King Tomislav Croatian Club v Vucic
[2008] NSWWCCPD 33
•18 March 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:King Tomislav Croatian Club v Vucic [2008] NSWWCCPD 33
APPELLANT: King Tomislav Croatian Club
RESPONDENT: Marijan Filip Vucic
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC13496-06
DATE OF ARBITRATOR’S DECISION: 15 October 2007
DATE OF APPEAL DECISION: 18 March 2008
SUBJECT MATTER OF DECISION: Error of law; error of fact; ability to earn a living; integration of physical disabilities and chronic psychiatric condition; whether previous award for prior injury should be taken into account; inadequate reasons for decision.
PRESIDENTIAL MEMBER: Acting President Gary Byron
HEARING:On the papers
REPRESENTATION: Appellant: QBE In House Legal
Respondent: P.K. Simpson & Co
ORDERS MADE ON APPEAL: Paragraphs 1, 2 and 3 of the decision of the Arbitrator dated 15 October 2007 are revoked.
Paragraphs 4, 5 and 6 are confirmed.
The matter is remitted to the Arbitrator concerned for determination afresh, in accordance with these Reasons.
No order is made as to the costs of this appeal.
BACKGROUND
On 12 November 2007 King Tomislav Croatian Club (‘the Croatian Club’), the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 October 2007.
The Appellant’s insurer at all relevant times was QBE Workers Compensation (NSW) Limited (‘QBE’).
The Respondent to the Appeal is Mr Marijan Filip Vucic (‘the Respondent Worker/Mr Vucic’).
Mr Vucic commenced employment as a Process Worker with Baiada Select Poultry Pty Ltd (‘Baiada’) on or about 1 February 1994. He suffered injury to his right hand when it was caught in a boning and mincing machine on 20 April 1994. Mr Vucic suffered incapacity as a result of this injury and his claim for workers compensation came before the Compensation Court of New South Wales (‘the Court’) (Matter No. 8291/97). On 9 February 1998 His Honour Judge Walker made an award in favour of Mr Vucic ordering payment of: compensation pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’); section 66 (of the 1987 Act) lump sum compensation; section 67 (of the 1987 Act) lump sum compensation, and expenses pursuant to section 60 of the 1987 Act. That award was, by consent, amended by order of the Court on 21 May 1998, reducing the entitlement to lump sums and providing that the matter be stayed in all aspects “save as for weekly compensation”. This variation appears to have been made, having regard to the fact that Mr Vucic had lodged an appeal with the NSW Supreme Court, Court of Appeal. On 22 July 1999 the NSW Court of Appeal delivered judgment ordering that the appeal be dismissed with costs.
Mr Vucic remained in employment with Baiada until approximately November 1994. He obtained employment as a barman with the Croatian Club for the period 1 September 1998 to 31 January 2000. He claims to have suffered injury to his right arm, right shoulder, neck, left knee and sexual organs when he lifted a carton of VB stubbies on or about 15 November 1998, and also, due to the “nature and conditions of the applicant’s employment [which] involved manual handling, bending, lifting and carrying that put stress and strain on the body parts referred to above.”
Mr Vucic lodged a claim in respect of this injury with QBE for compensation on 27 October 2004 seeking weekly benefits at the rate of $384.00 per week from 1 February 2000 to date and continuing and lump sum compensation of $13,160 pursuant to section 66 of the 1987 Act in respect of 28% permanent loss of efficient use of sexual organs. On 3 August 2005 Mr Vucic lodged a further claim with QBE for permanent impairment pursuant to section 66 in relation to injury to his neck ($4,800), left leg at or above the knee ($3,750), and right arm at or above the elbow ($6,400).
On 31 March 2005 Mr Vucic filed with the Commission an ‘Application to Resolve a Dispute’ (matter no. WCC4930-05) citing Baiada as the First Respondent and the Croatian Club as the Second Respondent. The Application sought an award with respect to medical expenses, lump sums with respect to permanent loss of efficient use of sexual organs, and pain and suffering (sections 60, 66 and 67 of the 1987 Act) as against Baiada. Mr Vucic sought an award against the Croatian Club for medical expenses, permanent loss of efficient use of sexual organs, permanent impairment of neck and permanent loss of use of left leg at or above the knee, together with lump sums in respect of pain and suffering (sections 60, 66 and 67 of the 1987 Act).
The proceedings against the Croatian Club were discontinued at the conciliation conference held on 5 July 2005. The Arbitrator issued a Certificate of Determination on 12 September 2005 entering an award in favour of Baiada in respect of Mr Vucic’s claim for compensation pursuant to sections 66 and 67 for loss of use of sexual organs, and in respect of his claim for medical expenses under section 60 of the 1987 Act. Mr Vucic appealed the decision of the Arbitrator. The Presidential member determined the appeal on 18 August 2006, confirming the Arbitrator’s decision.
Mr Vucic filed in the Commission a further ‘Application to Resolve a Dispute’ on 25 August 2006 claiming weekly compensation of $384 per week and continuing, medical expenses pursuant to section 60 of the 1987 Act and permanent impairment including pain and suffering compensation. Mr Vucic claims to have sustained injuries while employed at the Croatian Club on or about 15 November 1998 to his right arm, right shoulder, neck and consequential loss of efficient use of sexual organs. He claims that due to the nature and conditions of his employment with the Croatian Club between 1 September 1998 and 30 January 2000, which involved manual handling, bending and carrying, he sustained injuries to his right arm, right shoulder, neck and consequential loss of efficient use of sexual organs and left knee and left hip.
On 15 September 2006, the Croatian Club filed a ‘Reply to Application to Resolve a Dispute’ (‘Reply’) in the Commission.
The matter was listed for a conciliation/arbitration hearing before a Commission Arbitrator on 17 September 2007. Issues relating to permanent impairment were resolved by agreement between the parties at the teleconference held on 28 September 2007. The Arbitrator was advised that Mr Vucic’s claim for compensation pursuant to section 67 of the 1987 Act lapsed, as the permanent impairment assessments did not satisfy the statutory requirements under that section.
On 15 October 2007 the Arbitrator issued a ‘Certificate of Determination’ in terms set out below at paragraph 52 and a ‘Statement of Reasons for Decision’ (‘Reasons’).
PRELIMINARY MATTERS & LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
For the Commission to grant leave to appeal, the appeal must meet the monetary threshold imposed by section 352(2) of the 1998 Act, which provides:
“The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The Croatian Club submits that the amount of compensation in issue on appeal exceeds $5,000 and is clearly more than 20% of the amount awarded in the decision. Mr Vucic makes no submission on this aspect. Having regard to the amount of compensation at issue in the appeal, the Croatian Club’s submission is correct.
