Jakmax Pty Ltd v Taylor
[2017] NSWWCCPD 24
•18 May 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Jakmax Pty Ltd v Taylor [2017] NSWWCCPD 24 | |
| APPELLANT: | Jakmax Pty Ltd | |
| FIRST RESPONDENT: | Shane Taylor | |
| SECOND RESPONDENT: | Workers Compensation Nominal Insurer | |
| INSURER: | Uninsured | |
| FILE NUMBER: | A1-1608/16 | |
| ARBITRATOR: | Ms J Bamber | |
| DATE OF ARBITRATOR’S DECISION: | 29 November 2016 | |
| DATE OF APPEAL DECISION: | 18 May 2017 | |
| SUBJECT MATTER OF DECISION: | Employment connected with the state of NSW; s 9AA of the Workers Compensation Act1987; application of the “usually based” test; challenge to factual findings concerning injury and incapacity | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Goldbergs Lawyers |
| First Respondent: | Slater + Gordon Lawyers | |
| Second Respondent: | Sparke Helmore Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 29 November 2016 is confirmed. | |
INTRODUCTION
The appellant challenges the Arbitrator’s findings on three grounds. Firstly, that the worker sustained an injury in the course of his employment. Secondly, that the worker’s employment was connected with the state of New South Wales. Thirdly, that the worker has had no current work capacity since 23 April 2015.
In particular, this appeal concerns the application of s 9AA of the Workers Compensation Act 1987 (the 1987 Act) and the “usually based” test to determine whether the worker’s employment is connected with the state of New South Wales.
The worker was a sales representative for a company based in Victoria. After accepting the role, the worker re-located from his home in Victoria to Casino in New South Wales where he resided. The worker received stock at his home in Casino from the employer, for the purpose of his employment. The worker also received stock in other location or locations. He travelled an area from northern New South Wales to southern Queensland in undertaking the duties of his role.
For the reasons discussed below, the Arbitrator was correct to conclude that the worker usually resided in New South Wales.
BACKGROUND
From 31 March 2014 until 12 December 2014, Shane Taylor, the first respondent, was employed as a sales representative with Jakmax Pty Ltd (Jakmax), the appellant. Mr Taylor was required to “travel, service and sell/deliver stock” across northern New South Wales and southern Queensland. He was provided with a work van, iPad and mobile phone.
On 12 December 2014, Mr Taylor was dismissed from his employment. However, on that same day he was informed by Jakmax that arrangements had been made for his work van and any stock remaining in his possession to be collected from his rented accommodation in Casino. On 13 December 2014, in the course of loading the work van with the remaining stock, Mr Taylor allegedly sustained an injury to his lower back. The mechanism of injury is the subject of dispute.
At the time of the alleged injury, Jakmax was uninsured in New South Wales for liability under the relevant workers compensation legislation.
Mr Taylor lodged claims for compensation in respect of his injury in the state of Victoria, Queensland, and New South Wales.
On 19 January 2015, QBE Workers Compensation (VIC) Ltd issued a notice denying liability for Mr Taylor’s claim. It determined that Mr Taylor had no entitlement to compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) because his employment was not connected with the state of Victoria.
On 23 January 2015, WorkCover Qld issued a notice denying liability for Mr Taylor’s claim. It determined that Mr Taylor had no entitlement to compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) on the basis that he was not considered a worker in the state of Queensland.
On 4 February 2015, WorkCover Authority of New South Wales (WorkCover) issued a notice to Mr Taylor advising that liability for the injury was accepted on a provisional basis and payments of weekly compensation and medical expenses would commence.
On 17 April 2015, WorkCover issued a notice to Mr Taylor pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability. WorkCover disputed that the injury arose out of or in the course of Mr Taylor’s employment on 13 December 2014 or that it was due to the nature and conditions of his employment, “driving on a ‘tired’ seat and loading and unloading heavy goods into his vehicle”. Amongst other things, it further disputed that the employment was a main contributing factor to contracting a disease or aggravation, acceleration, exacerbation or deterioration of any lumbar spine disease.
There is then a gap in the chronology until December 2016. In the intervening period the parties had been in dispute regarding Mr Taylor’s dismissal and there were other matters occurring in Mr Taylor’s personal affairs that are not currently relevant. On 22 February 2016 icare (formerly WorkCover) issued a notice pursuant to s 267A of the 1998 Act, following a request for a review of its determination of 17 April 2015. icare confirmed it denied liability for the reasons stated in its decision of 17 April 2015.
On 31 March 2016, Mr Taylor lodged with the Commission an Application to Resolve a Dispute (the Application). He claimed weekly benefits in respect of an injury to his lower back, left forearm and left wrist on 13 December 2014, or, in the alternative, 31 March 2014 to 13 December 2014. He described the injury to have occurred when “[l]oading van with boxes and other heavy product; or in the alternative, lifting, carrying, loading and unloading heavy product over time.”
On 21 April 2016, Jakmax filed a reply to the Application relying upon the s 74 notices.
On 28 July 2016, the Arbitrator issued a direction amending the Application to add to the description of injury “and/or using and driving work vehicle on defective or uncomfortable seat.”
On 29 November 2016, the Arbitrator issued a Certificate of Determination in favour of Mr Taylor. She concluded that Mr Taylor suffered an injury to his back within the meaning of s 4(a) of the 1987 Act, as a result of the heavy lifting involved in loading stock in the work van on 13 December 2014.
On the available evidence the Arbitrator was unable to reach a conclusion regarding where Mr Taylor “usually works” (s 9AA(3)(a)), however, she found that Mr Taylor was “usually based” in the state of New South Wales pursuant to s 9AA(3)(b) of the 1987 Act. She also found that Mr Taylor had no current capacity for employment from 23 April 2015 and continuing.
The Certificate of Determination, dated 29 November 2016, is in the following terms:
“The Commission determines:
a) The applicant sustained injury to his lumbar spine arising out of his employment with the first respondent, Jakmax Pty Ltd, on 13 December 2014.
b) An award is entered in his favour against the Jakmax Pty Ltd in the sum of $922.40 per week from 23 April 2015 to date and continuing pursuant to section 37(1) of the Workers Compensation Act 1987.
c) The Commission declares that the employer, Jakmax Pty Ltd, was not insured as required by the Workers Compensation Act 1987 at the time of the applicant’s injury on 13 December 2014.
d) The Workers Compensation Nominal Insurer is to pay any compensation awarded against the employer, Jakmax Pty Ltd, from the Workers Compensation Insurance Fund established under section 154D of the Workers Compensation Act 1987.
e) The employer, Jakmax Pty Ltd, is to reimburse the Workers Compensation Nominal Insurer for amounts paid out of the Workers Compensation Insurance Fund in respect of the compensation awarded against the employer.
f) Liberty to apply.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Jakmax appeals the Arbitrator’s determination.
