Knudsen v Baradom Holdings Pty Ltd - [2013] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Knudsen v Baradom Holdings Pty Ltd [2013] NSWWCCPD 73
APPELLANT:	Paul Knudsen
RESPONDENT:	Baradom Holdings Pty Ltd
INSURER:	Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:	A1-9661/12
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	1 October 2013
DATE OF APPEAL DECISION:	20 December 2013
SUBJECT MATTER OF DECISION:	Former s 40(2)(a) of the Workers Compensation Act 1987; probable earnings but for injury; application of principles stated in Jones v Dunkel (1959) 101 CLR 298; availability of inference; rejection of uncontradicted evidence; requirement to state basis for rejection
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Taylor & Scott Lawyers
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	1. The order made in Certificate of Determination dated 1 October 2013 is confirmed. 2. No order as to costs of this appeal.

BACKGROUND

This is an appeal against a determination made by Arbitrator Garth Brown in which an award was entered in favour of the respondent employer Baradom Holdings Pty Ltd.
The appellant, Paul Knudsen had been employed by the respondent to perform varied duties including those of a rigger and dogman, commencing in December 1994. It is not in dispute that, on 3 February 1995, Mr Knudsen was injured in the course of that employment. He injured his right leg and right arm.
Fractures to Mr Knudsen’s right tibia and fibula were treated on the day of the accident by Dr Mark Perko, orthopaedic surgeon. That treatment involved open reduction and internal fixation. The tibial nail and screws were surgically removed in October 1995. Mr Knudsen had also suffered a fracture of the coronoid process of the right ulna in the accident, for which no orthopaedic treatment was undertaken. Mr Knudsen returned to work with a different employer in January 1996. He has remained in that employment since that time.
In April 2012 a claim was made by Mr Knudsen against the respondent in respect of continuing weekly compensation from 1 July 1998. That claim was declined by the respondent’s insurer. The claim, brought pursuant to the former s 40 of the Workers Compensation Act 1987 (the 1987 Act), was subsequently amended to one in respect of a closed period between 1 July 1998 and 30 June 2007.
The dispute came before the Arbitrator for conciliation/arbitration on 17 June 2013. The matter proceeded to hearing following which the Arbitrator reserved his decision. A Certificate of Determination was issued on 1 October 2013 which recorded the award noted at [1] above. A Statement of Reasons (Reasons) accompanied that Certificate. No order was made as to costs.

PRELIMINARY MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The parties consent to the matter being heard “on the papers”. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed without holding any conference or formal hearing as is permitted by s 354(6) of the 1998 Act.

THE HEARING BEFORE THE ARBITRATOR

Each party was represented by counsel before the Arbitrator. The hearing was recorded. A transcript (T) has been produced and a copy made available to each party. The documentary evidence was noted by the Arbitrator at T1-2. That material included a schedule of earnings prepared and tendered on behalf of Mr Knudsen. The Arbitrator endorsed that schedule with the date 17 June 2013. No oral evidence was adduced.
The Arbitrator recorded a number of matters that had been agreed between the parties (between T2 and T5). Those matters, which directly concern questions raised on appeal, are described and discussed below.