Both sections 352(2)(a) and (b) of the 1998 Act are satisfied.
Section 352(4) of the 1998 Act states that an appeal can only be made within 28 days after the making of the decision appealed against. The Croatian Club’s appeal was lodged in the Commission on 12 November 2007, in compliance with section 352(4) of the 1998 Act.
Mr Vucic’s Solicitors wrote to the Registrar of the Commission on 19 November 2007, in the following terms:
“The Workers Compensation Commission matter no. is WCC 13496-2006.
We act for the worker Marijan Filip Vucic.
On 13 November 2007, we were served with an unsealed Application to Appeal against the decision of the Arbitrator.
It is noted that Section 352(4) of the 1998 Act, requires that an appeal can only be made within 28 days after the making of the decision appealed against. The decision was made on 15 October 2007. The appeal should have been made on or before 12 November 2007.
Please confirm whether or not the appeal has been lodged in time.
If the appeal has been lodged out of time, it is noted that the requirements of Rule 16.2(11) must be fulfilled to the satisfaction of the Presidential member.
We look forward to hearing from you.”
There is no record of any response from the Registrar to this correspondence.
However, by letter dated 12 November 2007, the solicitors for the Croatian Club had informed Mr Vucic’s solicitors in the following terms, that the Appeal was being filed:
“We refer to the above matter and previous correspondence.
We are instructed to appeal the decision of [the Arbitrator] dated 15 October 2007.
We enclose by way of service unsealed Application Appeal Against Decision of Arbitrator, which we are currently filing with the Workers Compensation Commission today.
A sealed copy along with Directions will be served in due course.”
Under cover of a letter dated 19 November 2007, the Registrar forwarded sealed copies of the Application, incorporating the Registrar’s Direction, to the solicitors for the Croatian Club.
Under cover of a letter dated 7 January 2008, the solicitors for the Croatian Club provided the commission with a ‘Certificate of Service’, certifying that the sealed Application and the Direction was served upon “the Respondent” by DX on 22 November 2007. A copy of a letter dated 22 November 2007 to Mr Vucic’s solicitors, in the following terms, was attached to the ‘Certificate of Service’:
“We refer to the above matter and previous correspondence.
We enclose by way of service the following documents:
1.Sealed Application – Appeal Against Decision of Arbitrator
2.Direction dated 20 November 2007”
The Croatian Club’s letter of 7 January 2008, states:
“We refer to the above matter and previous correspondence and the telephone discussion between Ning of your office and Neila Estigoy of our office this instant.
Please find enclosed a copy of our letter dated 22 November 2007 enclosing a Certificate of Service and a copy of the letter of service on the Respondent worker dated 22 November 2007.
We request a copy of a transcript of proceedings at your earliest convenience.”
The Registrar had already supplied both parties with a copy of the transcript, on 5 December 2007.
A File Note on the Commission file dated 7 January 2008 sets out brief details of a telephone conversation between Mr Vucic and an officer of the Commission with regard to the progress of the Appeal. Mr Vucic expressed some dissatisfaction at the prospect of further delay and was informed that he could apply for an expedited determination of the matter. He indicated that he would consult his solicitor and might consider taking an action in the Supreme Court. The same officer of the Commission is the person referred to in the Croatian Club’s letter of 7 January 2008. There is no record on the Commission file as to the details of the telephone conversation referred to in that letter.
On 15 January 2008 the Croatian Club filed in the Commission ‘Further submissions and Argument in Support of Appeal’ in which it submitted that it had not received any written submissions on behalf of Mr Vucic and requested the opportunity of responding to any submissions that Mr Vucic might make, in the event that its request for an oral hearing is not successful. The Croatian Club states, “A copy of same has been forwarded to the Respondent Worker’s solicitors.”
By letter dated 21 January 2008 Mr Vucic’s solicitors wrote to the Registrar in the following terms:
“We refer to our letter dated 19 November 2007 and note that you did not provide us with a courtesy of a response as to whether the appeal had been lodged in time.
On 9 January 2008 we received a letter from QBE dated 7 January 2008 which had attached to it a copy of a letter by QBE to us dated 22 November 2007 and a sealed copy of the Application to Appeal that was apparently lodged with the Commission on 12 November 2007.
The sealed copy contained the Directions that were made on 20 November 2007 that had all expired by the time it came to attention of the writer on 17 January 2008. The letter by QBE to us dated 22 November 2007 and the sealed copy of the Application to Appeal had not been previously received. Perhaps there had been a mix up at QBE. It would not be the first time in the experience of this firm that QBE had purported to send a letter when it had not in fact been received. It is noted that the contact details at QBE have changed.
It is noted that there is no question that the appeal has been lodged within time.
We have had the opportunity to review the Application to Appeal and the Submissions made on behalf of the employer. Submissions on behalf of the worker who is the respondent to the Appeal are set out below.”
Mr Vucic’s solicitors did not lodge a form 9A ‘Notice of Opposition’ or a form 4 ‘Certificate of Service’ with the Commission as required in compliance with Rule 16.2 (7), (8) and (9) of the Workers Compensation Commission Rules 2006. However, they state that a copy of the letter dated 21 January 2008 with the submissions attached, was forwarded to the Croatian Club’s solicitors on the same day.
On 21 January 2008 the Registrar wrote to each party in the following terms:
“We advise that the appeal has now been referred to the President.
The President will allocate the matter to a Presidential member for review. The appeals will be considered in order of receipt. Urgent matters should be brought to the attention of the Registrar.
The Presidential member may determine the leave application and appeal solely on the basis of the written application and any written notice of opposition.
You will be advised of any further action required in this matter. If the matter is determined on the papers, a copy of the decision will be issued to the parties.”
The Croatian Club’s solicitors have filed no further submissions in this Appeal since 21 January 2008, when a copy of Mr Vucic’s submissions was furnished to them.
Rule 16.2 (5) provides:
“(5) The party lodging an application referred to in subrule (1) must serve a sealed copy of the application, including any attachments, on:
(a) all other parties to the proceedings, and
(b) where any of those parties is an employer (but not a self-insurer), the employer’s insurer,
during the period of 14 days commencing on the day on which the Registrar registers the application.”
According to the Croatian Club’s ‘Certificate of Service’ the sealed copy of the Application was served by DX on Mr Vucic’s solicitors on 22 November 2007, in compliance with the Rule. Mr Vucic’s solicitors claim that it was not received on that occasion. They further state that on 9 January 2008 they received a letter from the Croatian Club’s solicitors, dated 7 January 2008, enclosing a copy of the covering letter of 22 November 2007 and a sealed copy of the Application.
