Labourforce Solutions Pty Limited; 1st Fleet (Steel) Pty Limited; 1st Fleet Pty Limited v Charles
[2006] NSWWCCPD 173
•2 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Labourforce Solutions Pty Limited; 1st Fleet (Steel) Pty Limited; 1st Fleet Pty Limited v Charles [2006] NSWWCCPD 173
APPELLANTS: Labourforce Solutions Pty Limited; 1st Fleet (Steel) Pty Limited; 1st Fleet Pty Limited
RESPONDENT: Edward Charles
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC4945-05
DATE OF ARBITRATOR’S DECISION: 8 August 2005
DATE OF APPEAL DECISION: 2 August 2006
SUBJECT MATTER OF DECISION: Weekly benefits compensation for partial incapacity; section 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the Papers
REPRESENTATION: Appellants: Edwards Michael Moroney,
Lawyers
Respondent: P K Simpson & Co, Solicitors
ORDERS MADE ON APPEAL: 1. Order 1 of the decision of the Arbitrator, dated 8 August 2005, is revoked and the following decision is made in its place:
1.The Respondents pay the Applicant weekly compensation, pursuant to section 40 of the Workers Compensation Act 1987, at the statutory rate for a person with a dependent spouse and one dependent child, from 1 December 2004 and continuing.
2. No order as to costs.
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 September 2005 Labourforce Solutions Pty Limited, 1st Fleet (Steel) Pty Limited and 1st Fleet Pty Limited (‘the Appellants’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 August 2005.
The Respondent to the Appeal is Edward Charles (‘the Worker’). Mr Charles worked for the Appellants from 1995 to 2002, initially as a driver. He claims to have suffered a number of injuries when in the employ of each Appellant, which affected his capacity for work. He claimed his continuing incapacity to work was as a result of injuries to his back and right arm. Following the injuries Mr Charles worked in light duties from time to time and underwent re-training at his workplace. He worked in a general office and sales role until he was terminated from his employment in December 2004. He now claims weekly benefits compensation from 1 December 2004 and continuing.
The relevant workers compensation insurer is GIO Workers Compensation (NSW) Limited. It was legally represented in the Commission proceedings and acted for and on behalf of the Appellants in the appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 8 August 2005 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.The Respondents [Labourforce Solutions Pty Limited; 1st Fleet (Steel) Pty Limited and 1st Fleet Pty Limited] pay the Applicant [Mr Charles] weekly compensation at the rate of $1243 per week from 1 December 2004 to date.
Thereafter at the statutory rate pursuant to section 38 of the 1987 Act.
2.The Respondents are to be given credit for any payments for any weekly compensation made in the above period.
3.Applicant’s claim for medical expenses is dismissed.
4.The Respondent pay the Applicant’s costs as agreed or assessed.”
Mr Charles did not file a ‘Notice of Opposition to the Appeal’, rule 77(5) of the Workers Compensation Commission Rules 2003 and a ‘Direction’ issued on 9 September 2005 (the ‘Notice of Opposition to the Appeal’ to be filed by 26 September 2005). Commission staff also contacted Mr Charles’ legal representative, on 18 July 2006, to advise that the appeal was proceeding ‘on the papers’. Despite advice that a document was being prepared, nothing has been received in response to the appeal as at the date of this decision.
ISSUES IN DISPUTE
The fact that Mr Charles suffered an ‘injury’ at work with the Appellants was not in issue before the Arbitrator, having been agreed between the parties.
The issues in dispute in the appeal are set out in the ‘Application for Leave to Appeal’ as follows:
“The Appellant submits that the Arbitrator erred in five respects:
i)In awarding compensation in excess of the amount prescribed by the Act;
ii)In awarding compensation pursuant to Section 38;
iii)In finding that the worker’s ability to earn pursuant to Section 40 was nil as a matter of law;
iv)In finding that the worker’s ability to earn in suitable employment was nil where such finding was against the evidence and the weight of evidence;
v)In failing to give any or any sufficient reasons as to the Respondent’s ability to earn in the open labour market reasonably accessible to him and in failing to properly determine that issue.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) 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 Appellants submit that the appeal can be decided ‘on the papers’. The Worker has made no submission on this, or any other issue.