The evidence

There is a short statement made by Mr Knudsen in evidence dated 17 May 2012. The circumstances of the accident and Mr Knudsen’s subsequent treatment are there described. He stated that his employment with the respondent was terminated on 8 August 1995. In January 1996 he resumed work as a rigger, having secured employment with Summit Rigging and Welding in Canberra. It was stated that, thereafter, he had “ongoing pain in the right ankle” and he noticed that the ankle joint “swelled intermittently”. He further stated that he was “only able to keep going in that work due to assistance [he] received from [his] workmates”.
Mr Knudsen’s evidence was that in 1996 he relocated to Western Australia with the intention of seeking work which was “physically less demanding than the employment [he] had undertaken in New South Wales”. Mr Knudsen proceeded to state that he has had a number of subsequent accidents, two involving motorcycles and one at work. Following those accidents he was able to return to full time employment.
Mr Knudsen described his ongoing “problems” as “a feeling of tightness over the outer aspect of the middle of [his] right leg. [His] right ankle hurts after climbing a lot of stairs at the end of the day”. Mr Knudsen also noticed that his right ankle tends to “give way” if he walks for “extended periods of time”. He continues to have “restricted movement in flexion and extension of the right elbow”.
There are reports from Dr Perko in evidence which summarise matters noted at [3] above. In a report dated 14 March 1996 Dr Perko assessed Mr Knudsen as having five per cent permanent impairment of his right leg below the knee. Dr Perko also stated:
“This man’s injury and the subsequent events are consistent. I would expect that he will be able to resume his pre injury work although he may have some residual aching in the leg as a result of his fracture. He has participated in a return to work programme under the guidance of the CRS. In view of the hazardous nature of his work as a rigger I felt that there may be some concern regarding his injury and that even though any ongoing discomfort is likely to be minor, if retraining for other types of less hazardous work was available then this would be preferable.”
Mr Knudsen tendered a report dated 9 April 2010 from Dr Dibyendu Gope, consultant orthopaedic surgeon, who had been qualified by his solicitors to provide evidence for presentation in these proceedings. Dr Gope noted that Mr Knudsen was employed as a rigger and crane operator by Transfield - Worley. That employment was described by Dr Gope as being “in a restricted and modified capacity”. Dr Gope further stated:
“Mr Knudsen has been working on a full time basis in the mine on a fly-in fly-out basis. His partial incapacity arises mostly from the subject injury, however he has sustained other injuries, particularly in 1997 and 1998 which also are partially responsible for his incapacity.”
There are two reports in evidence by Dr WJ Coyle, orthopaedic surgeon, addressed to the respondent dated 22 February 1995 and 6 July 1995. Dr Coyle, who practised in the ACT, managed Mr Knudsen’s treatment following the initial operative treatment carried out by Dr Perko. The second of those reports includes the statement by Dr Coyle that he:
“would anticipate that [Mr Knudsen] will make a good functional recovery from his moderately severe right lower limb injury in the next few months. A further surgical procedure will, however, be necessary at some stage to remove the metal rod and screws used to fix the fracture.”
Dr Coyle stated that he would provide a short supplementary report concerning Mr Knudsen’s fitness for work when next he reviewed him. There is no later report in evidence from Dr Coyle.
Two reports prepared by Ms Jill Farmbach, rehabilitation counsellor with the Commonwealth Rehabilitation Service, are in evidence. Those reports relate to an initial assessment made in July 1995 and a vocational assessment conducted in the same month. The second of those reports suggest that Mr Knudsen should pursue training to increase his skills in the plant operating area. It was noted by Ms Farmbach that Mr Knudsen had “vast experience and current contacts in the construction industry” and acquisition of further skills would combine with his present qualifications to “increase his employability”.
There are in evidence taxation returns filed by Mr Knudsen dating from the financial year ending 30 June 1995.

Submissions before the Arbitrator

The respondent argued that the calculation of probable earnings, but for injury which appeared in the wages schedule tendered by Mr Knudsen should not be accepted. It was emphasised that the respondent had ceased trading and, further, that since his return to work Mr Knudsen’s weekly earnings demonstrated in the wages schedule establish that such earnings fluctuated from time to time.
Counsel argued that the probable earnings would most reliably be calculated having regard to the publication: “What Jobs Pay” authored by Rodney Stinson. Those weekly figures were, it seems to have been argued, significantly less than the “probable” earnings appearing in the wages schedule.
It was argued that the evidence of Dr Perko established that Mr Knudsen was, soon after his treatment and convalescence, fit for pre-injury duties. The only qualification suggested by Dr Perko was that, perhaps, Mr Knudsen should look for less hazardous work. Attention was drawn to the report of Dr Perko dated 14 March 1996 where it was noted that “there were no complicating neuro-vascular injuries and [Mr Knudsen] had no injury involving either the knee or the ankle joint. Radiographs revealed fractures of the mid shafts of both tibia and fibula”.
Counsel argued that the medical evidence read with the evidence of earnings established that there was no physical incapacity and, in any event, there is no economic loss demonstrated on that evidence.
Counsel for Mr Knudsen drew the Arbitrator’s attention to the accepted fact that Mr Knudsen had been examined, on behalf of the insurer, by Dr Slinger in August 2012 and that the respondent had not tendered any evidence from that practitioner. It was submitted that any evidence from Dr Slinger should be taken as being “of no assistance from the employer’s perspective” (T17). It was emphasised that the only qualified expert medical evidence tendered was that of Dr Gope. It was put that Mr Knudsen should be found to “have an incapacity”. Dr Perko’s views as to seeking less hazardous work were also relied upon in support of a finding of partial incapacity.
Counsel addressed the evidence concerning earnings, noting that the pre-injury weekly earnings had been calculated having regard to earnings over a 12 week period demonstrating a weekly sum of $1566. Probable earnings as found in the wages schedule had been calculated, it was stated by counsel, upon the basis of a one per cent per annum increase of that pre-injury weekly rate. It was argued that the publication “What Jobs Pay” may be utilised by the Commission, but that it is “just another alternative source” of evidence concerning probable earnings when there is little or no evidence concerning comparable [sic, probable] earnings”. It was argued that the wages schedule incorporated a “significantly compromised” annual increase of one per cent and it was pressed as being the appropriate relevant figure “throughout the relevant period”.
In reply, counsel for the respondent argued that the knee and ankle disability noted by Dr Gope are not related to the subject injury and that those conditions give rise to some partial incapacity in that doctor’s view. Dr Coyle’s opinion that he expected Mr Knudsen to make a “good recovery” supports an argument of “no incapacity” resulting from the relevant injury.