In any event, the Croatian Club’s ‘Certificate of Service’, certifying that the Application and Direction were served on 22 November 2007 was not filed in the Commission until 9 January 2008 (under cover of the letter of 7 January 2008), in breach of Rule 16.2 (6)).
Mr Vucic’s solicitors speculate, “Perhaps there had been a mix up at QBE.” Moreover, they appear to cast doubt on the veracity of the Croatian Club’s solicitors ‘Certificate of Service’, stating, “It would not be the first time in the experience of this firm that QBE had purported to send a letter when it had not in fact been received.”
Putting to one side any inference that might be suggested by that statement, Mr Vucic’s solicitors offer nothing to explain why the correspondence containing the Appeal application and Direction, purportedly received in their office on 9 January 2008, did not come to the attention of the writer until 17 January 2008, some eight days later.
Moreover no explanation is forthcoming for the failure to lodge a ‘Notice of Opposition’ in the usual way, within 28 days of being served with the application in compliance with Rule 16.2 (7) and (8), and to file a ‘Certificate of Service in the Commission in accordance with Rule 16.2 (9).
I note that Mr Vucic’s solicitors acknowledged that they had notice that an appeal had been filed in the Commission. They had received an unsealed copy of the Application on 13 November 2007 (See letter of 19 November 2007). Notwithstanding that the Commission, for some reason did not respond to their inquiry as to whether the Application had been lodged within 28 days of the date of the Arbitrator’s decision (a date that was known to them), their reason for making this inquiry is not obvious. They had already been advised of the date of filing of the appeal, by the Croatian Club’s solicitors.
In any event, Mr Vucic’s solicitors made no further inquiry and took no further action, until their letter of 21 January 2008 to the Commission, with which their submissions on behalf of Mr Vucic were enclosed – still without a ‘Notice of Opposition’ and a ‘Certificate of Service’, as required by Rule 16.2.
If it is accepted, as claimed by the Croatian Club, that they did serve a sealed copy of the Appeal application on Mr Vucic’s Solicitors on 22 November 2007, Mr Vucic’s submissions on appeal were filed out of time (Rule 16.2(7)).
On the other hand, if it is accepted that Mr Vucic’s solicitor’s claim that the Croatian Club’s Appeal Application was not served until 9 January 2008, the submissions in opposition lodged on 23 January 2008 would have been served in time, in compliance with Rule 16.2(7).
Obviously, one of the accounts put forward by the parties’ legal representatives is incorrect.
Finally, as stated above, Mr Vucic’s solicitors have provided nothing by way of explanation to indicate why the Application, if received in their office on 9 January 2008, did not come to the notice of the solicitor having charge of the matter until 17 January 2008.
It would appear that there has been lack of regard for the requirements of the Rules and well-established procedures, in this matter. There are two versions of some of the events leading up to the point of referral of the matter to a Presidential member. I am unable to say which version is correct. All of this is regrettable and unacceptable. However, the interests of fairness and justice in any practical sense would not be served if the Croatian Club and/or Mr Vucic were adversely affected by reason only of these circumstances, over which neither had any personal control. I acknowledge that the concern of the law is always to avoid practical injustice (Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6).
Rule 1.6 (2) provides:
“(2) The Commission may if it thinks fit on terms dispense with compliance with any of these rules, either before or after the occasion for the compliance arises.”
It is intended that Rule 1.6 (2) will be used sparingly and only in appropriate circumstances. However, I consider that in the interests of fairness and justice to the parties in this matter, I am left with little option other than to exercise my discretion under the Rule. Accordingly, I dispense with the requirement of the parties to comply with the Rules, insofar as there has been a failure by the legal representatives of either or both parties, to comply with Rule 16.2.
Leave to appeal is granted.
DETERMINATION OF THE APPEAL
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.”
The Croatian Club submits:
“…in matters of this nature where the claim is a very substantial one and there was a significant amount of material by way of documents it is more satisfactory to have an oral hearing so that each of the parties may deal with the others competing submissions more satisfactorily than by the exchange of submissions in detail. The Appellant/Employer also respectfully submits that where an appeal proceeds by way of review it is most advantageous to the parties to have an oral hearing so that they may indicate to the Presidential Members those aspects of the evidence which support a different conclusion to that which was reached by the Arbitrator.”
As noted above, the Croatian Club filed in the Commission ‘Further submissions and Argument in Support of Appeal’ in which it submitted that it had not received any written submissions on behalf of Mr Vucic and requested an opportunity to respond to Mr Vucic’s submissions in the event that its request for an oral hearing is not acceded to. Mr Vucic makes no submission on the point.
The Croatian Club was provided with a copy of Mr Vucic’s submissions in opposition to the Appeal under cover of his letter of 21 January 2008. It has made no further submissions in response to Mr Vucic’s submissions, notwithstanding the Registrar’s written advice of 21 January 2008. The Registrar routinely issues advice of this nature, in order to keep the parties informed of the progress of the matter in the Commission, and how it will proceed to a determination.
I acknowledge the points made by the Croatian Club with regard to an oral hearing. However, the Croatian Club has provided two sets of submissions and Mr Vucic has provided one set of submissions. While the Croatian Club foreshadowed that it may wish to make a third lot of submissions upon a consideration of those of Mr Vucic, it has not done so. Mr Vucic has briefly, responded to the grounds of appeal, raising no new issues. Both parties have provided their submissions such that the case being put by each may be readily understood. Having regard to Practice Directions Numbers 1 and 6, the nature and substance of the evidence and submissions before the Arbitrator and now before me, the transcript of the arbitral proceedings, the submissions of the parties on appeal and other relevant 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 October 2007, records the Arbitrator’s determination as follows:
“The determination of the Commission in this matter is as follows:
1.Respondent to pay to the Applicant weekly compensation benefits at the rate of $384.00 per week from 1 February 2000 for a period of 26 weeks pursuant to s36 and s42 of the 1987 Act.
2.Thereafter the Respondent to pay the Applicant weekly compensation benefits at the rate prescribed in s37 of the 1987 Act to date and continuing or until reviewed by this Commission.
3.Any weekly benefits already paid to the Applicant by the Respondent during the period 1 February 2000 to date shall be credited to the Respondent against the sums awarded in Orders No 1 and No 2 above.