I have before me all of the evidence and submissions that were before the Arbitrator and the submissions on appeal. The Appellants do not rely upon fresh evidence in the appeal. I also have before me the transcript of the arbitration proceedings held on 1 August 2005.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellants that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)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.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is greater than $5000 and more than 20% of the amount awarded in the decision appealed against.
Leave to appeal is granted.
CONSIDERATION OF THE ISSUES
Did the Arbitrator err in awarding compensation in excess of the amount prescribed by the Act?
The Appellants submit that Mr Charles was entitled to an award at only the statutory rate as he had been in receipt of weekly benefits compensation since March 2001, for a period that has exceeded 26 weeks. It submits that:
“Thus, the most that could be awarded under Section 40 (or, for that matter Section 37) from 1 December, 2004 is the statutory rate as adjusted for a worker with a dependent wife and one dependent child.”
The Appellants’ submission on this issue is clearly correct. Mr Charles has been in receipt of weekly compensation, for periods of both total and partial incapacity from March 2001. The Arbitrator found that:
“All of the Applicant’s medical evidence, including the above examples, satisfy me that he sustained original injury to his back and right arm during his employment with the First Respondent, and had those injuries aggravated (sic) causing partial incapacity during employment with both the Second and Third Respondents, as alleged.
I find that each Respondent should contribute equally to that liability.”
The Arbitrator does not state the relevance of this finding in terms of the application of the Workers Compensation Act 1987 (‘the 1987 Act’). However it is clear from the facts and the relevant findings that section 40 of the 1987 Act is applicable. The Arbitrator later refers to section 40 and to the parties’ calculation of Mr Charles’ entitlement pursuant to that section. Section 40 provides as follows:
40 Weekly payments during partial incapacity-general
(1) Entitlement
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
(2) Calculation of reduction in earnings of worker-general
The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:
(a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and
(b) the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000).
(2A) Calculation of reduction in earnings of worker—workers rejecting suitable employment
If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:
(a) the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and
(b) the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).
(2B) For the purposes of subsection (2A), a worker unreasonably rejects suitable employment if:
(a) a period of 28 days has elapsed since the worker was offered suitable employment by any person and the worker has unreasonably refused or not accepted the offer (whether or not the offer was available during the whole of that period), or
(b) the worker obtains suitable employment with any person but subsequently unreasonably discontinues that employment.
(3) Ability to earn in suitable employment
The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:
(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker,
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.
(4) Rehabilitation—unemployed (or not fully employed) workers
An injured worker who duly undertakes rehabilitation training under section 38 is not to be disadvantaged under this section by any increase in the amount that the worker would be able to earn merely because of that training, unless the worker unreasonably refuses an offer of suitable employment for which the worker has been trained. The Commission may determine any dispute about the operation of this subsection.
(5) Maximum rate of compensation
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.
(6) Adjustment of compensation—indexation
If it appears proper in the circumstances of the case, the weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work may (subject to subsection (5)) be adjusted to take account of any adjustment because of the operation of Division 6 in the weekly payment that would be payable to the worker if it were a period of total incapacity for work.
(7) Adjustment of maximum amounts—application
If an amount mentioned in subsection (2):
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of partial incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted. Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted.
(8) Exemption
This section does not apply to any period of partial incapacity for work during which the worker is compensated under this Act as if the worker’s incapacity for work were total.
‘Suitable employment’ is defined in section 43A of the 1987 Act as follows:
43A Suitable employment
(1) For the purposes of sections 38, 38A and 40:
suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:
(a) the nature of the worker’s incapacity and pre-injury employment,
(b) the worker’s age, education, skills and work experience,
(c) the worker’s place of residence,
(d) the details given in the medical certificate supplied by the worker,
(e) the provisions of any injury management plan for the worker,
(f) any suitable employment for which the worker has received rehabilitation training,
(g) the length of time the worker has been seeking suitable employment,
(h) any other relevant circumstances.