The Arbitrator’s decision

The Arbitrator identified the issues in dispute as being whether, as a result of the subject injury, Mr Knudsen had become partially incapacitated and, if so, what was the extent of that incapacity.
Following a summary of the evidence, which included lengthy extracts from the documentary material, the Arbitrator proceeded to consider whether Mr Knudsen had established that the injury had resulted in partial incapacity. Following a consideration of relevant authority, the Arbitrator found that, notwithstanding the impairment assessment concerning the right leg made by Dr Perko in 1996, he was “satisfied the evidence also indicates [Mr Knudsen] overall made a good recovery” (Reasons at [31]). A further finding was made that the Arbitrator was “not satisfied that [Mr Knudsen] suffered a sudden and identifiable pathological change in his right ankle joint on 3 February 1995”.
The Arbitrator noted that there was “a lack of clarity concerning the nature of the work [Mr Knudsen] was engaged in with the respondent prior to injury and to whether it was different to the work performed in Western Australia” (Reasons at [36]). A finding was made that Mr Knudsen’s pre-injury work was that of a “rigger and dogman”. That conclusion was founded upon history recorded by Dr Perko and the Commonwealth Rehabilitation Service. The Arbitrator further found that:
“[Mr Knudsen] during the relevant period 1 July 1998 to 30 June 2007 had been able to return to full time work including as a rigger, crane driver and scaffolder.” (Reasons at [37])
The Arbitrator observed that the evidence before him failed to:
“provide particulars as to the nature of the work or duties [Mr Knudsen] was engaged in with the respondent prior to injury that it is claimed he was unable to perform as a result [of the relevant injury] during the relevant period.” (Reasons at [42])
Following a detailed consideration of the evidence of Dr Gope the Arbitrator concluded:
“In consideration of the available evidence I am not satisfied the injury to [Mr Knudsen’s] right leg resulted in [him] being required to perform duties of a lesser or restricted nature during the relevant period, namely from 1 July 1998 to 30 June 2007.
In view of the foregoing I am not satisfied the pleaded injury resulted in the applicant suffering a reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which he was working or might reasonably be expected to work.” (Reasons at [55] and [56])
The Arbitrator proceeded to address the evidence concerning relevant earnings and made a finding that he was not satisfied that “[Mr Knudsen’s] comparable [sic] earnings in respect of the relevant period exceeded his actual earnings or ability to earn” (Reasons at [57]).
The Arbitrator noted that the respondent had asserted that the figures in Mr Knudsen’s wages schedule were “not a proper reflection of the comparable and probable earnings in respect to the relevant period”. That submission was accepted by the Arbitrator (Reasons at [59]). It was determined that in the circumstances, in particular having regard to the shortcomings in the evidence as to the nature of work, working hours and relevant penalty rates, the appropriate means of determining probable earnings but for injury was by reference to the publication “What Jobs Pay”.
A finding was made that Mr Knudsen’s actual earnings in 1998 were $1155.90 per week, rising to $1541.63 by 30 June 2007 (Reasons at [60]). After reference to the publication “What Jobs Pay” the Arbitrator found that “in respect of the relevant period [Mr Knudsen’s] actual earnings exceed the amount arrived at calculated pursuant to s 40(2)(a) as being representative of [Mr Knudsen’s] probable earnings if uninjured” (Reasons at [64]). The Arbitrator proceeded to enter an award in favour of the respondent in respect of Mr Knudsen’s claim for weekly compensation.