4.Pursuant to s60 of the 1987 Act the Respondent is to pay the Applicant’s reasonably necessary medical, hospital and related medical expenses attributable to the injuries noted in the MAC of Dr Robert Breit issued on 18 July 2007.
5.Respondent to pay the Applicant lump sum compensation of $14,300.00 in respect of injuries to the Applicant’s right arm, neck, and left leg as follows:
Right Arm at or above the elbow 6% $4800.00
Neck 5% $2000.00
Left leg at or above knee 10% $7500.00
$14,300.00
6.Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues that were in dispute before the Arbitrator are set out in [8] – [10] of his Reasons, and are restated as follows:
1.Was Mr Vucic totally or partially incapacitated for work as a result of his injuries (section 33 of the 1987 Act)?
2.For what period was Mr Vucic partially incapacitated if he was partially incapacitated (section 40 of the 1987 Act)?
3.In respect of any period of partial incapacity for work:
(a) what is the weekly amount which Mr Vucic would probably have been earning but for the injury (sections 40(2)(a), 42, 43);
(b) what is the average weekly amount Mr Vucic is earning or would be able to earn in some suitable employment after the injury (sections 40(2)(b), 40(3), 42, 43, 43A of the 1987 Act), and
(c) did Mr Vucic seek suitable employment during any period of partial incapacity for work? (sections 38, 38A and 52A of the 1987 Act).
4.Whether an award for medical expenses pursuant to section 60 of the 1987 Act can be made in the absence of particulars.
5.Whether Mr Vucic’s claim for pain and suffering pursuant to section 67 of the 1987 Act can be maintained given the findings of the Medical Assessment Certificates.
In its Application, the Croatian Club appeals the Arbitrator’s decision as follows:
“The part of the decision of the Arbitrator awarding the Applicant weekly compensation as follows:
1.Respondent pay the Applicant weekly compensation benefits at the rate of $384.00 per week from 1 February 2000 for a period of 26 weeks pursuant to s36 of the 1987 Act.
2.Thereafter the Respondent to pay the Applicant weekly compensation benefits at the rate prescribed in s37 of the 1987 Act to date and continuing or until reviewed by this Commission.
There is no appeal against the Arbitrator’s decision with regard to lump sum compensation.”
The issues in dispute in this Appeal are found in the grounds of appeal in the Croatian Club’s submissions on appeal, dated 12 November 2007, supplemented by further submissions dated 15 January 2008. The grounds of appeal are:
“1.The Arbitrator erred in law when he found that the injuries on 15 November 1998 and the nature and conditions of the Respondent/Worker’s employment deprived him of the ability to earn a living when there was no evidence to this effect.
2.In the alternative to Ground 1 the Arbitrator erred in fact when he found that the injuries on 15 November 1998 and the nature and conditions of the Respondent/Worker’s employment deprived him of the ability to earn a living when that finding was against the evidence and the weight of the evidence.
3.The Arbitrator erred in law when he found that the Respondent/Worker was effectively totally incapacitated following an ‘integration’ of the Respondent/Worker’s ‘physical deficits’ and his ‘psychiatric condition’ when this was not the issue when [sic] required determination.
4.The Arbitrator erred in law when he failed to take into account the award regarding the prior injury when finding that the Respondent/worker was totally incapacitated.
5. The Arbitrator erred in law when failing to provide adequate reasons.”
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. A review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
In this case, the Croatian Club must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
THE EVIDENCE
The documentary evidence before the Arbitrator and taken into account by him in arriving at his determination is listed at paragraph 19 of his ‘Statement of Reasons for Decision’ (‘Reasons’). That list is not reproduced here but reference is made to the evidence, as necessary and appropriate.
Arbitral hearings took place on 17 September 2007 and 28 September 2007. Mr Vucic did not give evidence and no application to question him was made by the Croatian Club.
Counsel for the parties made submissions on each occasion.
The Arbitrator states at [18] of his Reasons:
“At the conclusion of the Arbitration Hearing [on 17 September 2007] I was not satisfied that the evidence in respect of the issue of liability was conclusive and I exercised my discretion to call a further teleconference (recorded) to purse the issue. Counsel for both parties attended the teleconference on 28 September 2007. Liability for injury ceased to be an issue. The parties were also able to agree as to how the s66 compensation component was to be calculated and I was further advised that the Applicant’s claim for s67 Pain & Suffering had lapsed as the permanent impairment assessments did not satisfy the statutory requirements for an award under s67 of the 1987 Act.”
DISCUSSION AND FINDINGS
The Arbitrator made the following, preliminary observations in recording his findings and reasons for decision:
“22.At paragraph 9 & 10 of his 2005 statement the Applicant described his attempt to undertake some easy casual employment and expressed his dismay at not being able to manage ‘light work’ because of the associated pain, or any work ‘that involved manual handling – even on a part-time basis’.
23.Sadly, this is a case where a young man soon after leaving school suffered a serious injury to his (dominant) right arm on 20 April 1994 whilst using a mincer in a poultry factory. He received compensation in 1998 in respect of an 8% loss of use of the right arm.
24.The Applicant was again injured at work on 15 November 1998 whilst employed by the Respondent resulting in further injury to his right arm and injury to his neck. The percentage of permanent impairment or loss of efficient use was assessed by the AMS, Dr Robert Breit, in the MAC issued on 18 July 2007 as 6% and 5% respectively.
25.Dr Breit also found that the Applicant’s right arm, neck and left leg were injured due to the nature and conditions of the Applicant’s employment from 1/9/1998 to 31/01/2000. The AMS assessed the percentage of permanent impairment or loss of efficient use at 6%, 5% and 10% respectively.”
Did the Arbitrator err in law when he found that the injuries on 15 November 1998 and the nature and conditions of Mr Vucic’s employment deprived him of the ability to earn a living when there was no evidence to this effect?
The Arbitrator found at [31] of his Reasons:
“31.It would thus appear to me that the injuries he suffered on 15 November 1998 and as a result of the nature and condition [sic] of his employment have currently deprived him of the ability to earn a living (despite his motivation to work) as a result of the pain that is encountered even when the Applicant is engaged in casual ‘light work’.”
At [33] the Arbitrator found:
“33.Consequently, I have come to the conclusion on the whole of the evidence before me that the Applicant is currently totally incapacitated for the purposes of employment.”
However, the Arbitrator stated that the conclusion and finding at [33] of his Reasons were reached on the basis of his consideration of the “whole” of evidence, which included a consideration of Mr Vucic’s “psychiatric condition”. Before stating his conclusion at [33], the Arbitrator stated at [32]:
“32.When his physical deficits are integrated with the effects of his psychiatric condition I would have every reason to believe on the evidence before me that the Applicant would be currently incapable of sustaining a position in paid employment.”
