s Reasons). That evidence was both in chief and in cross-examination. As noted above a transcript of that evidence is not available on the Commission file.
The Appellant’s written Statement which was before the Arbitrator dated 1 February 2005 included [at paragraphs 9(a) and (b)] a detailed description of his duties whilst employed by the Respondent. Those duties included transporting items within a warehouse with the use of a large flat-bed four wheeled metal trolley. Boxes manipulated by the Appellant weighed “between 30 to 60 kgs”. The work involved repeated bending and heavy lifting. Duties also included unloading of trucks as part of a team. This involved unloading large bags of clothing and shoes. The Appellant estimated the weight of the bags as being “in the region of 40 to 45 kilograms”.
The Appellant, in his Statement, said that he noticed aching and stiffness in his low back whilst working. He had been “fit and well” before commencing work with the Respondent. The pain and stiffness, the Appellant stated, “became worse as I continued working. I began to notice pain and numbness affecting my buttocks and my right thigh.” The Appellant went on to describe experiencing pain on 3 January 2003 which “became too painful to continue working”. These events took place at the premises of the Smith Family Warehouse at Villawood NSW. The Appellant ceased work after consulting a Nurse at the Warehouse First Aid Room.
The Appellant states that he reported the injury to the Respondent’s office at Parramatta at which time he was told to consult Dr Eshragi at the Mayne Health Centre Parramatta. That Practitioner arranged for a CT scan, prescribed tablets and issued WorkCover Medical Certificates. Those certificates [five in number] were annexed to the Respondent’s Reply filed herein. The first of such certificates is dated 15 January 2003 and certified that the Appellant was then fit for suitable duties up until 20 January 2003 such duties were described as being for “8 hours per day 5 days per week lifting up to 7 kilograms”. That certification continued until the issue of a medical certificate on 4 February 2003 by Dr Eshragi stating that the Appellant was fit for suitable duties until 5 February 2003 and “is fit for pre-injury duties from 6 February 2003”.
The Appellant [at paragraph 15 of his Statement] stated that he was “unhappy” with the certification as to fitness made by Dr Eshragi. The Appellant states “I did not believe my injury had recovered or that I could return to the sort of heavy work I had been doing before”. The Appellant states that he then consulted Dr Khalil, General Practitioner. That Practitioner arranged a further CT scan and referred the Appellant to Dr Manohar. Dr Khalil issued certificates as to fitness for suitable duties thereafter and copies of those certificates were before the Arbitrator.
The Appellant, in his Statement, narrates that he sought work within the restrictions placed upon him by Dr Khalil and that he obtained employment with Catalyst Recruitment Systems Limited where he was employed between 10 March 2003 and 18 May 2003. The position was temporary and duties involved sitting in a chair for 6 hour shifts sorting envelopes and other mail. The Appellant stated that the constant sitting caused a “flare up” of his back pain and that he had to “frequently stand up and move about to relieve it”. The Appellant stated that he did not believe he was capable of continuing permanently in this work.
The Appellant stated that after 18 May 2003 he continued his attempts, without success, to obtain work within the restrictions certified by Dr Khalil.
The Appellant stated that in late 2004 he trained for and obtained his “Security Licence” and that he had “been unable to get work within my restrictions as a Security Guard.” The Appellant remained unemployed up until the date of the hearing before the Arbitrator.
Medical certificates of Dr Khalil which were before the Arbitrator included one dated 6 December 2004 which certified the Appellant as being “fit for suitable duties to 4 March 2005”. Dr Khalil stated that the Appellant was capable of doing fulltime work lifting up to 7 kilograms, sitting up to 40 minutes, standing up to 40 minutes and was to avoid lifting and bending.
The Appellant relied upon the opinion of Dr WG Taylor, Specialist Surgeon, as expressed in his report of 1 July 2003. It was that Practitioner’s view that the Appellant had a “total whole body (sic) impairment according to the Guidelines of the American Medical Association 5th. Edition of 26%”.
The Appellant placed before the Arbitrator a “Wages Schedule” which included alleged “comparable earnings”, “actual earnings” and particulars of his earnings with Catalyst Recruitment Systems Limited as well as Award details relating to employment as a Security Guard. It is stated in the Wages Schedule with respect to the Security Guard particulars that “he does not know if he can cope with that employment fulltime because of his injuries.”