SUBMISSIONS, DISCUSSION & FINDNGS

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The grounds relied upon by the appellant, which appear below, lack clarity and precision. These grounds, as they appear in the Application brought with respect of this appeal, are as follows:
“1.The Arbitrator has made an incorrect calculation for the purposes of Section 41(2) [sic] of the Workers Compensation Act.
2. The Arbitrator has failed to give the necessary weight to the Browne v Dunn [sic] inference.
3. The Arbitrator has failed to give the appropriate weight to the Appellant’s medical evidence and the Appellant’s own statement of evidence.”

Ground 1

It is reasonably clear, having regard to the submission put in support of this ground, that the subsection of the 1987 Act which is relevant to the suggested “incorrect calculation” is the now repealed s 40(2)(a) (not s 41(2) as appears in ground one). It was that provision which had application to the determination of an injured worker’s probable earnings “as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment”.
The appellant is correct to submit that agreement had been reached at the hearing that Mr Knudsen “was earning $1566 per week at the time of injury”. That agreement was recorded by the Arbitrator at T3. The Arbitrator noted that the figure of $1566 per week, pre-injury earnings, “had come from [Mr Knudsen’s] ATO tax returns for 1995. This indicates [Mr Knudsen] was working for a period of 12 weeks over December/February before he was injured”.
It was also recorded by the Arbitrator (at T3) that the respondent disputed “the comparable probable [sic] earnings figure”. That figure represents relevant earnings to be calculated in accordance with the former s 40(2)(a). The Arbitrator summarised preliminary matters raised before him as follows (at T5):
“Okay well that’s what’s been agreed so far then as I understand it the major issues in dispute in relation to this matter as so far as submissions are going to be concerned relate to the comparable probable earnings figure but also before that Mr Grant you indicated there’s issue in relation to injury and incapacity. And but you’ve agreed the actual earnings. And the other side of the submissions I expect are on the basis of you…indicated that there’s also a role for discretion to play in this matter.”
It is, in my view, clear that the exchanges between the Arbitrator and counsel which are recorded in the early portion of the transcript demonstrate the following matters:
(a)     the respondent disputed injury and incapacity;
(b)     Mr Knudsen’s average weekly earnings, whilst employed by the respondent between December 1994 and 3 February 1995, were agreed as being $1566;
(c)     that the respondent disputed the “Comparable/Probable earnings” that appeared in the amended wages schedule dated 17 June 2013;
(d)     that the “actual earnings per week” appearing in that wages schedule were agreed as between the parties, and
(e) that the respondent proposed to argue that any demonstrated difference between probable earnings and actual earnings should be the subject of adjustment in exercise of the Commission’s discretion granted by the terms of the former s 40(1).
It is argued that the Arbitrator erred when determining the disputed issue as to the quantum of Mr Knudsen’s probable earnings by failing to take into account “his actual earnings at the time of the accident”. Further error is suggested in that the Arbitrator relied on “a publication that uses broad figures and fails to take into account a worker’s personal circumstances” (submissions 2.9.1).