THRESHOLD MATTERS
There is no issue that the threshold requirements of s 352(3) of the 1998 Act as to the quantum of compensation in issue have been satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
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.”
Jakmax sought an oral hearing. It submitted that the appeal should not be decided on the papers as it involves complex issues of law in respect of s 9AA of the 1987 Act and issues with respect to Mr Taylor’s credit.
Mr Taylor submitted that the appeal is capable of being dealt with on the papers.
The second respondent did not file any submissions on appeal other than that it agrees with the submissions filed on behalf Jakmax. It did not wish to add any further submissions.
Notwithstanding Jakmax’s submissions, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that is the appropriate course in the circumstances.
LAY EVIDENCE
Mr Taylor
In evidence are several statements by Mr Taylor, dated 15 March 2015, 15 February 2016, and 12 September 2016.
Mr Taylor states that his job required him to travel, service and sell/deliver stock. He states that he was required to relocate to Casino. He was based in Casino and had a sales area including northern New South Wales and southern Queensland. He would typically cover a region of approximately 1200 kilometres to 2000 kilometre per week. He was supplied with a company van to use on his sales route. He further states that he worked “50% of the time in New South Wales and 50% of the time in Queensland”.
Mr Taylor received pallets of stock weighing 500 kilograms, at various locations. He unloaded the pallet and fit the stock inside the work van.
On 12 December 2014, Mr Taylor was contacted by phone by Mr Ben Brown, Jakmax’s national sales manager. He was advised that his employment was terminated. He was instructed to take the work van to Casino and place all the stock in the van.
On 13 December 2014, Mr Taylor commenced packing the van at 8.00 am with goods from his garage. He said that he took all the stock from the garage and laid it out on the driveway beside the van. He then commenced loading the van, re-loading several times in an attempt to put all the remaining goods in the van. He states that he finished at about 4.00 pm. He failed to fit seven fire fighting pumps into the van, which he returned to the garage. These weighed 20 kilograms each.
Mr Taylor states that between 5 pm and 5.30 pm on 13 December 2016, he left Casino in his own vehicle to return to Morwell in Victoria. He states that he arrived in Morwell at about midnight on 14 December 2014, “after staying at a hotel overnight somewhere.” He claims that it was sometime later in the day, on 14 December 2014, that he first noticed a dull ache in his lower back. He described this ache “like a tooth ache that didn’t throb”.
Mr Taylor states that he has constant pain in his lower back and cannot lift anything heavy. He cannot perform basic physical work for more than half an hour. He states that he gets numbness on his left buttock to the left knee, “which tingles pins and needles”. He further states that he “could not perform” his pre-injury duties.
Other
On 17 December 2014, Mr Brown sent Mr Taylor an email which briefly inquired about his travel back to Victoria, however, the substance of the email concerned a serious allegation regarding missing stock. He noted that $3,500 worth of stock was unaccounted for following the collection of the van and stock. Mr Taylor responded that same day, advising that the “trip down was excellent”. He denied being responsible for the missing stock. He then threatened an unlawful dismissal action against Jakmax.
In evidence is a statement by Mr Brown, dated 10 March 2015. In that statement Mr Brown states that Mr Taylor had “relocated to Casino (New South Wales), and from his home base he (like our other sales representatives) would use his assigned van to; travel, service and sell/deliver stock.”
In evidence is an email from Paul Duggan to John Morrow and John Turner dated 30 June 2016. In that email Mr Duggan answers a series of questions regarding Mr Taylor’s employment. In response to the question “[h]ow and where did the Applicant receive directions from the co[mpany]” it is recorded “ST received instructions and directions from Ben Brown the company Sales Manager.” In response to the questions from where did Mr Taylor collect the materials and/or equipment and where the materials and/or equipment was delivered, it is recorded “[s]maller Goods were sent to ST’s residence and larger goods were sent to a Retailer in Ballina who we are good friends with and ST would pick up when needed.”
In evidence is the surveillance footage for the period 19 July 2016 to 20 July 2016, together with the investigator’s surveillance report dated 21 July 2016. The footage reveals Mr Taylor walking freely and getting into his Landcruiser and checking the tyres.
In evidence is a supplementary statement by Doug Wilson, dated 27 July 2016. Mr Wilson is the sales representative who did Mr Taylor’s route before, and after, Mr Taylor’s employment with Jakmax. He states that “approximately 75% of my working week was spent in Queensland. The nature of the duties which I performed were the same whether I was in Queensland or NSW.”
MEDICAL EVIDENCE
On 22 October 2014, Mr Taylor attended on Dr Lisa Sun, general practitioner at the Crows Nest Medical Centre in Queensland. In her clinical notes the following is recorded, in respect of complaints of low back pain:
“2. Low back pain with L sciatica radiating down to L knee (numbness)
Doesn’t take regular pain relief, only Mersyndol when severe.
Getting worse due to long drives for work.Currently not adequately relieved by Mersyndol.”
On 11 November 2014, Mr Taylor again attended on Dr Sun. In her clinical notes she recorded that Mr Taylor was “passing through for work (truck driver from Vic)”. She also recorded that Mr Taylor experienced panic attacks and that they occurred every few days with no known trigger. She did not think Mr Taylor could continue his then current employment due to anxiety.
In evidence are a series of handwritten clinical notes by Dr Perera, general practitioner at the Buckley Street Family Practice, Morwell, Victoria, dated from 2007 until 2015. The first record after 12 December 2014, is 16 December 2014 which records the following:
“H/u Pain in back- since April 2014
Driving a truck
Ache in e hip
Pain in [indecipherable]
difficult to walk
& tenderness”
Mr Taylor was prescribed Voltaren and referred for an x-ray of the lumbar spine.
On 16 December 2014, Mr Taylor underwent an x-ray of his lumbosacral spine. In a report dated the same, Dr M Gray records that the “alignment is satisfactory”. Dr Gray added that there was marked narrowing of the L2/3 and L4/5 discs with mild spondylosis. There was no fracture or pars defect. The SI joints were normal.
On 18 December 2014, Mr Taylor underwent a CT scan of his lumbosacral spine. In a report dated the same, Dr A Tripathi concludes that there is facet joint osteoarthritis at L3-4, L4-5 and L5-S1. He also concludes that there is disc thinning and bulging at L2-3, L3-4 and L4-5. He further adds that there is moderate stenosis of the central canal at L4-5 and milder stenosis at L3-4 and L2-3, which is due to a combination of disc bulging and flaval ligaments and facet joints.