(2) In the case of employment provided by the worker’s employer, suitable employment includes:
(a) employment in respect of which:
(i) the number of hours each day or week that the worker performs work, or
(ii) the range of duties the worker performs,
is suitably increased in stages (in accordance with a rehabilitation plan or return-to-work plan or otherwise), and
(b) if the employer does not provide employment involving the performance of work duties—suitable training of a vocationally useful kind provided:
(i) by the employer at the workplace or elsewhere, or
(ii) by any other person or body under arrangements made with the employer,
but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the training concerned.
(3) However, in any such case, suitable employment does not include:
(a) employment that is merely of a token nature and does not involve useful work having regard to the employer’s trade or business, or
(b) employment that is demeaning in nature, having regard to subsection (1) (a) and (b) and to the worker’s other employment prospects.
(4) A worker is to be regarded as suitably employed if:
(a) the worker’s employer provides the worker with, or the worker obtains, suitable employment, or
(b) the worker has been reinstated to the worker’s former employment under Part 7 of Chapter 2 of the Industrial Relations Act 1996.
The approach to the assessment of an entitlement to weekly compensation pursuant to section 40 was discussed by the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’)(the Court of Appeal, Mason P, Beazley JA and Grove A-JA at 529) where five steps were set out as follows:
“…the Court is required:
1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a)).
2. To determine ‘the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury’ (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:
a. the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
b. the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.
3. To subtract the figure derived from 2 from the figure derived from 1 (section 40(2)).
4. To decide whether and to what extent the reduction calculated as above bears such relation to the amount of that reduction as may appear proper in the circumstances of the case (section 40(1)).
5. To make an award in the amount arrived at in Step 4.”
Where Mr Charles established an ongoing entitlement to weekly benefits due to partial incapacity, section 40 applies to determine the amount of that entitlement. Having received in excess of 26 weeks of weekly benefits pursuant to sections 36 and 37, Mr Charles is not entitled to more than he would have received if he were totally incapacitated (section 40(5)). His entitlement on and from 1 December 2004 is therefore the statutory rate, pursuant to section 37, or 90% of his average weekly earnings, whichever is the lesser amount. In effect it will be the maximum statutory rate for a single person with a dependent wife and one dependent child.
The Arbitrator erred in awarding Mr Charles weekly compensation at the rate of $1243.00 per week from 1 December 2004 to the date of the decision, 8 August 2005.
Did the Arbitrator err in awarding compensation pursuant to Section 38?
The Appellants submit that:
“The Arbitrator awarded compensation under Section 38 from the date of the award (8 August, 2005). No findings were made or reasons given to explain what evidence warranted a finding under Section 38 as at that date. Nor were any findings made to the effect that Section 38A had been complied with. Moreover, the Respondent worker had not put any argument to the effect that Section 38 was applicable and the Appellant was therefore denied natural justice and procedural fairness in what (sic) it was not given an opportunity to be heard on whether Section 38 was applicable.
None of these arguments, however, require further development because Section 38(2) limits the entitlement under the section to 52 weeks. The list of payments made by the insurer referred to above clearly shows that the worker had received the full entitlement to 52 weeks of payments under Section 38 between 21 August, 2001 and 5 February, 2003. Any liability which the Appellant may have had under Section 38 had, therefore, been satisfied in full by 8 August, 2005 and it was not open to the Arbitrator to make an award under that Section.”
The Appellants’ submissions are clearly correct. Section 38 of the 1987 Act has no application on the facts of this matter. The Arbitrator erred in purporting to make the award of weekly compensation from the date of the decision and continuing “pursuant to section 38 of the 1987 Act”.
Did the Arbitrator err in finding that the worker’s ability to earn pursuant to Section 40 was nil as a matter of law?