Before addressing this argument, it is important to note that Mr Knudsen, in his reliance upon the first ground, has failed to acknowledge the Arbitrator’s findings noted at [29] above.
Those findings constitute a determination that Mr Knudsen failed to establish that he was partially incapacitated at relevant times. That finding had the necessary consequence that Mr Knudsen’s claim in respect of weekly compensation pursuant to the former s 40 failed regardless of the evidence as to relevant earnings.
Notwithstanding that he had reached that conclusion concerning incapacity, the Arbitrator immediately proceeded to consider the question as to whether the evidence as to relevant earnings demonstrated that the “comparable earnings in respect of the relevant period exceeded [Mr Knudsen’s] actual earnings or ability to earn” (Reasons at [57]). It may safely be assumed that the Arbitrator embarked upon this task as a cautionary measure, should he be found to have fallen into error with respect to the fundamental question of the presence of otherwise of partial incapacity.
Mr Knudsen’s complaint is that the Arbitrator has failed to acknowledge the agreement concerning pre-injury earnings. I reject that contention having regard to the matters noted above (at [38]) which were recorded by the Arbitrator at the hearing and his acknowledgement, in the course of his reasons, of the amended schedule which was in evidence before him (Reasons at 14(d)).
It must be kept in mind that the relevance of pre-injury earnings in the context of calculation of entitlement to weekly compensation, as the Acts provided prior to the 2012 amendments, concerns, primarily, determination of current weekly wage rate, if relevant and, in appropriate circumstances, calculation of relevant allowances including overtime which may demonstrate relevant loss when entitlement is being considered.
On the present facts, there were no post-injury wage records available given that the respondent had ceased trading. That fact gave rise to the controversy between the parties as to the proper means of determining probable earnings but for injury (s 40(2)(a)). It is clear that the Arbitrator rejected Mr Knudsen’s argument that such “probable earnings” should be determined having regard to an adjusted weekly rate, i.e. one per cent per annum, based on the pre-injury weekly income as agreed of $1566. The Arbitrator noted the following matters:
(a)     Mr Knudsen “only worked for the respondent for a period of about 2 months before … injury”;
(b)     there was no evidence as to the number of hours worked, or the overtime or penalty rates that may have applied;
(c)     the period of employment was over Christmas and New Year holiday period when it was probable that significant penalty rates “would have applied to hours worked on these days”;
(d)     the respondent “has been in liquidation for many years and Counsel were unable to assist as to when that took place”, and
(e)     “[n]o pay slips or comparable employee earnings evidence was in evidence concerning [relevant earnings].” (Reasons at [59])
The circumstances noted above, it was found by the Arbitrator, demonstrated that there was “inadequate evidence, or a lack of probative evidence” concerning probable earnings. Upon reliance upon the decision of the Commission in Manpower Pty Ltd v Harris [2011] NSWWCCPD 10 the Arbitrator determined that it was proper to make reference to “What Jobs Pay”. That publication was discussed during exchanges with counsel at the hearing.
Had there been a necessity to determine the question of entitlement to weekly compensation, I am of the opinion that the approach adopted by the Arbitrator was appropriate. I am fortified in that view having regard to the evidence as to Mr Knudsen’s earnings as demonstrated by his 1995 tax return in that year up to the date of injury in February 1995. I note, I have not relied on that evidence in reaching my view as to the correctness of the Arbitrator’s approach. Ground one fails.