The Respondent in reply to the Application to Resolve a Dispute relied upon the opinion of Dr M S Garvan, Injury Management Consultant, as expressed in his report of 5 February 2003. Dr Garvan stated that “he is fit to resume suitable duties now, with a 20 kg lifting limit. After two weeks he can upgrade to PID without restriction.”
The Respondent also relied upon the opinion of Dr James Bodel, Orthopaedic Surgeon, as expressed in his reports of 24 September 2003. Dr Bodel was of the view that the Appellant had “suffered a minor disc injury at the L4/L5 level as a result of a lifting incident that occurred at work on 3 January 2003.” Dr Bodel went on to state:
“This gentleman requires an exercise program to strengthen the back and abdominal area. He is currently fit for a wide range of work tasks, although probably not fit for unrestricted labouring work. I would place a 15 kilogram lifting limit on him in order to minimise symptoms in the back.”
Dr Bodel expressed the view that the Appellant’s “final level of whole person impairment therefore is a 5% whole person impairment …”
The Respondent relied upon the medical certificates issued by Dr Eshragi including that dated 4 February 2003 which certified the Appellant fit for pre-injury duties from 6 February 2003.
The Respondent relied upon a Wages Schedule bearing date 17 February 2004 and put before the Arbitrator some wage particulars from a payroll report relating to the Appellant.
Before the Arbitrator was Medical Assessment Certificate of Permanent Impairment issued by Dr Michael D Ryan, Approved Medical Specialist, relating to an examination of the Appellant which took place on 13 May 2004 stating that the Appellant’s whole person impairment (“WPI”) was 7%.
The Appellant, in his submissions, challenges the Arbitrator’s determination with respect to the following two matters:
(i)the award in favour of the Respondent with respect to the Appellant’s claim for weekly payments brought pursuant to section 40 of the 1987 Act; and
(ii)the omission by the Arbitrator in that determination to make provision for a costs order in favour of the Appellant given the circumstance that the Appellant had secured an award in respect of a lump sum pursuant to section 66 of the 1987 Act as well as in respect of medical expenses [section 60 of the 1987 Act].
The challenges to the matters enumerated above are brought on the grounds of alleged error of fact, error of law and error in the manner of exercising discretion (section 40 of the 1987 Act).
The Respondent in its Notice of Opposition to Appeal against Decision of Arbitrator submits that, with respect to the “appeal on weekly benefits compensation” there has been no demonstrated error of fact or law nor any demonstrated error with respect to the manner in which the section 40(1) discretion was exercised.
With respect to the omission by the Arbitrator to make provision for costs the Respondent submits that the Appellant’s challenge is unfounded given that the parties have “not provided detailed submissions to the Arbitrator on the issue of costs”. It was earlier submitted by the Respondent that the Arbitrator’s silence on the issue of costs did not constitute error of law.
DISCUSSION AND FINDINGS
At paragraph 57 of her Reasons the Arbitrator states a “summary (of) the resolution of the issues in dispute …”. It is in this paragraph that the Arbitrator first addresses the primary issue earlier noted by her [in paragraph 7 of Reasons] as to the question of “injury”. The Arbitrator’s finding in respect of this matter is that such injury was received on 3 January 2003.
Paragraph 57 of Reasons proceeds to summarise the Arbitrator’s findings in respect of each of the heads of claim namely weekly benefits, medical expenses and non-economic loss. It is the Appellant’s submission, as noted above, that in determining the question of the Appellant’s entitlement or otherwise to weekly benefits the Arbitrator fell into error both as to fact and law when determining identified issues between the parties and further that the Arbitrator erred with respect to her exercise of discretion in determining weekly benefits entitlement during partial incapacity. The Respondent, in its submissions, seeks to support the Arbitrator’s reasoning process and her conclusions as to fact and law as well as the manner in which the Arbitrator’s discretion was exercised. The Appellant’s challenge to the omission by the Arbitrator to make a costs order will be addressed following a consideration of the matters raised as to the Arbitrator’s decision with respect to weekly payments.