The Appellants submit that:
“It is an error of law to find that a partially incapacitated worker has an ability to earn under Section 40(2)(b) of ‘nil’. Total and partial incapacity are clearly distinguished under the 1987 Act. If a worker’s labour in an injured state is unsaleable in the open labour market reasonably accessible to him or her, then he or she is totally incapacitated. If such labour is saleable, but in a reduced capacity, then the worker is partially incapacitated. Thus, it is implicit in a finding that a worker is partially incapacitated that they are not totally incapacitated and that there is some remunerative work which they could do. It is, therefore, not possible to undertake the steps required under Section 40 as set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 proceeding on the assumption that step 2 can be ‘nil’, as this is not a real number.”
The Arbitrator did not find Mr Charles totally incapacitated. He referred to the medical evidence and concluded that the injuries to Mr Charles’ back and right arm resulted in work restrictions in relation to lifting, “repetition and climbing” and long distance driving. He accepted that ‘Mr Charles has demonstrated on the evidence a willingness to work, and a continuing determination to seek employment in duties for which he is now trained…”.
The determination of what amount Mr Charles would be able to earn in “suitable employment” is subject to the definition of “suitable employment” under section 43A of the Act. The Arbitrator, on the basis of the evidence before him, must make findings of fact. Pursuant to section 43A of the 1987 Act, “suitable employment” for Mr Charles must be work for which he is suited, with regard, amongst other things, to his incapacity, pre-injury employment, work experience, education, skills and length of time unemployed. Where, as a result of consideration of the evidence and the factors set out in section 43A, it is open to the Arbitrator to find that the worker is able to earn $Nil in suitable employment from time to time after the injury, there is no legislative impediment to that finding. It is a question of fact to be decided on the evidence and it is a different question to whether the worker suffered a total incapacity for work as a result of an injury. (See Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; The Warehouse Group Pty Ltd (formerly Clints Crazy Bargains) v Stephens [2006] NSWWCCPD 67 and City & Suburban Pty Ltd v Syrianos [2006] NSWWCCPD 73).
The Arbitrator did not make an error of law in finding that Mr Charles’ ability to earn in some suitable employment form time to time after the injury was $Nil.
Did the Arbitrator err in finding that the worker’s ability to earn in suitable employment was nil where such finding was against the evidence and the weight of evidence?
The Appellants submit that:
“The Arbitrator had found that the Respondent had been seeking suitable work without success, having made over 300 job applications (including at least one with a remuneration package of $85,000.00 per annum) and having been offered contract work by the RTA (with whom he had undergone retraining and a work trial lasting a number of months) which he refused for reasons unrelated to his physical incapacity. He had agreed that he was physically capable of performing the type of work for which he had been applying and would have accepted a job had one been offered to him; see paragraphs 21 to 23 of Decision.
In these circumstances, it is absurd to suggest that the Respondent is incapable of any work on the open labour market reasonably accessible to him. To so find would be to determine that his job seeking had been a sham.
The Arbitrator has confused the issue of ‘prospects’ of fining suitable work with the ‘ability to earn in some suitable employment’ required to be determined under the Act. It is a fundamental principle underlying Section 40 and the concept of ‘ability to earn’ that the scheme is not liable merely because a worker cannot or chooses not to find suitable work, otherwise full compensation would be payable whenever a worker was not ‘actually earning’.
The whole concept of ‘ability to earn’ under Section 40(2)(b) is predicated upon a hypothetical earning capacity and it is an error to find that no such ability exists merely because it has not been translated into actual employment. Section 52A makes it clear that the legislature has anticipated that a partially incapacitated worker may not be able to find suitable work for in excess of two years and that, provided that they continue to seek such work, this is not a bar to the recovery of compensation determined by reference to their hypothetical earning capacity.”