Grounds 2 and 3

Having regard to the submissions put in relation to each of grounds 2 and 3, it is apparent that Mr Knudsen is challenging the Arbitrator’s factual finding, noted at [29] above, that he has not suffered partial incapacity as a result of the subject injury.
The general thrust of Mr Knudsen’s argument, as advanced in respect of these two grounds, is that the Arbitrator has failed to take account of the expert medical evidence tendered on his behalf and has failed to take account of the absence of Dr Slinger’s evidence when concluding that he did not suffer incapacity.
I have earlier (at [22] above) noted that it was not disputed that Mr Knudsen had been examined on behalf of the respondent by Dr Slinger and that no evidence from that practitioner had been tendered by the respondent. Mr Knudsen submits on this appeal that the Arbitrator has “failed to give the necessary weight to the Browne v Dunn inference”. Browne v Dunn (1893) 6 R 67 (Browne) has been cited by the appellant in error. That authority gave rise to the general rule of practice which concerns the need to put to an opponent’s witness in cross examination the nature of the case upon which it is intended to rely in contradiction of his evidence (see discussion by Hunt J in Allied Pastoral Holdings v Commissioner of Taxation [1983] 1 NSWLR 1 (at [16])). That rule is not apposite to the complaint here made.
It is safe to assume that ground two is founded upon an argument that the decision of Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones) is relevant to the manner in which the Arbitrator has addressed the evidence. I so conclude given the suggestion in submissions that the unexplained failure to rely upon the evidence of Dr Slinger should permit an inference “in [Mr Knudsen’s] favour” (submissions on appeal [2.9.2]). It is clear that the inference that Mr Knudsen suggests should have been drawn, or was disregarded by the Arbitrator, was that the evidence of Dr Slinger would not have assisted the respondent’s case.
It should be noted that the Arbitrator, when considering the absence of evidence from Dr Slinger, fell into the same error as Mr Knudsen (Reasons at [30]) by making reference to the decision in Browne, when plainly the question of the availability of an inference involved a consideration of the decision in Jones.
Notwithstanding the error in identification of relevant authority, it is clear that the inference that may have been drawn in the circumstances was in fact drawn by the Arbitrator. The Arbitrator stated “…it is appropriate to draw the inference that the contents of any resulting report [of Dr Slinger] would not assist the respondent” (Reasons at [30]).
The error suggested is that, whilst the inference was drawn by the Arbitrator, there has been a failure “to give the necessary weight” to that inference. It seems to be argued that the absence of any medical evidence in the respondent’s case is in some way relevant to the evaluation of the “weight” to be given to that inference.
The Arbitrator acknowledged both the absence of the evidence and the argument advanced concerning the availability of an inference and he proceeded to accept such argument. The “weight”, or persuasive value, of such inference was a matter for the Arbitrator to determine. He proceeded to address the balance of the evidence and reached a conclusion unfavourable to Mr Knudsen, notwithstanding that he had drawn that inference. It is appropriate to consider the third ground before reaching any conclusion as to whether the Arbitrator had erred in any relevant manner concerning the inference drawn.
Mr Knudsen’s fundamental argument is that the evidence concerning incapacity “is all one way”. That proposition is put upon the basis that the respondent had not cross examined Mr Knudsen, nor had it tendered any expert medical evidence or other material relevant to the issue of incapacity. In the circumstances, it is put, the Arbitrator “should have found in favour of [Mr Knudsen] and made a finding of partial incapacity for the period claimed” (submissions on appeal [2.9.3]).
Whilst Mr Knudsen has not expressly articulated his complaint as being one concerning rejection of uncontradicted evidence, it is reasonably clear that such is the nature of his complaint. That being so, it appears that the suggested error of the Arbitrator involves alleged rejection of uncontradicted evidence leading to factual error, that is, a mixed question of fact and law. As was stated by Heydon JA (as he then was) in Moukhayber v Camden Timber & Hardware Co Pty Ltd [2002] NSWCA 58 at [30] (Moukhayber):
“… whether uncontradicted evidence should be accepted depends on all the circumstances, including its inherent probability and the possibility of calling evidence in reply.”
The presence of uncontradicted evidence was considered by Marks J in Read v Nerey Nominees Pty Ltd (unreported, Supreme Court of Victoria, Marks J, 19 December 1977, No 7402 of 1976) (Read) at 9 where the following observation was made:
“If the Magistrate was to reject this evidence and if, as it was, in my view, uncontradicted reasonable and inherently probable, then he could do so only for relevant reasons which he was obliged to disclose. See Richards v Jager [1909] VicLawRp 26; [1909] VLR 140 at p. 147; Llewellyn v Reynolds [1952] VicLawRp 24; [1952] VLR 171; Hardy v Gillette [1976] VicRp 36; [1976] VR 392 at pp. 396-7, and the authorities therein cited by Anderson, J.”