Mr Taylor attends on Dr Perera again on three further occasions in December 2014 complaining of back pain, namely, 18, 19, and 22 December 2014. In the clinical notes for 22 December 2014, Dr Perera records:
“Back pain- since 13/12/14.
Got worse. Has been lifting
heavy weight- since 4/14
Pain was worse on 13/12 after
lifting a very heavy weight
(fire fighting pumps - polykarts)
& heavy cardboard boxes containing
metals and cables.
The truck that he was driving
the springs of the seat were broken
& he had driving this vehicle for
about more than 50,000 kilometres.
([indecipherable] drive about 1000km a
day.
Pain in back radiating to the
left leg & to the buttock.
Numbness & tingling in left leg.
Seen a doctor in QL[D]Crows Nest Medical Centre…”
In evidence are a series of medical certificates of capacity issued largely by Dr Perera, certifying Mr Taylor to have no current work capacity from 22 December 2014 to 14 April 2015, 29 May 2015 until 29 November 2015, 30 January 2016 to 29 February 2015 (sic, 2016), 4 March 2016 to 3 May 2016.
On 7 January 2015, Mr Taylor attended on Dr Tee, general practitioner practising at the Buckley Street Family Practice. In the clinical notes it is recorded that Mr Taylor attended due to lower back pain and a disc bulge. It is also recorded that there has been lower back pain since April 2014. The following symptoms are recorded: left sciatic pain, left ankle weakness, numbness in the left thigh, and weakness in dorsiflexion and extension at the left big toe.
On 17 March 2015 WorkCover wrote to Dr Perera and asked her to advise the history and cause of Mr Taylor’s injury/condition. Dr Perera answered:
“History of back pain for several months. Has been lifting heavy weight since April 2014. Pain got worse on 13/12/2014 after lifting a very heavy weight on the same day (firefighting pump- Polykarts) & (heavy cardboard boxes containing metals & cables. Rolls of aluminium ramps & rolls of chainsaw. More than 20kg. lifting manually.”
Dr Perera also recorded that she considered work to be a substantial contributing factor. She added that:
“He said the truck that he was driving – the springs of the seats were broken & he has driven this vehicle for about more than 50,000km. (sometimes drive 1,000km at a [illegible]) This also contributed to the pain in back. Pain in back radiating to the left leg & to the buttocks. Numbness & tingling in the left leg.”
Dr Perera further recorded obstacles to Mr Taylor returning to work. Those obstacles identified were back pain, difficultly in bending and movement causing pain.
On 12 January 2016, Mr Taylor attended on Dr James Rowe, specialist occupational physician, qualified by Mr Taylor’s legal representatives. In a report dated the same, Dr Rowe took a history that in December 2014, while loading and unloading stock, weighing upwards of 30 kilograms, Mr Taylor suffered back pain. The pain “radiated initially to the left leg and later to the right one.”
Dr Rowe diagnosed Mr Taylor with lumbosacral disc derangement, most likely at L4-5, affecting the L5 nerve root on the left. He recorded that as a result of the back pain Mr Taylor has fallen over on several occasions. He suffered a fracture in his left forearm and wrist from a fall which required an open reduction and internal fixation.
Dr Rowe found Mr Taylor’s condition to be directly related to the incident on 13 December 2014. He recorded that it was a “direct result of the lifting and twisting that he performed on that date”. Dr Rowe added that there was a minor degenerative change of the back but found that that was of no relevance. He recorded that “[t]his is a direct injury related to employment and the requirement to perform excessive and heavy lifting over a period of time.”
Dr Rowe found that Mr Taylor was not fit for work due to his back condition and his left hand, which was in cast and plaster. He found Mr Taylor to be “temporarily totally incapacitated for work” and needed to be reviewed in six months. He added that Mr Taylor does not have capacity to go back to work because “[h]e cannot lift. He cannot sit for too long. He cannot walk and he cannot work. He is not fit for his previous job.”
On 20 May 2016, Mr Taylor attended on Dr Haig, consultant orthopaedic surgeon, at the request of the second respondent’s legal representatives. On 27 May 2016, Dr Haig issued a report in which he recorded a history that Mr Taylor began experiencing “minor low back pain during June 2014 or July 2014.” He took over-the-counter medication and with a night’s rest the pain settled. The pain “eased up completely and he was free of pain”.
Dr Haig recorded that on 12 December 2014 Mr Taylor was advised by Jakmax that his employment was terminated. He then recorded the event on 13 December 2014. He recorded that Mr Taylor was loading a van with stock, which required him to take stock out of the van, take stock out of his garage, and place that stock on the lawn to “work out the logistics of loading it all in the van”. He could not fit all the stock in the van. The packing took “five or six hours”. He then rested, showered, and packed his clothes into a suitcase. He left the parked van in Casino and drove his car from Casino to Morwell, Victoria, where he slept overnight in the car in a truck parking area. Mr Taylor claimed that he “started to develop low back pain on his way home.”
Mr Taylor complained of “sciatica” and low back pain. He described this pain as a “constant dull ache, like a toothache”. He also complained of pain in his left buttock, constant pins and needles in the front of the left thigh, and intermittent pain in the lateral aspect of the left knee. He stated that his “symptoms are increasing”.
Dr Haig diagnosed Mr Taylor with lumbar spondylosis but found Mr Taylor’s “complaints and the findings on examination are out of all proportion to the radiological findings.” He recorded that the radiological findings were not unexpected in a 58-year-old man. Dr Haig did not consider Mr Taylor’s employment was a substantial contributing factor to the injury. He found Mr Taylor “not fit to return to his pre-injury duties but that may be for reasons other than purely musculoskeletal ones”. He stated that there was a “large non-organic component dominating the clinical picture.”
Dr Haig considered the low back pain to be likely of a gradual onset. As the pain is stated to have begun within a few days of beginning work with Jakmax, Dr Haig was doubtful whether it was aggravated by employment. He did not consider the employment was the main contributing factor either to the cause, aggravation, exacerbation, or acceleration of the lumbar spondylosis.
On 11 July 2016, Dr Haig issued a supplementary report to Sparke Helmore Lawyers. In that report Dr Haig states that at the time he saw Mr Taylor he would have been fit for alternative duties. He believed there was a wide range of employment available to Mr Taylor. He added that “[a]s his complaint was one of low back pain it would be inadvisable for such duties to be of an essentially physical type”.
On 29 August 2016, Dr Haig issued a further report to Sparke Helmore Lawyers having reviewed the surveillance footage. He noted at times Mr Taylor was seen to be “moving quite freely” and that this confirmed his opinion that Mr Taylor had capacity for employment. He recorded that the footage was inconsistent with Mr Taylor’s presentation and suggested that he had a greater work capacity than he suggested in his report dated 11 July 2016.