The Arbitrator does not refer to the Mitchell steps nor to the specific provisions of section 40. In an apparent reference to section 40(2)(a) the Arbitrator stated that:
“…I accept the average weekly earnings calculation as a proper calculation of entitlement, given the Applicant’s current attempts at finding suitable employment, at $1243.75. I make no adjustment to that sum for the period claimed to date, or on a continuing basis, in the circumstances.”
On the issue of “the average weekly amount that [Mr Charles] would be able to earn in some suitable employment from time to time after the injury” (section 40(2)(b) of the 1987 Act; Step 2 in Mitchell) the Arbitrator found that:
“…I am not satisfied that Mr Charles has any real prospects for suitable work at this time. There is evidence that he has since December 2004, he has (sic) sought work in numerous places, with no success. It is not from the want of trying. He has relatively good relevant qualifications but his ability to secure suitable employment, within a particular industry, totally governed by RTA, makes his prospects dim, given that RTA is a competitor for that work, and has demonstrated a wish to secure work for itself in preference to the Applicant.”
Unfortunately the Arbitrator did not refer to section 43A of the 1987 Act. However he did refer to the relevant evidence for his finding that Mr Charles could earn $Nil, as follows:
i.Mr Charles was retrained from his truck driving duties as a “workplace trainer and assessor in relation to trucks”.
ii.He worked in a general office and sales role until he was terminated from his employment in December 2004.
iii.He has skills for ‘training and assessor’ jobs however his skills are limited in relation to ‘forklifts’ and he would benefit in upgrading his qualifications in order to get work.
iv.Mr Charles has attempted, unsuccessfully, to obtain employment in the ‘general market’ in the area where he has some skills.
v.‘Contracting’ work was not offered to Mr Charles, and it was not unreasonable for him to indicate his “reluctance to take such an offer”.
vi.The labour market reasonably accessible to Mr Charles was diminished because of the commercial arrangements between the Road Traffic Authority and other competitors for the type of work for which he had retrained and for which he had applicable skills.
The Arbitrator’s finding was that Mr Charles was not able to find work, not, as the Appellants suggest, that he was unwilling to find work. The Arbitrator did not refer to the extensive ‘Job Match s.40 Assessment’; ‘Vocational Assessment’ and ‘Functional Capacity Evaluation’ (‘the vocational reports’) filed by the Appellants in the arbitration proceedings. This is an issue discussed below in relation to the adequacy of the reasons, however it is a significant omission in relation to the determination of what was Mr Charles’ ‘ability to earn in some suitable employment after the injury’ (section 40(2)(b) of the 1987 Act). The vocational reports opined that Mr Charles had a range of skills and capacity to perform ‘sedentary and semi-sedentary’ work, with certain restrictions, including ‘training officer’, Control Room Operator, and car salesman. The Occupational Physiotherapist report of Inez Farag, dated 3 June 2005, concludes that Mr Charles is capable of a range of restricted duties on a full time basis. Immediately prior to accepting a redundancy, in December 2004, Mr Charles was working an average of 30 hours per week. In the previous 12 months he worked an average of 32.36 hours per week. According to the ‘S 40 Assessment’ made by ARC Rehabilitation and Risk Management Services, for the Appellants, the job of a ‘Workplace Assessment and Training Officer”, which matched Mr Charles’ most ‘saleable’ skill, attracts a part time rate of $20.96 per hour.
Mr Charles is 49 years old and lives in Sydney. He theoretically has potential access to a broad labour market. The evidence is that, as a result of his injury, he is suited to light work, with lifting restrictions. Mr Charles gave evidence, accepted by the Arbitrator, that he had applied for jobs of ‘trainer, assessor, sales representative or recruitment consultant’ and had not had a response to his applications. All of the evidence supports the conclusion that Mr Charles actively participated in his rehabilitation and was motivated to return to the workforce. The facts demonstrate that Mr Charles has sought suitable employment in the labour market reasonably accessible to him and has not been able to obtain it. There is thus no ‘actual earnings’ that may be used as a guide to his ability to earn, post injury.