It should be noted at the outset that the Arbitrator, at paragraph 37 of her Reasons, made the following finding:
“37. I find that the Applicant has been partially incapacitated from 3 January 2003 to the present and ongoing.”
When dealing with the subject of “weekly benefits claim” at paragraph 57 the Arbitrator noted the following:
“Weekly Benefits Claim:
·Mohammad Ali Hussaini was totally incapacitated for work as a result of his injuries from 3 January 2003 to 7 January 2003. He has already been paid compensation for this period and for all periods up to 7 February 2003.
·Mohammad Ali Hussaini was partially incapacitated for work as a result of his injuries from 7 January 2003 to 4 March 2003.
·Mohammad Ali Hussaini’s probable weekly earnings, but for injury, had he continued to be employed in the same or some comparable employment, are $592.80 per week.
·During Mohammad Ali Hussaini’s period of partial incapacity for work from 8 February 2003 the average weekly amount he was earning or would be able to earn in some suitable employment from time to time after the injury was $527.50.
·Mohammad Ali Hussaini’s entitlement to weekly benefits should be reduced by $63.50 because he did not comply with his obligations to seek suitable employment and he was certified fit to return to pre-injury duties from 5 March 2003.
·Mohammad Ali Hussaini is therefore entitled to weekly payments for the period of partial and/or total incapacity for work from 3 January 2003 to 7 February 2003.
·Mohammad Ali Hussaini has already been paid compensation of during [sic] this entire period.”
The abovementioned summary appears to state the Arbitrator’s conclusions with respect to incapacity as follows:
(i)The Appellant was totally incapacitated for work from 3 January 2003 to 7 January 2003.
(ii)The Appellant had been paid compensation in respect of all periods of incapacity up to 7 February 2003.
(iii)The Appellant was partially incapacitated for work from 7 January 2003 to 4 March 2003.
(iv)The Appellant’s probable weekly earnings but for injury [section 40(2)(a) of the 1987 Act] were $592.80 per week.
(v)The Appellant’s ability to earn during partial incapacity from 8 February 2003 [section 40(2)(b) of the 1987 Act] was $527.50 per week.
(vi)The Arbitrator’s summary proceeded to state that the Appellant’s entitlement to weekly benefits should be reduced by $63.50(sic) “because he did not comply with his obligations to seek suitable employment and he was certified fit to return to pre-injury duties from 5 March 2003.”
(vii)The Arbitrator concluded by noting that the Appellant was “entitled to weekly payments for the period of partial and/or total incapacity for work from 3 January 2003 to 7 February 2003” and that the Appellant “has already been paid compensation of [sic] during this entire period”.
The Arbitrator at paragraph 58 proceeded to enter an award in favour of the Respondent in respect of the Appellant’s claim for weekly payments of compensation.
It can be seen that there is an apparent contradiction between the finding made by the Arbitrator at paragraph 37 of her Reasons and the summary of findings with respect to periods of incapacity noted at paragraph 57. Leaving aside the specific matters as to error of fact and law raised on behalf of the Appellant and addressed by the Respondent, it is clear that the demonstrated contradiction necessitates review in accordance with section 352 of the 1998 Act and a determination as to whether the decision should be confirmed or revoked and a new decision made in its place or whether the matter is to be remitted to the Arbitrator for determination in accordance with any appropriate direction.
The Appellant’s submissions in respect of “errors of fact” essentially address the correctness of the Arbitrator’s reasoning process given suggested contradiction [paragraph 6(a) and (b)]. The balance of the submissions appear to address the question as to whether certain conclusions were in any way supported by the evidence.
As to “errors of law” and “errors of discretion” the totality of the Appellant’s submissions address the reasoning process adopted by the Arbitrator having regard to relevant principle as well as submissions going to the suggestion that the Arbitrator erred in taking irrelevant factors into consideration in the exercise of her discretion under section 40(1) of the 1987 Act.
It is proposed to examine the Arbitrator’s Reasons leading to her decision noted at paragraph 56 thereof where it was stated by the Arbitrator:
“In all these circumstances, I do not believe that the Applicant is entitled to weekly compensation and therefore I propose to exercise my discretion to reduce the amount to which the Applicant is entitled to NIL.”