The Croatian Club submits that the Arbitrator’s finding at [31] is an error of law as there is no evidence that the “injuries sustained on 15 November 1998, as a result of the nature and conditions of employment, deprived Mr Vucic of his ability to earn a living.”
It submits that in Mr Vucic’s statement of 3 November 2004, he said, “my injuries have significantly reduced my capacity to participate in normal…employment activities. All of these details are contained in the medical reports served on behalf of my claim.” The Croatian Club goes on to submit that in his statement of 10 June 2005 Mr Vucic refers to his post-injury work activities at paragraph 9 but does not say that he is totally incapacitated as a result of his injury with the Croatian Club. It submits at [14] of is first submissions on appeal,
“At paragraph 11 the Worker states that he believes that he could not manage any work involving manual handling even on a part-time basis but this is clearly a belief which is related to the injury in April 1994 and the injuries sustained with the Appellant/Employer. At no time does the Respondent/Worker give evidence that he is totally incapacitated purely as a result of the injuries sustained with the Appellant/Employer.”
The Croatian Club reinforces this submission at [4] of its second submissions on appeal, stating that at no stage did Mr Vucic submit that he was totally incapacitated solely as a result of the injuries sustained whilst employed by the Croatian Club.
The Croatian Club concedes that Mr Vucic is “severely incapacitated in the economic sense as a result of his psychological condition.” It also points out that it is significant that Mr Vucic relates his nightmares about 3 or 4 times per week to his accident with the prior employer, Baiada in April 1994.
In his submissions on appeal, Mr Vucic says:
“2.It was submitted on behalf of the worker at the arbitration that he was totally incapacitated for work. See the transcript of 17 September 2007 at page 17 from lines 38 to 44.
[The reference here is to the following exchange in the transcript of proceedings before the Arbitrator:
“ARBITRATOR: I’m just going over the weeklies. Is the applicant totally incapacitated?
MR BATTEN: No. We say no.
MR CARNEY: Well, that – I think the respondent says no. We say, in effect, he is.”
The transcript goes on to record at lines 45 to 57:
“ARBITRATOR: Right.
MR CARNEY: I think Dr Bookallil, if you look at him, says – agrees that he’s not going to get another job, but he says it’s for a number of reasons, including the psychiatric issue.
MR BATTEN: I say he’s not totally incapacitated as a result of this injury. I’m not saying that as a result of --
MR CARNEY: Other conditions.”
Mr Vucic states at [3] of his submissions on appeal that on the evidence it was open to the Arbitrator to conclude that the worker was totally incapacitated for work on the open labour market reasonably available to him having regard to practical realities and the worker’s particular circumstances. At [6] he says that he retained a residual capacity to earn when he entered into employment with the Croatian Club, but this has been negated by reason of the injuries sustained by working for it. He submits, “That employer should be liable to pay the worker weekly compensation on the basis of total incapacity (apart from limiting the first 26 weeks of payments to 90% of probable weekly earnings.”)
At [11] of his submissions on appeal, Mr Vucic states:
“Ultimately, the decision of the Arbitrator was correct. He decided the nature of the worker’s economic incapacity (total) as a result of the injury sustained while working for the appellant/employer. The Arbitrator was not required to analyse the worker’s previous s40 award against the previous employer and it would be wrong to make a deduction in respect of it as suggested by the appellant.”
It is true, as submitted by the Croatian Club that Mr Vucic makes no specific mention of total incapacity in his statement of 3 November 2004. The statement refers to “my injuries and any sequela resulting from my injuries sustained during the course of my employment with the Respondent [the Croatian Club].” He does claim that by reason of the injuries sustained, he has been left permanently disabled.
Similarly, he makes no claim of total incapacity in his statement of 10 June 2005. He states that his only qualification is “Grade 3 Bar Attendant”. He states that he could not manage any work that involved manual handling, even on a part time basis.
In their response to the Croatian Club’s solicitors, Mr Vucic’s solicitors state in their letter of 9 May 2005, “25. Whether the Applicant is regarded as being totally or partially incapacitated is a matter for judgment.”
The Arbitrator made reference to the medical evidence that was before him. The Croatian Club refers to this evidence in its submissions on appeal. Mr Vucic makes no specific reference to the medical evidence in his submissions on appeal.
Dr Henry Stenning, a Practitioner in Musculoskeletal Medicine, examined Mr Vucic at the request of his legal representatives, on 14 September 2004. Dr Stenning concluded that by definition, Mr Vucic has a permanent injury. He said:
“His symptoms have developed over a period of time. It is noted that your client is a schizophrenic and also has problems in other areas regarding anxiety and he has diabetes. He certainly has significant problems.
In terms of retraining this will have to be of a sheltered workshop type and he will need to be careful of psychotic episodes. He does have problems with the right arm and hand.
Your client will need to attend a psychiatrist on a regular basis and I presume that this will be done through the public system. … He may need further investigations performed on the right shoulder.
Opinion
From the information at hand, the substantial contributing factor has been your clients occupation and the incidents he suffered on the 20 April 1994 and the other on the 15 November 1998.”
The Croatian Club submits that in his report of 14 September 2004, Dr Stenning does not differentiate between the economic incapacity (if any), which flows from Mr Vucic’s injury with it and the injury with his previous employer. It further submits that Dr Stenning’s reference to “sheltered workshop” training “is clearly related to the Worker’s psychological condition.” Apart from alluding to the fact that Mr Vucic may need further investigations on his right shoulder, the Croatian Club says that there is no reference made by Dr Stenning as to economic incapacity with regard to the injuries sustained while in its employ. Dr Stenning states that the “total body Whole Body Permanent Impairment is assessed at 10% whole person impairment.”
Mr Vucic was referred by his legal representatives to Dr Elias Matalani, Consultant Occupational Physician. On 3 December 2004 Dr Metalani opined that Mr Vucic’s employment with both Baiada, his former employer, and with the Croatian Club has been a substantial contributing factor in the development of his right hand and arm injury. Furthermore, he states that his employment with the Croatian Club has been a substantial contributing factor to the aggravation of his right arm injury and development of his neck and leg pain. He goes on to say, “His injuries have stabilised and he reached maximal medical improvement.” Dr Matalini further states that Mr Vucic was unfit for his pre-injury work, but says that he is fit for suitable duties subject to a number of restrictions.
The Croatian Club submits that Mr Matalini “does not state the extent to which the economic capacity relates to the injuries with the Appellant/Employer or Baiada.”