THE ARBITRATOR’S REASONS
The findings on injury
Mr Taylor brought his claim on three bases:
(a) that he sustained an injury to his back on 13 December 2014 while loading the van with boxes and other heavy product; or
(b) lifting, carrying, loading and unloading heavy product over the period from 31 March 2014 to 13 December 2014, and/or
(c) using and driving a work vehicle which had a defective or uncomfortable seat.
The Arbitrator found in favour of Mr Taylor on the first allegation but was not satisfied that allegations two and three had been proven. Briefly her reasons for those conclusions are as follows.
The alleged injury on 13 December 2014
Mr Taylor was informed on 12 December 2014 that his employment would be terminated. Nevertheless, the Arbitrator accepted that when he loaded the truck, as instructed on 13 December 2014 with the remaining stock held by him he was within the course of his employment. That finding has not been challenged.
Based on Mr Taylor’s evidence, the Arbitrator did not accept that he first felt back pain during the actual loading process of the van on 13 December 2014. She then considered as a factual question whether it should be accepted that the back pain came on on 14 December 2014 by reason of the loading work undertaken between 8 am and 4 – 4.30 pm on 13 December 2014. Having completed the loading of the van Mr Taylor set off on a journey from Casino to Morwell in Victoria driving his own vehicle at about 5 – 5.30 pm. There was a controversy about whether he stayed in a hotel “somewhere” overnight or whether he slept in his car in a truck stop.
Based on a lack of evidence, the Arbitrator rejected the proposition that sleeping in his car, if indeed he did, caused or contributed or gave rise to his symptoms (Reasons at [130]).
The Arbitrator analysed the medical evidence of Drs Rowe, Haig and Perera. She noted that Dr Rowe’s examination revealed limited movements of the back with painful flexion and extension. The Arbitrator found (at [133]) that altered sensation and weakness in the left foot and limited toe movements found by Dr Rowe were consistent with a back injury having been sustained. Those findings were consistent with the complaints recorded by Dr Perera on 16 December 2014 that Mr Taylor had back pain and was finding it difficult to walk. Dr Perera commented on 22 December 2014 that the back pain was radiating to the left leg.
The Arbitrator found (at [134]) that Dr Tee noted in January 2015 weakness in dorsiflexion and extension at the left big toe. The Arbitrator gave those findings “some weight” as they suggested that the doctors were not just relying on Mr Taylor’s complaints of pain.
The Arbitrator held that even though she had doubts about Mr Taylor’s reliability, she accepted that these doctors would have been well placed to detect had they thought the complaints of pain and radiculopathy were not genuine.
The Arbitrator considered the radiological findings. She accepted that Mr Taylor suffered from “a degenerate back”. He had been symptomatic on 22 October 2014 when he saw Dr Sun and he had sciatica and numbness at that time. However, when she saw him again on 11 November 2014, Dr Sun made no mention of Mr Taylor continuing to suffer back pain.
The Arbitrator concluded (at [136]):
“To my mind, the most plausible reasons for the onset of back pain in December 2014 are either the loading of the vehicle with the attendant lifting on 13 December 2014 or the lengthy drive from Casino to Morwell.”
Based on a lack of medical support for the latter, the Arbitrator excluded the lengthy drive as the cause of Mr Taylor’s complaints.
The Arbitrator concluded that the lifting on 13 December 2014 could not have caused canal stenosis or spondylosis but she accepted that it was more likely than not that it aggravated the degenerative process in Mr Taylor’s back.
The Arbitrator concluded that the injury suffered by Mr Taylor was “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”: Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 (Petkoska). The Arbitrator was satisfied that this had occurred because of the lifting incident on 13 December 2014 as demonstrated the next day when Mr Taylor experienced back pain, numbness and tingling, this being evident to Dr Perera a few days later. She concluded that Mr Taylor suffered an injury under s 4(a) of the 1987 Act by the heavy lifting involved in loading the vehicle on 13 December 2014.
The Arbitrator noted (at [141]) that although she had doubts about Mr Taylor’s credit, the objective evidence was sufficient to conclude that he had discharged the onus of proof by establishing an injury in the course of his employment as discussed above.
Lifting, carrying, loading and unloading heavy product between 31 March 2014 and 13 December 2014
The Arbitrator was not satisfied that the available evidence supported a finding, particularly in light of the absence of complaints to his employer during the relevant period, that the general nature and conditions of Mr Taylor’s employment was causative of his injury.
The Arbitrator also noted that Dr Rowe’s opinion tended to support a finding that it was the incident on 13 December 2014 that caused the injury. The one medical consultation during the relevant period with Dr Sun did not refer to any allegations of injury from lifting and loading during the course of his employment.
The alleged defective or uncomfortable seat
The Arbitrator’s findings in relation to the seat allegation are not challenged. It is sufficient to note that she did not accept the allegation for a number of reasons, namely that it was unlikely that Mr Taylor could have driven the vehicle for more than 50,000 km as he alleged, had the seat been defective. Had there been a problem with the seat it would likely have been evident to Mr Wilson who drove the vehicle both before and after Mr Taylor.
Further, given that the vehicle was repaired under warranty, had there been further issues with it the Arbitrator inferred that it would have been likely that any such problems would have been repaired whilst the seat remained under warranty.
Finally, email exchanges reveal that Mr Taylor raised the need for the van to be serviced, including the provision of new tyres, but made no reference to a defective seat.
Employment connected with the state (s 9AA of the 1987 Act)
Section 9AA of the 1987 Act provides:
“9AA Liability for compensation
(1) Compensation under this Act is only payable in respect of employment that is connected with this State.
(2) The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.
(3) A worker’s employment is connected with:
(a)the State in which the worker usually works in that employment, or
(b)if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or
(c)if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.
(4) In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.
(5) If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if:
(a)the worker is in this State when the injury happens, and
(b)there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.
(6) In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.
…”
The Arbitrator set out (at [88]–[92]) her understanding of the general scheme provided by s 9AA. The Arbitrator noted that the application of s 9AA does not turn on where the contract was made: Workers Compensation Nominal Insurer v O’Donohue [2014] NSWWCCPD 1 (O’Donohue) (at [63], [66] and [106]).
The section provides cascading tests for determining the state with which a worker’s employment is connected. Firstly by considering whether subsection 3(a) can be satisfied and, if so, there is no need to proceed further.
If s 9AA(3)(a) cannot be satisfied, one needs to consider whether subsection 3(b), that is where the worker is usually based for the purposes of his employment, satisfies the test.