The Arbitrator [at paragraph 39 of Reasons] correctly cites the decision of the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’) as authority with respect to the proper application of the provisions of section 40 of the 1987 Act. That decision enumerated five distinct steps to be taken by the decision maker when determining entitlement under that section.
Neither the Appellant nor the Respondent take issue with the Arbitrator’s conclusions as to the Appellant’s probable earnings but for injury [section 40(2)(a)] which is addressed by step (i) in Mitchell, nor as to the Arbitrator’s conclusion as to the Appellant’s “ability to earn” [section 40(2)(b) of the 1987 Act] being step (ii).
It should be noted that the Arbitrator, at paragraph 49(d) states:
“(d)The medical certificates disclose restriction on lifting for an initial period until 5 March 2003 when Dr Khalil certified the Applicant as fit for pre-injury duties.”
This conclusion is a misstatement of the evidence and I note that the only medical certificate before the Arbitrator stating that the Applicant was fit for pre-injury duties was issued by Dr Eshragi, to whom the Appellant had been referred by the Respondent, in his certificate dated 4 February 2003 which certificate comprises part of the medical material relied upon by the Respondent. The Appellant relied upon a number of certificates issued by Dr Khalil each of which certifies the Appellant as being fit for suitable duties.
The Arbitrator at paragraph 54 of her Reasons concluded that the sum of $65.30 represented the difference between the sums determined in steps (i) and (ii). I note that in paragraph 44 of her Reasons the Arbitrator had earlier determined the Appellant’s “earnings” in terms of section 40(2)(b) of the 1987 Act between 10 March 2003 and 18 May 2003 were $612.50 per week (whilst employed by Catalyst Recruitment Systems Limited).
At paragraph 55 of her Reasons the Arbitrator states the existence of the discretion pursuant to section 40(1) of the 1987 Act “to decide whether and to what extent any reduction calculated above bears such relation to the amount of that reduction as may appear proper in the circumstances of the case.”
Paragraph 56 of the Arbitrator’s Reasons enumerated five separate matters considered by her relevant to the exercise of the discretion. It was by reason of those matters that the Arbitrator concluded that the Appellant’s entitlement was nil.
Before a consideration as to whether the matters enumerated by the Arbitrator were properly relevant to the exercise of the discretion addressed by step (iv) it appears the determination that the Appellant’s entitlement pursuant to section 40 was “NIL” constitutes an error of law. The principles relevant to the present determination were addressed by the NSW Supreme Court, Court of Appeal in the matter of Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566 (‘Kesen’). The Court there was considering the provisions of the legislative predecessor of section 40 (namely section 11(1) of the Workers Compensation Act 1926). The Court in Kesen addressed the correctness of a zero award pursuant to section 11(1) made by the Workers Compensation Court to a worker who was partially incapacitated but, during a relevant period, was absent from Australia caring for an ill relative. The Court, in a joint judgment, stated (at page 568):
“What seems to us to be the clearest error of law appearing in the passage from his reasons set out above is his assumption that a weekly payment of nothing is a weekly payment. The subsection requires that if partial incapacity is found a weekly payment is to be made. It must not exceed the figure found by step (3) and it may be reduced below that figure to a figure which bears a proper relation to this step (3) figure. Zero bears no relation to the step (3) figure, or any real number.”
There is a point of difference between the Compensation Court’s findings in Kesen and the present matter. In Kesen the Court at first instance omitted the “step” requiring determination of a differential between probable earnings and ability to earn. That is not the case in the present matter. The Arbitrator has addressed the requirements of that step. That being said it is plain from the Court’s decision in Kesen that “if partial incapacity is to be found a weekly payment is to be made”.
It is proposed to address the matters referred to by the Arbitrator at paragraph 56 of her Reasons to determine whether such matters were properly relevant to the exercise of her discretion pursuant to section 40(1) of the 1987 Act.
The Arbitrator noted:
“The Medical Assessment Certificate provides a relatively low assessment (5% Whole Person Impairment plus 2% for interference with activities of daily living).”