The Arbitrator observed, as does the Croatian Club, that Mr Vucic was examined by Dr Robert Gertler, Consultant Psychiatrist, qualified by the Croatian Club, who expressed the view in his report of 26 October 2006, that Mr Vucic suffers from chronic paranoid schizophrenia and is unfit for any employment for this reason. He further opined that the prognosis with regard to this condition “is poor”.
Mr Vucic was referred by the Croatian Club to Dr Anthony Bookallil, Consultant Neurosurgeon, for the purposes of a medico-legal examination. In his report of 11 October 2006, Dr Bookallil sets out in some detail, the history given to him by Mr Vucic. In his summary, he states,
“Mr Vucic has fairly non-specific history of pain in the right shoulder, neck and left knee which he puts down to his work with the King Tomislav Croatian Club.
The symptoms are non-specific and subjective and unfortunately no investigations have ever been performed.
I have great difficulty making any diagnosis apart from stating that there may be soft tissue injury to the right forearm.
Symptoms in the right forearm that are probably related to the crush injury of 1994. [sic] Because I cannot come up with any specific diagnosis, it will be extremely difficulty [sic] to make any assessment of impairment.”
Dr Bookallil states that he reached his diagnosis “such as it is” from the history given to him and from the examination. However, he indicates that the cause of Mr Vucic’s current condition is both the pre-existing symptoms from the crush injury of 1994 and the incident of 1998. He goes on to say that he does not believe that Mr Vucic could work in any capacity. He states that he could not work in his pre-injury duties and is currently not fit for work. He says, “I doubt that he will ever be fit in the future. His major problems are related to the psychiatric problem, to his depression and to the fact that he has right arm symptoms.”
He states, “I really cannot see him working in any capacity. The reasons why he cannot work are because of his ongoing symptomatology and the drugs that he takes.” He states that he does not believe that Mr Vucic will ever recover. He opines, “Aggravation of a pre-existing condition is not an issue apart from the fact that his ongoing symptomatology is largely related to his 1994 incident.”
The Arbitrator reviewed all of this medical evidence, as set out in his Reasons. He also made some comments about the findings of the Approved Medical Specialist (see paragraph 62, above).
I note that Mr Vucic claims, in his statement of 10 June 2006, that he kept working at the Croatia Club after sustaining his injury on 15 November 1998. He says that he began to experience problems with his left knee and left hip while performing his work duties. He states that he kept working and tried to ignore the pain. He says that he had mentioned it in passing to work colleagues, but made no formal report at that time. Since ceasing his employment at the Croatian Club, Mr Vucic says that he worked for four days at his brother’s business, AV Concreting. He was engaged in light duties, which included driving a utility. He says that the utility did not have power steering. This caused him some pain while operating the vehicle, and his left knee also become painful when he tried to “tread on the moulding stamp on wet cement”. He states that he was unable to continue this work.
Mr Vucic states that he takes a considerable amount of medication to control his mental condition. This causes him to become very tired, and he expresses the belief that he could not manage a full-time job. He still suffers nightmares, alluded to in the Croatian Club’s submissions on appeal, following his accident with Baiada, although they are becoming less intense now. The ‘Post Injury Employment Details’ dated 27 October 2004 record that Mr Vucic worked as a metal sheet worker with Marko Welding for approximately one month between 1996 and 1997, at Metal Air Conditioning for one hour (no date given), and at AV Concreting for 4 days on light duties between 2004 and 2005.
By way of further background, Mr Vucic states that he was hospitalised twice, following his “case” against Baiada because he had attempted take his own life. He was also admitted to Liverpool Hospital’s Psychiatric ward on several occasions. He states that he was unhappy with the way in which his claim against Baiada had proceeded and he had changed his legal representatives twice. Mr Vucic says that he has been living independently for the past two years and has been managing his own affairs. Previously, he was undergoing rehabilitation with Liverpool Residential Support Services.
From a review of the totality of Mr Vucic’s medical history it is clear, using Dr Stenning’s language, “He certainly has significant problems.” As the Arbitrator observes at [28], the clinical notes recorded by Dr Romeo, Mr Vucic’s treating doctor, and those of Westmead Hospital, “show the range of medical problems that the Applicant has had to address since 1996 and the instances where the Applicant has raised the issue of pain from his injuries.” The Arbitrator went on to say:
“29.There was no evidence before me at the Arbitration Hearing that a Vocational Assessment had been undertaken, nor could I see in the papers any indication that a rehabilitation plan was currently in place to assist the Applicant to return to the workforce.
30.I note that he was diagnosed with schizophrenia in 1997 but was able to maintain two to three days of work as a barman with the Respondent employer from September 1998 until January 2000. During this period he used a range of prescribed medications to control and manage his psychiatric condition and it appears was well motivated to work.”
Liability is not disputed but in any event, there is sufficient evidence, including medical opinion, that employment with the Croatian Club on 15 November 1998 was a substantial contributing factor to the injury sustained by Mr Vucic.
It is also established that Mr Vucic had a residual capacity for work when he was employed by the Croatian Club, notwithstanding his earlier injuries and/or his general physical and mental disabilities. The Arbitrator’s view of Mr Vucic was, “it appears, [he] was well motivated to work”, is reasonable, based on the evidence before him.
The Croatian Club claims that Dr Stenning’s reference to retraining of a “sheltered workshop type “is clearly related to the Worker’s psychological condition”. This would appear to be his principal focus, but Dr Stenning also included a reference to Mr Vucic’s problems with his right arm and hand, in the context of that part of his report.
Mr Vucic’s evidence is that he has been able to find much suitable work at all since leaving the employ of the Croatian Club, from where he resigned because he was unable to carry out his pre-injury duties. His inability to perform his pre-injury duties is supported by the medical evidence. However, he falls short of claiming in his statement and evidence that he is unable to carry out any duties.
Dr Bookallil attributes Mr Vucic’s “current condition” to both the pre-existing symptoms from his injury with Baiada, and “the incident of 1998”. He says that he believes that Mr Vucic cannot work in any capacity. He attributes this both to Mr Vucic’s psychiatric problem as well as his depression and right arm symptoms. He says relevantly, “I really cannot see him working in any capacity. The reasons why he cannot work are because of his ongoing symptomatology and the drugs that he takes.” He doubts that Mr Vucic will ever recover, but relates his ongoing symptomatology largely to the 1994 incident.