Ultimately it was for the Arbitrator to consider the whole of the evidence and make the relevant findings of fact. The vocational reports were before him and I am not persuaded that even if he had referred to them in his reasons, he would have come to a different view on Mr Charles’ ability to earn in some suitable employment post injury. The Arbitrator’s conclusions are not capricious, unreasonable or unsupported by other evidence. Taking all of these matters into account it was open to the Arbitrator to conclude that Mr Charles’ ability to earn was, when the section 43A factors were considered, $Nil.
Did the Arbitrator err in failing to give any or any sufficient reasons as to the Respondent’s ability to earn in the open labour market reasonably accessible to him and in failing to properly determine that issue?
The Appellants submit that:
“The Arbitrator has focussed his sole consideration of the Respondent’s ability to earn on the re-training he had done to work as a trainer-assessor of truck drivers and upon the “quasi-monopoly” the RTA was alleged by the Respondent to enjoy over that field of work; see paragraphs 20 and 21 of the Decision.
In so doing the Arbitrator has failed to consider in more general terms to (sic) types of lighter type work in other fields which might be open to the Respondent. In particular, the Arbitrator has failed to consider, or give reasons for the rejection of, the opinions expressed in the vocational assessment performed by ARC Rehabilitation and Risk Management Services Pty. Limited dated 6 June 2005 and filed in the proceedings under an Application to Admit Late Documents dated 10 June, 2005. That assessment identified five suitable employments, including as a sales representative in various fields (see below), with market rates for earning of between $33,000.00 and $50,000.00 per annum, or $635.00 to $962.00 per week.
Further, apart from the fields dominated by the RTA, the Respondent himself gave evidence that he had applied for jobs as a sales representative and a recruitment consultant and that he felt he could do such work: T[ranscript] 11.14-12.33.
There was, therefore a body of evidence completely ignored and unaddressed by the Arbitrator, which would support a finding that the Respondent’s ability to earn was at least, averaging the foregoing figures, $800.00 per week.”
In my view the Arbitrator’s reasons were inadequate in that they did not address significant relevant evidence (the vocational reports) and they did not make clear findings as to the persuasiveness of the medical evidence, particularly in relation to the nature of Mr Charles’ work restrictions post injury. However, given the other errors in the decision, it is not necessary to rely upon this inadequacy, as an error of law, to set aside the Arbitrator’s decision.
Review of Section 40 Entitlement.
In my view the correct assessment of Mr Charles entitlement to weekly compensation pursuant to section 40 of the 1987 Act (for the reasons outlined above) is as follows:
1.Mr Charles would have been earning $1243.75 if uninjured.
2.Mr Charles’ ability to earn in some suitable employment from time to time after the injury was $Nil.
3.The reduction in his earnings post injury is therefore $1243.75.
4.There is nothing in the evidence before me to support the exercise of the discretion to adjust this amount ‘as may appear proper in the circumstances of the case’.
5.The amount of $1243.75 per week is greater than the amount of weekly compensation that Mr Charles would have received had he been totally incapacitated. He is therefore entitled to the statutory rate for a person with a dependent spouse and one dependent child.
I note that the date from which Mr Charles claims weekly benefits compensation differs in the original ‘Application to Resolve a Dispute’, the ‘Amended Application to Resolve a Dispute’ and the Arbitrator’s orders. The date used in the Arbitrator’s orders, namely 1 December 2004 is not challenged in the appeal and I therefore do not interfere with it.
DECISION
Order 1 of the decision of the Arbitrator, dated 8 August 2005, is revoked and the following decision is made in its place:
1.The Respondents pay the Applicant weekly compensation, pursuant to section 40 of the Workers Compensation Act 1987, at the statutory rate for a person with a dependent spouse and one dependent child, from 1 December 2004 and continuing.
COSTS
The Appellants have been successful on the appeal. Mr Charles did not make any submissions. The appropriate order is to make no order as to costs of the appeal.
Dr Gabriel Fleming
Deputy President
2 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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