I am of the view that the Arbitrator has erred in taking into account the contents of the aforementioned certificate when exercising the discretion bestowed by the subsection. Consideration of the nature of the incapacity, necessarily involving attention to the contents of the certificate as to whole person impairment, is not only a factor relevant to a determination as to the meaning of “suitable employment” for the purposes of section 40 [see section 43A of the 1987 Act] but it is a matter which falls squarely within the exercise required to be carried out at stage (ii) [determination of ability to earn in terms of section 40(2)(b) of the 1987 Act]. There can be no justification for taking such a factor into account in the discretionary phase as discussed by the NSW Court of Appeal in Mitchell at 534. Whilst the subject matter of the factors addressed in Mitchell were distinguishable from the present it is clear, as a matter of principle, that caution should be exercised to avoid “doubling up” considerations relevant to a determination of entitlement in cases of partial incapacity.
The Arbitrator further noted:
“The Applicant has been certified by his own Doctor as fit for suitable duties since 5 March 2003.”
Leaving aside the matters raised above as to the evidence contained in the relevant medical certificates it is clear that such certification is a question which needs to be addressed when step (ii) of the exercise is applied. The Arbitrator’s determination of the Appellant’s ability to earn required an evaluation of the Appellant’s earning capacity having regard to his incapacity [section 43A(a) of the 1987 Act] and a consideration of what in fact constituted “suitable work” in terms of section 40. Again it is my view that the Arbitrator has fallen into error in taking into account a factor relevant to her earlier determination as to ability to earn. As stated by the Court in Mitchell:
“… there can be no justification for taking them into account in the additional discretionary phase.”(at 535).
The Arbitrator noted the following further matter:
“The Applicant had been offered work with the Respondent on a number of occasions since being certified fit for full duties and had not responded to those offers.”
Given the Arbitrator’s finding at paragraph 37 of her Reasons that the Applicant had been partially incapacitated from 3 January 2003 “to the present and ongoing” there does not appear to be any logic in narrating, as a factor relevant to the exercise of discretion, evidence that the Appellant had been “certified fit for full duties”. The Arbitrator’s conclusion that the Appellant “had not responded to those offers” of work with the Respondent on a number of occasions leaves open, as a matter of fact, the question as to whether such offers were for full pre-injury duties or otherwise. Leaving aside the inconclusive nature of the finding as to offers of work and the logistic difficulty of incorporating such a consideration in circumstances where there is a finding of partial incapacity it is clear that the Arbitrator was addressing a perceived reluctance on the part of the Appellant to re-enter the workforce. Such a consideration, even if well founded upon the evidence, is not, in my view, relevant when exercising the discretion granted by the subsection and more particularly would not, as has been concluded here, disentitle the Appellant to compensation. [See Clark v The Commission for Railways (1970) WCR 91 at 91 and 92.]
The Arbitrator further noted:
“I also note that the Applicant was able to overcome the obstacles presented by his language skills, education and a move to a new country and did in fact obtain employment soon after his arrival into Australia. Unfortunately his injury changed his attitude to work and he has remained unemployed since May 2003 despite opportunities for work in the open labour market.”
Leaving aside the question as to whether there was evidence before the Arbitrator as to “opportunities for work in the open labour market” it is, in my view, an error on the part of the Arbitrator to seize upon these matters in the course of exercise of the discretion. As was stated by the Court in Mitchell [at 534]:
“[S]elf induced diminution of earning capacity lies squarely within the exercise required to be carried at what we have identified as the second stage. The matters to which Egan A-CCJ referred to go directly to the ‘worker’s ability to earn in the general labour market reasonably accessible to the worker’ and are therefore required (by section 40(3)(a)) to be taken into account in the section 40(2)(b) exercise. In consequence there can be no justification for taking them into account in the additional discretionary phase.”
It has long been a principle relevant to a proper determination of entitlement to weekly payment for partial incapacity that compensation ought not to be reduced as an incentive to the worker to exercise his willpower which has been impaired owing to the injury. (See Gioiello v Marsfield Pottery Pty Limited (1973) WCR 131 at 137.) It is the Arbitrator’s view that the subject injury had “changed his attitude to work”. It would be improper to reduce entitlement merely as an incentive to the Appellant to exercise his willpower with respect to resumption of work.