Dr Matalani opines that Mr Vucic’s injuries have stabilised and that he has reached maximal medical improvement. He states that Mr Vucic is unfit for his pre-injury work as a bar man, but says that he is fit for suitable duties, subject to a number of restrictions, being,
·Repetitive bending of the neck
·Work requiring sustained flexion or extension of the neck
·Pushing and pulling heavy weights
·Prolonged walking and prolonged standing
·Walking on uneven ground
·Repetitive or heavy use of his arms and hands
·Work requiring a strong handgrip or a high level of manual dexterity
·Static loading on his right hand
Dr Gertler opines that Mr Vucic’s chronic paranoid schizophrenia is constitutional and would have had no bearing on his subsequent physical injury. However, he states that he is unfit for any employment because of this condition.
The medical reports of the AMS Dr Breit dated 18 July 2007 and Dr Michael Lowy, Sexual Health Physician qualified by Mr Vucic, dated 15 December 2004 reveal a range of physical injuries and problems, and a generally poor medical state.
Clearly, a substantial proportion of Mr Vucic’s physical problems (and his psychiatric condition) cannot be attributed to the injury that he sustained on 15 November 1998. However, there is at least some evidence that the injury sustained by reason of the work he was doing, finally “deprived him of the ability to earn a living”, given that he was able to perform his pre-injury duties before 15 November 1998, but subsequently ceased his employment as he was physically unable to continue to perform his pre-injury duties. The Arbitrator also took into account that Mr Vucic had been somewhat unsuccessful in performing other work (for his brother) that he attempted, after he left the Croatian Club. Mr Vucic purports to be attempting to find suitable employment, but apparently without success.
While Mr Vucic brought an element of capacity to his employment with the Croatian Club, the Arbitrator considered that this element has been extinguished by reason of the injuries sustained in that employment.
Mr Vucic’s general intellectual level is in the average range, according to Dr Gertler and apart from his training as a bar person, he apparently has no particular skills, education or training.
Mr Vucic’s psychiatric issues are constitutional, and understandably, have been the subject of much comment in the various medical reports. This condition is additional to the matter of incapacity by reason of the physical work-related injury under consideration.
I find that there is some evidence available and upon which the Arbitrator could rely, to make a determination. Accordingly, the Arbitrator has made no error of law, as asserted by the Croatian Club.
In the alternative, did the Arbitrator err in fact in finding that the injuries of 15 November 1998 and the nature and conditions of Mr Vucic’s employment deprived him of the ability to earn a living when that finding was against the evidence and the weight of the evidence?
The evidence and weight of the evidence in support of this finding by the Arbitrator is not entirely persuasive. It is evident that Mr Vucic has physical problems that have developed over a period of time. Some of it is work related and some is not. His psychiatric problems are constitutional, and are not work related.
I note that the Croatian Club submits that there is no evidence that Mr Vucic left its employ because of his injuries. However, as recounted at [85] above, Mr Vucic attempted to continue to work for a period of time after sustaining the injury and tried to ignore the pain. He left and attempted to undertake some work elsewhere. He says he was unable to continue with the employment with his brother because the duties caused him pain. In his solicitor’s letter to the Croatian Club’s solicitors, dated 9 May 2005, it is stated that Mr Vucic had been looking for suitable work, that he has attempted several jobs, and is looking to secure work of a clerical nature. It is reasonable to conclude in the light of the evidence, that Mr Vucic left his employment with the Croatian Club because he was unable to perform his pre-injury duties. The medical evidence lends support to this proposition.
Obviously, Mr Vucic’s psychiatric condition has not assisted him to cope, but it is not raised as an issue in relation to the injury sustained on 15 November 1998.
While Mr Vucic’s legal representative did submit to the Arbitrator that total incapacity was claimed, his solicitors stated in its letter of 9 May 2005, referred to at [103] above,
“23.The Applicant is fit for suitable duties provided that there are restrictions with regard to repetitive bending of the neck, work requiring sustained flexion or extension of the neck, pushing and pulling heavy weights, prolonged walking and prolonged standing, require a strong hand grip or a high level of manual dexterity and work involving static loading on the right hand. At the time the Applicant provided initial instructions he had not worked since 30 January 2000.”
I further note that in Marijan Filip Vucic v Baiada Select Poultry Pty Limited Matter No. 8291/97, 9 February 1998 (unreported), cited by the parties in this Appeal before me, His Honour Judge Walker of the former Compensation Court at p. 20, made the following observation about Mr Vucic:
“Given his disability his labour market clearly cannot involve heavy lifting or repetitive work. His education is not extensive but he is a good communicator, bright and on his own evidence has demonstrated an aptitude for clerical work.
I therefore find that the labour market he can access is either light sales assistant work or clerical work.”
While this case was decided prior to the incident at the Croatian Club, His Honour’s comments are consistent with more recent observations of Mr Vucic’s solicitors who also speak of his aptitude and interest in work of a clerical nature.
I accept that the question of incapacity is a matter for the Arbitrator, based upon the evidence before him. However, the medical evidence substantially supports the conclusion that Mr Vucic’s incapacity, if it is total incapacity, is a consequence of his physical injury sustained on 15 November 1998, and of his earlier work-related injury with Baiada, together with his psychiatric condition, which is not work-related. The Arbitrator essentially acknowledges this in his finding at [32] of his Reasons. This is inconsistent with his finding at [31] where he attributes Mr Vucic’s inability to work to “the injuries he suffered on 15 November 1998 and as a result of the nature and conditions of his employment”, in terms of total incapacity.
The medical evidence supports the proposition that Mr Vucic was unable to return to his pre-injury duties with the Croatian Club, but it does not support the proposition that it was his employment with the Croatian Club alone that deprived him of the ability to “earn a living”, because he was totally incapacitated. Mr Vucic did in fact undertake work of a light physical nature for at least one brief period after he left the Croatian Club, but having regard to the physical duties required of him and the pain suffered, he says that he was unable to sustain that employment.
However, there has been little if any consideration of the actual extent and nature of the labour market in which Mr Vucic “might reasonably be expected to work” (Arnott’s Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 177 (‘Yacob’)), in addition to and as distinct from, the labour market in which he was actually engaged prior to the injury.
Accordingly, I find that the Arbitrator erred in his finding that the injuries sustained by Mr Vucic on 15 November 1998 and the nature and conditions of his employment deprived him of the ability to earn a living, as that finding was against the evidence and the weight of the evidence.
This ground of appeal is made out.
Did the Arbitrator err in law when he found that Mr Vucic was effectively totally incapacitated following an “integration” of his “physical deficits” and his “psychiatric condition”, when this was not the issue which required determination?