If neither subsection 3(a) or (b) can be satisfied, it then becomes necessary to consider whether the test in subsection 3(c), namely the state in which the employer’s principal place of business in Australia is located, will identify the state of connection: Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83; 8 DDCR 535 (Martin) at [30].
The ‘usually works’ test: s 9AA(3)(a)
Section 9AA(3)(a) has been consistently interpreted so that “usually works” is not a reference to where the worker is working for the majority of his or her time, but rather where the worker habitually or customarily works: Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5 (Hanns).
In Avon Products Pty Ltd v Falls [2010] ACTCA 21 (Falls No 2) the Supreme Court of the Australian Capital Territory – Court of Appeal per Gray P, Penfold and Marshall JJ held that the statute under consideration in those proceedings, namely the Workers Compensation Act 1951 (ACT) s 36B(3) which dealt with the worker’s connection to a state or territory, “placed no gloss on ‘usually works’” to compel a consideration only of where a worker is “required” (under his or her contract) to work. The Court held that where the worker “usually works” is not affected by where the worker is “required” to work or where the worker chooses to work. The “test is where the work is done”.
The Arbitrator found that Jakmax’s witnesses all confirmed that Mr Taylor’s role was to work in northern New South Wales and southern Queensland. Mr Taylor stated that he worked about 50 per cent of the time in New South Wales and 50 per cent of the time in Queensland. The Arbitrator concluded that she could not find a state of connection in New South Wales on the facts as stated. On the available evidence the Arbitrator concluded she could not determine where Mr Taylor habitually worked, therefore it was necessary to consider whether s 9AA(3)(b) provided an answer as to whether Mr Taylor’s employment was connected with the state of New South Wales.
The ‘usually based’ test: s 9AA(3)(b)
After considering relevant authorities, the Arbitrator found (at [109]) that the fact that Mr Taylor relocated to Casino after commencing employment with Jakmax was a strong factor to conclude that he was based in New South Wales rather than Victoria. Casino was not just Mr Taylor’s place of residence, but a place where he stored goods and the place where he left from and returned to after travelling on sales trips. Therefore, the Arbitrator was satisfied that Casino was the place where Mr Taylor was usually based.
The Arbitrator’s conclusion was strengthened by an examination of the entries in the clinical notes of Dr Perera, Mr Taylor’s longstanding general practitioner in Victoria, which did not include any entries concerning Mr Taylor from 7 December 2013 to 16 December 2014. The Arbitrator inferred that this was because he was based in Casino during the relevant period.
The Arbitrator accepted that Mr Taylor chose to live in Casino in New South Wales. She noted that goods that were sent to Mr Taylor for resale were sent to his residence in Casino. Larger goods were sent to a retailer in Ballina in New South Wales for him to collect. Mr Taylor’s wages were paid from the company’s head office in Melbourne by transfer into his bank account. These factors reinforced the Arbitrator’s view that New South Wales was Mr Taylor’s usual base.
The Arbitrator concluded that it was unnecessary to consider the application of s 9AA(3)(c), namely if no state or no one state was identified by subparagraphs (a) and (b), the state in which the employer’s principal place of business is located is taken to be the state of connection. It was unnecessary to consider subsection 3(c) because the answer to the connection to the state of New South Wales was satisfied under subsection 3(b).
Incapacity
Mr Taylor claimed a consequential condition, namely a fracture to his left wrist, arm and hand. He alleged that the injury occurred as a consequence of his back injury when his leg gave way, causing him to fall, sustaining the injuries to his wrist and hand. The Arbitrator accepted Dr Rowe’s opinion that is was feasible that Mr Taylor’s leg would give way due to the back injury, in turn causing him to fall. The Arbitrator did not accept any incapacity arose as a result of the consequential condition.
Having considered the medical evidence at some length, the Arbitrator stated (at [150]) that Dr Rowe suggested that with treatment, rehabilitation and retraining Mr Taylor may be capable of re-entering the workforce.
However, the Arbitrator concluded that the weight of medical evidence was in favour of a finding that Mr Taylor had no current capacity for employment due to his lumbar injury from 23 April 2015 and continuing.
In reaching that conclusion, as the Arbitrator explained (at [151]), she took into account Mr Taylor’s unreliability as a witness and his alleged exaggerated presentation to Dr Haig. Nevertheless, she concluded that weight had to be given to the opinion of Dr Perera in relation to Mr Taylor’s capacity to work because Dr Perera had seen him most frequently. The Arbitrator placed no reliance on the evidence of Dr Sun, namely that Mr Taylor was finding it difficult to cope because of anxiety and panic attacks. The Arbitrator concluded that Mr Taylor was entitled to a full award pursuant to s 37(1) of the 1987 Act from 23 April 2015 to date and continuing.
GROUNDS OF APPEAL
Jakmax alleges that the Arbitrator erred in finding that Mr Taylor:
(a) sustained an injury on 13 December 2014;
(b) was usually based for the purposes of his employment with Jakmax in New South Wales, and
(c) was totally incapacitated from 23 April 2015.
SUBMISSIONS AND FINDINGS
Ground one – that the Arbitrator erred in finding that Mr Taylor sustained an injury on 13 December 2014
Jakmax’s submissions
Jakmax’s submissions are put contextually against a background that, first Mr Taylor’s employment had been terminated the day before the alleged injury, and, secondly, against an acceptance by the Arbitrator that Mr Taylor did not feel back pain whilst undertaking the loading work on 13 December 2014.
The Arbitrator gave little or no weight to “the clinical records of [Mr Taylor]” in reaching her findings. Namely, that Mr Taylor had complained of back pain and sciatica to Dr Sun on 22 October 2014, six weeks or so before the alleged injury. Her failure to do so was not adequately explained.
The Arbitrator dismissed the evidence of Dr Sun in relation to her examination of Mr Taylor on 22 October 2014 as a short term incident of back pain from which Mr Taylor quickly recovered (Reasons at [135]). The entry by Dr Sun was evidence of prior back pain of unknown origin. Dr Sun’s opinion was not that the long driving stints were the cause of Mr Taylor’s back condition, but rather it was worse when he drove for long periods. Dr Sun’s clinical notes of 22 October 2014 reveal that Mr Taylor was not taking regular medication, but he did take Mersyndol when the pain was severe. Therefore, Jakmax submits that Dr Sun’s evidence is “indicative of a condition that had existed over a period of time and which is of unknown origin”.