The Arbitrator further noted:
“That the Applicant worked for the Respondent for a short period of time and had only been offered part-time employment up until the time of his injury.”
The fact that the Appellant’s employment with the Respondent had only been short term is not, in my view, of itself relevant to the exercise of discretion. If that fact was supplemented by evidence to support a conclusion that the Appellant, pre-injury, had rarely been engaged in gainful employment then such could properly be taken into account. That is not the case here. The uncontested evidence is that the Appellant, pre-injury, had worked as a Process Worker in a chicken factory for a period of 12 months during which period, for approximately 6 months, he also held a second job working as a Kitchen Hand. These facts are such as to render the matters considered by the Arbitrator under this head as being irrelevant to the exercise of discretion under the subsection.
The Arbitrator’s summary which appears at paragraph 57 has been referred to above. The fifth point noted in that paragraph is, it seems, a reference to the exercise of the discretion under the subsection. The reduction “by $63.50(sic) because he did not comply with his obligations to seek suitable employment and he was certified fit to return to pre-injury duties from 5 March 2003” indicates misapplication of relevant principle. There is no statutory “obligation” to seek suitable employment in the case of partial incapacity. Section 40(2A) makes provision with respect to the consequences of a worker “unreasonably” rejecting suitable employment. In the present case there was no finding of fact that work “offers” recorded in the “Candidate Activities Report” was “suitable employment” in terms of the 1987 Act.
As to the Respondent’s submission in opposition to this appeal I do not accept the assertion that the Appellant’s arguments “relate more to the form rather than to the substance of the decision” [paragraph 4].
As to paragraph 5 of the Respondent’s submissions I note that I have earlier referred to the absence of any finding as to the nature of the work which was offered to the Appellant. I have also earlier addressed the proper approach as to the exercise of discretion and reject the mattes raised in this paragraph.
As to paragraph 7 of the Respondent’s submissions I have earlier concluded that the evidence there referred to are not matters properly to be taken into account when exercising the discretion under the subsection.
Paragraph 8 of the Respondent’s submissions address the Arbitrator’s findings with respect to the Appellant’s post injury ability to earn. I am of the view that the Arbitrator’s conclusions with respect to the relevance of the Appellant’s earnings whilst employed by Catalyst Recruitment Systems Limited were open on the evidence before her and should not be disturbed.
Paragraphs 9 and 10 of the Respondent’s submissions reiterate matters raised earlier with which I have dealt. As to matters raised here with respect to “commitment to the obtaining of employment after the injury” I note that I have earlier dealt with these issues in the analysis of the Arbitrator’s approach to the application of the provisions of section 40 of the 1987 Act.
With respect to “Errors of Law” I have considered the Respondent’s submissions numbered 11 to 17 inclusive, the subjects of which have been addressed above when the Arbitrator’s reasoning process has been the subject of analysis. Nothing stated in those submissions dissuades me from the conclusions reached above.
The Respondent’s submissions with respect to “Errors of Discretion” have been considered, the thrust of which is that no error has been demonstrated. I have dealt with those matters raised by the Respondent in the analysis of the reasoning process of the Arbitrator in exercising the discretion and I am not dissuaded from those views expressed by any matter raised in these submissions.
The Arbitrator’s conclusions with respect to incapacity insofar as they are inconsistent on the face of her Reasons together with her determination that, in her discretion, the Appellant’s entitlement to weekly compensation pursuant to section 40 of the 1987 Act is nil constitute errors on her part which require either revocation and substitution with a new decision or alternatively that the matter be remitted for determination in accordance with the matters determined on this appeal. The NSW Court of Appeal in the matter of Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344 (unreported) has expressed the view that should an appeal be upheld it is preferable, if possible, that the Presidential Member finally determine the matter (per Santow JA at paras. 28 and 29).
Having regard to the circumstances of this case I am of the view that it is desirable, and in conformity with the legislature’s intent, that the errors identified in this appeal are corrected without the need to remit the matter for further consideration by the Arbitrator.
I confirm the Arbitrator’s finding [at paragraph 57] that the Appellant suffered injury within the meaning of the 1987 Act to his back arising out of or in the course of his employment with the Respondent on 3 January 2003.