The Croatian Club submits that at no stage did Mr Vucic submit that there should be an integration of the potentially incapacitating conditions from which he suffered, and that as a result, he was entitled to weekly compensation on the basis of total incapacity. At [4] of its second submissions on appeal, the Croatian Club says, “The Appellant/Employer respectfully submits that the Arbitrator may have misunderstood the effect of the Respondent/Worker’s submissions.”
In its first submissions on appeal, the Croatian Club submits that the purported integration of Mr Vucic’s non work related psychiatric condition with the injury sustained whilst employed by it was an error of law because the Arbitrator was required to determine the economic incapacity, if any, which flowed from the injuries sustained while so employed. The Arbitrator specifically stated this requirement at [8] of his Reasons, at “bullet point 1”.
The Croatian Club submits that the “physical deficits” referred to in [32] of the Arbitrator’s Reasons include the continuing after effects of the injury sustained with Baiada. It submits, “The Arbitrator has therefore combined three potentially incapacitating conditions and come to the conclusion that as a result of that integration, Mr Vucic is totally incapacitated.
Apart from asserting that the Arbitrator correctly found that Mr Vucic was totally incapacitated for work, Mr Vucic’s submissions do not address this ground of appeal.
Section 33 of the 1987 Act provides:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
The compensable injury must impact adversely upon a worker’s capacity to earn in the open labour market (see Metropolitan Coal Company Limited v Duffy [1996] 67 SR (NSW)163).
Incapacity is not limited to incapacity for pre-injury employment, but extends to incapacity on the open labour market reasonably accessible to a worker prior to the injury (Bruce v Grocan Ltd (1995) 11 NSWCCR 247 at 253).
In Mills Workers Compensation New South Wales (Lexis Nexis Butterworhts: Chatswood), 2002 at page 2857, the following is noted:
“A classic test of ‘incapacity’ is contained in Ball v William Hunt & Sons Ltd [1912] 5 BWCC 459 at 462, where Lord Loreburn says:
‘In the ordinary and popular meaning that we are to attach to the language of this statute, I think there is incapacity for work when a man [sic] has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch.’
This test was approved in Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 at 129 per Latham CJ (‘Ward’) and in Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 at 440 per Latham CJ and at 449 per Dixon J.”
In Commonwealth v Murature (1995) 141 CLR 296 at 300-301, Jacobs J, said:
“It has always been recognised that ‘incapacity for work’, those words being taken to refer to physical incapacity, is only relevant where it produces an economic incapacity.”
However, a finding of total incapacity may be made in certain cases even though a worker may be able to undertake some tasks (Moran Health Care Services v Woods (CA No. 40195/96, 18 April 1997, unreported, BC9703064 (‘Moran’)). This principle is also relevant to a worker who becomes disabled as a result of the injury sustained (Ward; Watkins v Renata (1985) 61 ALR 153).
In Moran, Mason P held that there will be cases in which, while the worker is able to perform some limited tasks, a finding of total incapacity will be sustainable.
Similarly, in Lawarra Nominees Pty Ltd v Wilson No. 40448/95, 29 November 1996, unreported, B9605706, Mahoney P referred to the decision in Yacob where it was held that incapacity for work upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work. Mahoney P went on to say that in determining the issue of partial or total incapacity, consideration is given to the relevant labour market and the work that the employee is reasonably expected and physically able to do. With regard to the work that the worker is physically able to do, a practical approach is taken with regard to the realities of the labour market in which he or she may be employed.
The Arbitrator quotes extensively from the MAC issued by Dr Breit on 18 July 2007 to illustrate Mr Vucic’s medical condition. Having regard to this and the balance of the medical evidence, he came to the view that “the Applicant is currently totally incapacitated for the purposes of employment.”
However, he has not advanced adequate reasons for arriving at a finding of total incapacity as a result of injury sustained while Mr Vucic was in the employ of the Croatian Club, or on the basis (to which possibly, he may have been alluding – but this is not clear), that total incapacity may be found in particular circumstances, notwithstanding that there may be some tasks that the worker is able to undertake in the labour market, whatever that might be in Mr Vucic’s case, in which he was engaged or might reasonably be expected to work. (See again [109] above).
The Arbitrator has erred at law in not adequately articulating his reasons for decision, as required by Rule 15.6 of the Rules. See also Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Mayne Group Limited v Mikhail [2006] NSWWCCPD 249; Mifsud v Campbell (1991) 21 NSWLR 725; Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134; Hume v Walton [2005] NSWCA 148; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [64], per Kirby J).
For this reason, this ground of appeal is made out.
Did the Arbitrator err in law when he failed to take into account the award regarding the prior injury when finding that Mr Vucic was totally incapacitated?
Given the discussion and findings in these Reasons, the fact that the issue of incapacity is not settled, and the course that I propose to take, I will not proceed to deal with this ground of appeal.
Did the Arbitrator err in law when failing to provide adequate reasons for his decision?
This ground of appeal has been made out, as found in [125]-[126] above.
Conclusion
Mr Vucic has been embroiled in workers compensation proceedings of some kind for some years, and it is regrettable that this particular matter could not be finalised at this appeal. However, the legal representatives of both parties need to further assist the Commission in achieving a determination of the matter, as soon as practicable.
I propose to revoke in part, the decision of the Arbitrator and remit the matter to him as to those issues, for determination afresh, in accordance with these Reasons. In this regard, it will be necessary for the Arbitrator to provide the parties with the opportunity to make further relevant submissions, and perhaps to provide further relevant evidence should they see fit to do so, in relation in particular to: first, the nature and extent of incapacity, and second, the labour market in which Mr Vucic was employed and/or in which he might reasonably be expected to work, having regard to the relevant provisions of the legislation and the relevant authorities.
Having regard to the circumstances surrounding this case, I direct that the matter be given high priority.
DECISION
For the reasons set out in this decision, paragraphs 1, 2 and 3 of the Arbitrator’s determination dated 15 October 2007 are revoked. Paragraphs 4, 5 and 6 are confirmed. The matter is remitted to the Arbitrator concerned for determination afresh, in accordance with these Reasons
COSTS
No order is made as to the costs of this appeal.
OTHER
For the sake of completeness, I note that paragraph 3 of the Arbitrator’s decision was not appealed. However, it cannot stand alone, in the absence of paragraphs 1 and 2 of the Arbitrator’s award, which are the subject of appeal and have been revoked. The subject of paragraph 3 will need to be revisited by the Arbitrator, in his determination of the matter afresh.
Gary Byron
Acting President
18 March 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
16
0