The clinical records of Dr Perera dated 16 December 2014, (referred to at [42] above) and the email from Mr Taylor to Mr Brown, dated 17 December 2014 (referred to at [35] above), are inconsistent with Mr Taylor having sustained an injury on 13 December 2014. Jakmax submits:
“the email from [Mr Taylor] to Ben Brown dated 17 December 2014 was considered by the Arbitrator at paragraph 44 of the Statement of Reasons when making findings with respect to the seat in the company vehicle which [Mr Taylor] drove. The Arbitrator did not apply the same reasoning to whether [Mr Taylor] sustained injury on 13 December 2014.”
The Arbitrator “should have given appropriate weight” to the clinical record of 16 December 2014 and the email of 17 December 2014 in her analysis of the evidence. The significance of the email being that Mr Taylor said that the journey from Casino to Morwell “was excellent”, that is, there was no mention of the development of symptoms during the journey. The clinical record of Dr Perera was significant because it was a contemporaneous record indicating a history of back pain dating to April 2014. Jakmax submits the Arbitrator should have given this evidence more weight, given her concerns about the reliability of Mr Taylor’s evidence and the fact that he had been dismissed by Jakmax.
If it is found that Mr Taylor suffered back pain or an increase in back pain after 13 December 2014, the Arbitrator erred in dismissing the argument that the journey from Casino to Morwell, and more particularly sleeping overnight in his car, caused or contributed to the symptoms. Dr Haig reported that Mr Taylor’s symptoms started to develop on his way home, that is, during the car journey from Casino to Morwell, a factor that was unrelated to Mr Taylor’s employment.
Jakmax submits:
“in any event it had already been recorded in the clinical notes of Dr Perera and Dr Sun that [Mr Taylor] had complained that the act of driving a motor vehicle had worsened his back pain and the act of sleeping in the car would have presumably been less comfortable and ergonomically appropriate than driving the vehicle.”
Mr Taylor’s submissions
Jakmax has failed to demonstrate appealable error.
The Arbitrator did not “dismiss” the submission that driving his vehicle from Casino to Morwell and/or sleeping in it overnight caused or contributed to Mr Taylor’s symptoms. The Arbitrator carefully weighed the evidence and concluded (at [130]) that the submission was considered but rejected.
The Arbitrator concluded (at [136]) that the most plausible reason for the onset of back pain in December 2014 was either the loading of the vehicle with the attendant lifting on 13 December 2014 or the lengthy drive from Casino to Morwell. She concluded that, as there was no evidence that the drive from Casino to Morwell caused the injury to Mr Taylor’s back, on the balance of probabilities the lifting on 13 December 2014 could not have caused canal stenosis or spondylosis, but she did accept that it was more likely than not that it did aggravate the degenerative process in Mr Taylor’s back. That conclusion was reached after weighing all of the evidence in detail and was a thorough and logical conclusion to reach.
The Arbitrator correctly followed the reasoning in Petkoska and applied the “commonsense test” in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796.
Discussion
Whether Mr Taylor sustained an injury is a question of fact.
To determine whether factual errors have occurred, I am guided by the principles discussed by Barwick CJ at 506 in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir) (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227). Those principles were summarised by Deputy President Roche in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at [19]–[20] as follows:
“19. ...
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
I do not accept the submission that the Arbitrator “dismissed” the evidence of Dr Sun, or that she gave it insufficient weight. The Arbitrator recorded Dr Sun’s evidence in detail at [67] and [68]. When Dr Sun saw Mr Taylor on 22 October 2014, seven weeks or so before the incident on 13 December 2014, she recorded a history that Mr Taylor had reported two conditions: firstly, problems associated with his low back and sciatic symptoms down to the left knee, and, secondly, an anxiety condition. At that time he wasn’t taking regular pain relief except for Mersyndol when the pain was severe. In a further consultation on 11 November 2014 the focus of attention shifted from the complaints of low back pain to the anxiety condition, Dr Sun noting that Mr Taylor had expressed a concern about whether he would be able to continue working, not because of the back condition but because of the anxiety.
Mr Taylor moved to Casino shortly after he commenced working for Jakmax in early April 2014. No evidence has been produced by Jakmax to indicate that other than the two consultations referred to above, that Mr Taylor had sought any treatment for a back condition whilst living in Casino.
The Arbitrator concluded that Dr Sun’s evidence was consistent with Mr Taylor suffering from a degenerative condition in his lumbar spine at the time he consulted her on 22 October 2014. Nevertheless as the Arbitrator observed Mr Taylor continued working without complaint and without seeking medical treatment until the incident on 13 December 2014. That finding was consistent with the evidence and does not reveal any error.
In weighing up whether Mr Taylor’s condition was due to the alleged incident on 13 December 2014, the Arbitrator acknowledged (at [123]-[141]) that, the radiological evidence supported a conclusion that Mr Taylor had been suffering from a degenerate back. She noted (at [135]) that he had been symptomatic since 22 October 2014. Having weighed that evidence with the evidence of Mr Taylor, and the other medical evidence, the Arbitrator concluded that the most plausible explanation for Mr Taylor’s injury was the loading of the delivery van and attendant lifting on 13 December 2014. That finding was also open on the evidence presented and does not involve error.
I accept Jakmax’s submission that Mr Taylor’s complaints to Dr Perera on 16 December 2014 of back pain, were inconsistent with Mr Taylor failing to make any reference to it in the email to Mr Brown the following day. That is, essentially, the finding the Arbitrator made (at [44]) where she noted “[i]t does seem unusual that Mr Taylor would not have also mentioned back pain that he thought was due to loading the van”. Jakmax’s submission is that the Arbitrator should have given this evidence “appropriate weight”.
To put the email in question in context, it was responsive to an email also dated 17 December 2014 from Mr Brown to Mr Taylor. The substance of the email dealt with an allegation that $3,500 worth of stock was unaccounted for following the collection of the van and its contents from Mr Taylor’s former residence in Casino. Within half an hour Mr Taylor responded with a terse email exchange firstly, denying that he had stolen any goods, and, secondly, threatening an unlawful dismissal action. In that context, it is perhaps unsurprising that Mr Taylor did not enter into a discussion regarding his back condition. It is evident that the Arbitrator had regard to that evidence. The submission that she gave inappropriate weight to that evidence has not been made out.
I also reject the submission that the Arbitrator erred in “dismissing” the argument that the journey from Casino to Morwell, and more particularly sleeping overnight in his car, caused or contributed to Mr Taylor’s symptoms. The evidence in relation to whether or not he did in fact sleep in the car is contradictory. Mr Taylor’s evidence is that he slept in a hotel. Dr Haig’s history is that Mr Taylor told him he slept in the car in a truck stop during the course of the journey. No further evidence was adduced from either party to clarify what in fact happened.
In any event, the Arbitrator found (at [130]) that there was no evidence to support the proposition that somehow sleeping in the car had caused or contributed or given rise to the symptoms. As a finding of fact that was correct. Even though Dr Haig made reference to sleeping in the car overnight he did not suggest, as the Arbitrator noted, that it would have been causative of the back pain of which Mr Taylor complains. Given the evidence before the Arbitrator, that was an appropriate finding and no error has been demonstrated.
Further, although Mr Taylor complained that driving the van from time to time aggravated his symptoms, there is no evidence that driving his own motor vehicle did so, nor is there any evidence to support the submission that driving the vehicle between Casino and Morwell caused or aggravated Mr Taylor’s condition.
I am not persuaded that an error of the kind described in Whiteley Muir has been established.
For these reasons ground one is rejected.
Ground two – that the Arbitrator erred in finding that Mr Taylor was usually based for the purposes of his employment with Jakmax in New South Wales
Jakmax’s submissions
The Arbitrator erred in failing to consider all relevant factors, other than the place to which stock was delivered to Mr Taylor, when considering where he was usually based.
The Arbitrator took into account the fact that goods were forwarded to Mr Taylor at his residence in Casino and also at a location in Ballina but “did not appear to have taken into consideration the fact that stock was received by [Mr Taylor] at other locations”.
Jakmax relies on Mr Taylor’s statement of 12 September 2016 where (at [9]) he said that “pallets of stock weighing 500 kilograms would periodically be sent from the warehouse in Victoria to various locations, usually the store of a customer in one of several towns”. Mr Taylor made a similar statement in his statement of 15 February 2016, adding “I would unload the pallet and fit the stock inside the van”.
Further, in his statement of 15 March 2015, Mr Taylor said that:
“my work would require that I received pallets of Jakmax stock pursuant to my requests depending on what I wanted to push in sales, the stock arrived a pallet at a time and was freighted by semi-trailer and mainly I would take possession of stock on the road, at a town I was visiting especially that I could use the (dealer) client’s forklift so to move stock and I would leave it at the client location.”
Jakmax submits that the Arbitrator erred in failing to consider that stock was delivered to Mr Taylor at places other than Ballina and his residence at Casino and that Mr Taylor spent a short amount of time each week dealing with the stock at Casino (ten minutes to one hour loading the van every weekend).
The email exchange from Mr Duggan dated 30 June 2016 records that:
(a) Mr Taylor spent 50 per cent of his time in New South Wales and 50 per cent of his time in Queensland;
(b) he received stock at multiple locations, not just Ballina and Casino;
(c) he spent a relatively small proportion of his week dealing with the stock at Casino;
(d) stock was delivered from Victoria;
(e) Jakmax’s office was in Victoria;
(f) Mr Taylor’s supervisor, with whom Mr Taylor communicated daily, was located in Victoria;
(g) Mr Taylor provided reports to his supervisor in Victoria;
(h) Jakmax’s financial controller was located in Victoria;
(i) Mr Taylor’s remuneration was processed in Victoria;
(j) any incidents were to be reported to Victoria, and
(k) Mr Taylor placed orders to Victoria either by telephone, iPad or mobile device.
Mr Taylor’s submissions
Jakmax’s submissions fail to reveal error other than to allege that the Arbitrator failed to consider all relevant factors. Moreover Jakmax fails to identify any relevant factor overlooked by the Arbitrator.
The Arbitrator was guided by the reasoning in Martin, Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27 (Klemke) and O’Donohue. Mr Taylor submits that the Arbitrator weighed up all of the evidence in a balanced and logical manner and has come to, what is in Mr Taylor’s submission, the only reasonable conclusion.
Mr Taylor submits “that to suggest that the Arbitrator has not considered all the relevant facts is misconceived and frankly, wrong”.
Discussion
The Arbitrator set out at some length the legal principles and relevant authorities in the application of s 9AA to the facts of this case. No challenge has been made to the Arbitrator’s approach in that regard.
The challenge is limited to the Arbitrator’s finding of fact to the application of s 9AA(3)(b). The Arbitrator’s conclusions concerning the application of s 9AA(3)(b) are dealt with in the reasons at [107] to [112]. Her conclusions were based on the following factors:
(a) that Mr Taylor relocated to Casino from his home in Victoria strongly supported the conclusion that he was based in New South Wales rather than Victoria;
(b) Mr Taylor not only lived in Casino but used his residence to store work stock;
(c) his sales journeys commenced and ended from his residence in Casino;
(d) Mr Duggan’s evidence that smaller goods were sent to Mr Taylor’s residence and larger goods were sent to a retailer in Ballina “who we are good friends with and ST would pick up when needed”, and
(e) the fact that goods were forwarded to Mr Taylor in two New South Wales locations reinforced the Arbitrator’s conclusions that New South Wales was his usual base.
There are several factors that may be considered when determining the state in which a worker is “usually based” for the purposes of employment. Those factors include, but are not limited to, the work location in the contract of employment, the location the worker routinely attends during the term of employment to receive directions or collect materials or equipment, the location where the worker reports in relation to the work, and the location from where the worker’s wages are paid (Tamboritha Consultants Pty Ltd v Knight[2008] WADC 78 at [80]-[84]; Martin at [60]).
The locations at which Mr Taylor received stock reinforced the Arbitrator’s conclusion that the state in which he was usually based for the purposes of employment was New South Wales. Mr Duggan’s email of 30 June 2016 on this point is compelling. In answer to the question “From where did the applicant collect the materials and/or equipment [indecipherable] performance of his duties?” Mr Duggan responded “Smaller Goods were sent to ST’s residence and larger goods were sent to a Retailer in Ballina who we are good friends with and ST would pick up when needed.”
There is nothing in the evidence of Mr Brown, Jakmax’s national sales manager at the relevant time, to indicate that stock was forwarded to Mr Taylor other than at locations in New South Wales.
Mr Taylor’s evidence that stock was sent from the warehouse in Victoria to various locations, including the premises of customers in one of several towns was left unexplored and unexplained. His evidence on this point was in conflict with the evidence of both Mr Brown and Mr Duggan. In any event, if stock was delivered to locations other than Casino and Ballina the evidence is silent as to whether those locations were in New South Wales or some other state.
I accept that the Arbitrator did not make express reference to Mr Taylor’s evidence regarding collecting stock from other locations other than at his home in Casino and Ballina. However, nothing turns on that omission. The evidence overall clearly supports the Arbitrator’s finding that stock was regularly delivered to Mr Taylor either at his home in Casino or to Ballina in New South Wales.
The fact that Mr Taylor spent time each weekend loading his vehicle at his home base in Casino supported the Arbitrator’s conclusion that he was usually based in New South Wales. It did not matter how much time he spent loading the stock each weekend. The fact that it was done from a location within New South Wales was the relevant factor.
Mr Taylor’s evidence that from his “home base” in Casino he would use his work van to “travel service and sell/deliver stock” is powerful evidence that supports the Arbitrator’s conclusion. Furthermore, Mr Brown accepted that Mr Taylor relocated to Casino in New South Wales and that this was his “home base”.
The fact that Mr Taylor spent 50 per cent of his work time in New South Wales and 50 per cent in Queensland does not assist either party. The Arbitrator considered that evidence (at [104]) in her analysis of the application of s 9AA(3)(a), and the “usually works” test. Unsurprisingly, that evidence did not assist the Arbitrator in determining if the usually works test provided an answer to the state of connection. That conclusion was clearly correct.
Other than referring to the fact that the factors at [126(d)–(k)] were contained in Mr Duggan’s email of 30 June 2016, the relevance of those factors to ground two was not further developed. I infer the submission to be that they are factors which the Arbitrator failed to weigh in reaching her conclusion regarding the usually based test. If that is the submission I reject it.
The fact that Mr Taylor’s remuneration was processed from Victoria and that he reported to his supervisor in Victoria are relevant factors that weighed in favour of a conclusion that Victoria was the state of connection under the usually based test. However, those factors are not decisive and must be weighed with the whole of the evidence.
The fact that Mr Taylor relocated to Casino after commencing employment with Jakmax, that Casino was not just Mr Taylor’s place of residence, but a place where he received and stored stock, the place where he left from and returned to when travelling on sales trips, and the place where he received instructions, overwhelmingly supports the Arbitrator’s conclusion that Mr Taylor was usually based in New South Wales.
The place where Jakmax’s office is located and where its financial controller is located are factors more relevant to a determination of the principal place of business. As the Arbitrator correctly concluded, based on the evidence presented, s 9AA(3)(b) provided a satisfactory answer to identify Mr Taylor’s employment as connected to the state of New South Wales. Therefore, it was unnecessary for the Arbitrator to consider the application of s 9AA(3)(c) and the principal place of employment test.
It follows that, if the Arbitrator failed to consider that evidence (if she was ever referred to it) it cannot have made any difference to the outcome. In any event, Jakmax has not submitted that the Arbitrator was required to consider the application of s 9AA(3)(c). Its challenge on appeal, as I have indicated above, is limited to whether or not the evidence supported the Arbitrator’s finding that s 9AA(3)(b) provided a satisfactory answer to the question.
For these reason ground two fails.
Ground three – that the Arbitrator erred in finding that Mr Taylor was totally incapacitated from 23 April 2015
Jakmax’s submissions
The Arbitrator relied on the medical certificates issued by Dr Perera. The last of those certificates certified Mr Taylor unfit for work to 3 May 2016. The Arbitrator placed weight on Dr Perera because she had seen Mr Taylor on a regular basis.
Dr Rowe opined that, with treatment, rehabilitation and re-training, Mr Taylor may be able to re-enter the workforce. At the time of his report (12 January 2016), Dr Rowe concluded that Mr Taylor was unfit to work. He also indicated that Mr Rowe needed to be reassessed.
The Arbitrator concluded that it was difficult to escape the conclusion that Mr Taylor exaggerated his condition to Dr Haig when examined by him on 20 May 2016.
The Arbitrator relied on Dr Rowe’s finding of an altered sensation and weakness in the left foot and limited toe movements to conclude that Mr Taylor suffered a back injury. Dr Haig found no tenderness of the lumbar spine and that ankle jerks were symmetrically present. Dr Rowe recorded on examination that the left ankle jerk or reflex was reduced and made no observation with respect to tenderness of the lumbar spine. Jakmax submits that these findings on examination, as far as they could be performed, indicated that Mr Taylor’s condition had improved since he was examined by Dr Rowe.
After viewing the surveillance footage the Arbitrator concluded that Mr Taylor’s movements were at odds with his presentation to Dr Haig. It is submitted that neither Dr Rowe nor Dr Perera had commented on the surveillance material. Dr Haig on the other hand concluded after viewing the surveillance footage that Mr Taylor’s presentation on the video was inconsistent with his presentation on assessment. This caused Dr Haig to conclude that “there are no restrictions need apply” in respect of Mr Taylor’s capacity for work.
These submissions have not been further developed. However, I infer that they are intended to support in general a submission that the Arbitrator erred in finding that Mr Taylor was totally incapacitated from 23 April 2015.
Mr Taylor’s submissions
Mr Taylor submits that Jakmax failed to identify any error made by the Arbitrator.
He submits:
“This appeal requires more than just being unhappy with the conclusions that the Arbitrator reached.
The Arbitrator has thoroughly weighed the available evidence and has come to a logical and considered conclusion.”
Discussion
Whether Mr Taylor was incapacitated in the relevant period is a question of fact.
Dr Perera saw Mr Taylor regularly from December 2014 at least through to August 2015. Throughout that period she continued to certify Mr Taylor unfit for work. In her report on 17 March 2016, Dr Perera reported to WorkCover, in response to a series of questions put to her, that Mr Taylor remained unfit for work at that time. She identified that the obstacles to him returning to work were continuing back pain, difficulty bending and movement causing pain. Given the consistency of her treatment it was reasonable and appropriate that the Arbitrator would place weight on her opinion.
The Arbitrator’s ultimate conclusion was based on the weight of evidence in favour of a finding that Mr Taylor remained incapacitated for work. The Arbitrator took into account Mr Taylor’s unreliability and his exaggerated presentation to Dr Haig (at [140]-[141]). The Arbitrator found that whilst Mr Taylor’s credit had been impugned, she was not obliged to reject the whole of his evidence, however, as the Arbitrator identified, she was required to carefully consider his evidence.
The Arbitrator considered the evidence of Dr Perera and Dr Rowe who both certified ongoing total incapacity. There is no suggestion that Mr Taylor presented to either of those doctors in the manner he did to Dr Haig. The Arbitrator also viewed the surveillance footage and commented upon it. She concluded that an assessment of the evidence as a whole favoured a finding of continuing incapacity. That finding was open based on the evidence of Mr Taylor and Drs Perera and Rowe.
I do not accept the submission that Mr Taylor’s condition had improved by the time he was examined by Dr Haig. With no disrespect to Dr Haig, it is clear that his examination of Mr Taylor was incomplete due to Mr Taylor’s exaggerated presentation. Dr Haig’s report does not support the submission that Mr Taylor’s condition had improved.
I am not persuaded that an error of the kind described in Whiteley Muir has been established.
For these reasons ground three also fails.
ORDER
The Arbitrator’s determination of 29 November 2016 is confirmed.
Judge Keating
President
18 May 2017
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