I confirm the Arbitrator’s finding [at paragraph 37 of her Reasons] that the Applicant has been partially incapacitated from 3 January 2003 to the present.
I confirm the Arbitrator’s finding that the Appellant has been paid in respect of his entitlement to weekly benefits up to and including 7 February 2003.
I confirm the Arbitrator’s finding [at paragraph 54 of Reasons] that the arithmetic difference between the Appellant’s probable earnings but for injury and his ability to earn throughout the period of this claim in accordance with the provisions of the 1987 Act are $65.30 per week (excluding the period 10 March 2003 to18 May 2003 whilst the Appellant was employed by Catalyst Recruitment and Systems Limited).
Having regard to my conclusions as to errors on the part of the Arbitrator in exercising the discretion under section 40(1) of the 1987 Act it remains to be determined as to what amount, not exceeding the sum of $65.30 is a proper weekly payment of compensation in the circumstances of this case [step (iv)]. I have earlier dealt with the matters addressed by the Arbitrator and confirm my view that each factor taken into consideration in the exercise of the discretion was irrelevant to a determination of what constituted a “proper weekly payment”. I note that the Respondent in its submissions in opposition to this appeal does not raise any matters in addition to the factors addressed by the Arbitrator in her Reasons. I note in passing that there appears to be a “slip” at point 5 of paragraph 57 of the Arbitrator’s Reasons where the sum of “$63.50” appears. It is clear, given the relevant arithmetic, that that figure should have read “$65.30”.
In the exercise of my discretion I would determine that an appropriate weekly payment of compensation which is proper in the circumstances of this case is the sum of $65.30.
There remains for consideration in this appeal the Appellant’s submission that the Arbitrator erred in failing to make a costs order in his favour. In its submissions opposing this appeal the Respondent [in paragraph A subparagraphs 1 to 3] appears to acknowledge that the Appellant may be entitled to an order for costs with respect to the original Application heard before the Arbitrator.
Section 341 of the 1998 Act makes provision with respect to the Commission’s power to determine costs. Section 341(2) is as follows:
“(2)The Commission has full power to determine by whom to whom and to what extent costs are to be paid.”
Leave has been granted to the Appellant to proceed with this appeal and that leave encompasses all matters raised by the Appellant including the challenge in respect of the Arbitrator’s failure to make a costs order. The Commission’s power, being discretionary, leads to the conclusion that costs do not “follow the event”. A determination with respect to entitlement to costs in the present case needed to be made by the Arbitrator. The omission on the part of the Arbitrator to address the question of costs constitutes, in my view, an error.
The Arbitrator’s decision does not address the question of costs. It is my view that the Commission’s power to review an Arbitrator’s decision in terms of section 352 of the 1998 Act extends to review of such an omission given the Arbitrator’s failure to exercise a discretion granted by the 1998 Act. Section 352(8) of the 1998 Act provides:
“(8)In this section, decision includes any award, interim award, order, determination, ruling and direction.”
Whilst no order as to costs was made it is my view that the Arbitrator’s omission to make such order may be reviewed given the failure to exercise jurisdiction granted by the 1998 Act.
The Appellant at the hearing of the Application succeeded in respect of his claim for a lump sum and with respect to his claim for medical expenses. In the circumstances, and particularly bearing in mind the Respondent’s position with respect to costs as outlined in the submissions, I am of the view that the Arbitrator’s decision should be the subject of a new order, that being that the Respondent pay the Appellant’s costs of the original Application.
DECISION
Paragraph 1 of the Arbitrator’s decision dated 11 March 2005 is revoked and the following order is made:
“1.Award in favour of the Applicant pursuant to section 40 of the 1987 Act in the sum of $65.30 per week from 8 February 2003 to 9 March 2003 and from 19 May 2003to date and continuing.”
Paragraphs 2, 3 and 4 of the Arbitrator’s decision dated 11 March 2005 are confirmed.
In addition to the order substituted and the orders confirmed the following order is to be included:
“5.Respondent to pay the Applicant’s costs of the Application as agreed or assessed.”
COSTS
The Respondent is to pay the Appellant’s costs of this appeal.
Kevin O’Grady
Acting Deputy President
8 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
3
0