The nature of partial incapacity had been considered by the Arbitrator between [18] and [22] of his Reasons. The authorities there cited establish, as noted by the Arbitrator, that a worker, in order to establish partial incapacity, must prove that he has suffered physical incapacity for actually doing work in the labour market in which he works, or may reasonably be expected to work.
The question before the Arbitrator required a determination as to whether the uncontradicted evidence established the fact of partial incapacity. That task required, as stated in Moukhayber, consideration of all the circumstances and, as stated by Marks J in Read, if such evidence is rejected, reasons for so doing must be disclosed.
The relevant evidence was recited by the Arbitrator in the course of giving his reasons and his consideration of that evidence is found between [33] and [56] of his reasons. A non-exhaustive summary of the Arbitrator’s reasoning is as follows:
Mr Knudsen’s Evidence
(a)Complaint is made of right ankle pain and swelling. The ankle was not injured in the subject fall. Dr Perko expressly excludes injury to the right ankle and knee. The Arbitrator made a finding that he was not satisfied “the injury of 3 February 1995 resulted in injury to [Mr Knudsen’s] right ankle or right knee or resulted in a consequential medical condition affecting the right ankle or knee” (Reasons at [51]);
(b)There was “some lack of clarity in determining the nature of the work [Mr Knudsen] was engaged in with the respondent” pre-injury. It was unclear as to whether that was different to the work performed subsequently in Western Australia. The evidence does establish that his pre-injury work was that of a rigger and dogman. Notwithstanding Ms Farmbach’s view, expressed before removal of the pin in Mr Knudsen’s leg, concerning Mr Knudsen’s future employment prospects, the Arbitrator found (at [36]) that “by 1998 and onwards [Mr Knudsen] resumed working full time in Western Australia in employment that included him working as a scaffolder, rigger and crane driver”;
(c)Mr Knudsen’s statement in evidence was found to be “not helpful” concerning the reasons for “limitations” said to be experienced in performance of work tasks (at [41]) and,
(d)Mr Knudsen had omitted to provide evidence “as to the nature of [the pre-injury work] that it is claimed that he was unable to perform” as a result of the subject injury.
Dr Gope’s Evidence
(a)The Arbitrator was “of the view that Dr Gope’s opinions with respect to question of how the pleaded injury to the right leg has resulted in [Mr Knudsen] suffering an incapacity during the relevant period are not very helpful” (at [45]). Dr Gope had taken into account injuries to body parts not relevant on the present facts;
(b)Dr Gope’s evidence “lacks weight” by reason of deficiencies in the history as recorded (Reasons at [47]-[49]), and
(c)Dr Gope “does not explain how the successfully united fracture of the tibia and fibula has resulted in an incapacity for work in respect to the relevant period” (at [50]).
Dr Perko’s Evidence
(a)The latest evidence of Dr Perko was a report issued in 1996;
(b)The fractures healed well. Following the removal of the pin Dr Perko expected Mr Knudsen would be fit to return work in November 1995, and
(c)As earlier noted at [26] above, Mr Knudsen had, in the Arbitrator’s view, made a good recovery notwithstanding Dr Perko’s impairment assessment.
It may be seen from the Arbitrator’s Reasons, some part of which I have attempted to summarise above, that the uncontradicted evidence was found to be wanting with respect to proof of partial incapacity resulting from the subject injury. The circumstances which led the Arbitrator to his conclusion were made clear in the course of his Reasons and, notwithstanding the fact that relevant evidence had not been contradicted, he was not satisfied that partial incapacity had been made out. That was a conclusion open to the Arbitrator on the evidence including that of Dr Perko, whose evidence was that less hazardous work might be preferable for Mr Knudsen (Reasons at [16]). In my opinion no relevant error has been made out and ground three must fail.
Returning to ground two, it is stated by the learned author of Cross on Evidence (8^th edition) LexisNexis Butterworths 2010 that an inference properly drawn upon application of the rule in Jones (at [1215]):
“… entitles the trier of fact to take [the substance of the inference] into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken…”
It has also been observed on occasion that the existence of such inference may permit a trier of fact to act more confidently on the other relevant evidence (cf Dasreef Pty Ltd v Hawchar [2010] NSWCA 154 per Allsop P at [56]).
In the present matter the Arbitrator has found significant shortcomings in Mr Knudsen’s case concerning the question of incapacity. Those shortcomings were of such significance that he determined he was unable to accept that material as capable of proving the issue of partial incapacity. Such assessment of that evidence was made following the drawing by the Arbitrator of the relevant inference. It is thus clear, in my opinion, that the Arbitrator’s finding of fact followed an evaluation of all relevant matters including the presence of the inference. Acceptance by the Arbitrator that Dr Slinger’s evidence would not assist the respondent could not, alone, lead to a conclusion that, on the balance of probability, Mr Knudsen was relevantly incapacitated. No relevant error is made out. Grounds two and three fail.

DECISION

The order made in Certificate of Determination dated 1 October 2013 is confirmed.

COSTS

No order as to costs of this appeal.

Kevin O'Grady
Deputy President

20 December 2013

I, CYNTHIA BENITEZ, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE