Logar v State Rail Authority of NSW
[2007] NSWWCCPD 9
•12 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Logar v State Rail Authority of NSW [2007] NSWWCCPD 9
APPELLANT: Danny Logar
RESPONDENT: State Rail Authority of NSW
INSURER:The Rail Corporation
FILE NUMBER: WCC1683-06
DATE OF ARBITRATOR’S DECISION: 22 June 2006
DATE OF APPEAL DECISION: 12 January 2007
SUBJECT MATTER OF DECISION: Incapacity for work; treatment of the evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Lyons & Lyons, Solicitors
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 June 2006 is confirmed.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 20 July 2006, Danny Logar sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 22 June 2006. The Respondent to the appeal is the State Rail Authority of NSW (‘the SRA’), a workers compensation self–insurer through the Rail Corporation.
Mr Logar was born on 10 April 1962 and is aged 44. He commenced employment with the SRA in 1979, becoming a train driver in 1986. Mr Logar claims to have suffered two compensable injuries. First, on 31 January 2001, his left shoulder was injured as a result of an assault by passengers on the train he was driving. Second, he claims to have suffered a psychological injury as a result both of the first injury and an incident on 14 May 2004 when he was driving a train that appeared to run over a body. This turned out to be a prank involving a dummy laid over the tracks. Mr Logar notified the SRA of both incidents and lodged claims for weekly compensation and medical expenses.
Mr Logar also made a claim for compensation for permanent impairment to his left shoulder. This was settled by agreement between the parties and, on 29 April 2004, the Commission registered this agreement pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’). Pursuant to this agreement, the SRA paid Mr Logar the sum of $11,250 for a 15% loss of efficient use of the left arm at or above the elbow, together with $5,750 for pain and suffering. The SRA denied any further liability from 21 July 2004.
On being questioned by the SRA on 18 May 2004, Mr Logar admitted to the use of marijuana as self-medication for his shoulder injury. He was then “removed from safeworking and paid base pay” (SRA letter dated 8 March 2005). Following further meetings and correspondence, by letter dated 27 May 2005, the SRA notified Mr Logar of the immediate termination of his employment “on medical advice”, with an “exit date” of 27 September 2005 “at the expiration of your sick pay”.
On 8 February 2006, the Commission registered Mr Logar’s ‘Application to Resolve a Dispute’ in relation to his claim for weekly compensation from 21 July 2004 and for medical expenses. The SRA’s ‘Reply’ was received on 22 March 2006. On 19 April 2006, an Arbitrator conducted a teleconference with the parties. On 19 May 2006, conciliation having proved unsuccessful, she commenced an arbitration hearing, which was adjourned to and concluded on 6 June 2006. The Arbitrator’s decision, dated 22 June 2006, is set out below.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 June 2006, records the Arbitrator’s orders as follows:
“1. Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2. With respect to the injury to the left shoulder on 31 January 2001, that the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
3. With respect to the alleged psychological injury, the Respondent is not liable for the payment of the Applicant’s claim under s 60 of the Workers Compensation Act 1987.
4. That the Respondent pay the Applicant’s costs as agreed or assessed in relation to the claim for medical expenses.”
In the Statement of Reasons for her decision, the Arbitrator found that the SRA had “accepted liability to pay the reasonably necessary expenses in relation to the left shoulder on production of accounts or receipts”, and it was, therefore, appropriate to make a general order for payment of those expenses pursuant to section 60 of the 1987 Act. However, the Arbitrator found “no evidence from the Applicant to support the claim” that he is incapacitated and thereby entitled to weekly compensation: there was no evidence of physical restrictions arising from the injury to Mr Logar’s left shoulder to support his claim that he was economically incapacitated as a result of the injury.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether Mr Logar is incapacitated for work as a result of the injury on 31 January 2001. Mr Logar’s solicitors submit the Arbitrator made errors of law and fact in relation to this issue. The parties’ submissions are considered below. Mr Logar’s solicitors do not dispute that part of the Arbitrator’s decision rejecting Mr Logar’s claim in respect of the claimed psychological injury.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises at least 20% of the amount awarded by the Arbitrator. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS
Mr Logar’s solicitors submit the Arbitrator failed to take material evidence into account (the agreed 15% loss of efficient use of the left arm at or above the elbow) and erred in finding there was no evidence to support Mr Logar’s claim that he was incapacitated as a result of the left arm injury on 31 January 2001. Further, she misdirected herself on the question of incapacity by failing to consider whether the physical defect to Mr Logar’s left arm caused by the injury makes his labour less saleable in the labour market reasonably accessible to him. Alternatively, the Arbitrator failed to give adequate reasons for finding that Mr Logar did not suffer any incapacity as a result of the injury.
The SRA submits the Arbitrator made no error of law, fact or discretion, and gave adequate reasons for her decision. It contends she was correct in finding there was no evidence that Mr Logar’s physical disability causes any physical restriction giving rise to a partial incapacity for work. A finding of permanent impairment under section 66 of the 1987 Act does not in itself provide evidence to ground a finding of partial incapacity under section 40 of the Act.
EVIDENCE, DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Logar 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. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
Mr Logar provided a statement dated 7 December 2004. He stated that after surgery on his left shoulder on 19 April 2001 and a period on restricted duties, he returned to his pre-injury duties in November 2002. His reference to ongoing treatment from a psychologist, and to his taking Panadeine Forte and having heat treatment and later acupuncture, indicates that Mr Logar continued to suffer pain as a result of his shoulder injury. He did not, however, state that he was unable to work as a train driver or undertake similar work because of the shoulder injury.
Amongst Mr Logar’s medical evidence is a report from a sports physician, Dr Jeni Saunders, to Mr Logar’s general practitioner, Dr John Mathews, dated 24 August 2005. She found that movements of Mr Logar’s shoulder “were diminished in flexion, abduction and external rotation”. A report to Mr Logar’s previous general practitioner, Dr J Sagoo, by Dr Daryl Salmon, Consultant in Pain Management, dated 2 July 2004, refers to Mr Logar continuing to work with pain which “reduced his physical tolerances”. Dr Salmon stated on examination:
“There was no postural change in his shoulder. There was a good range of movement of both shoulders, but with some aching towards end range on the left. The left arm was decreased in circumference compared to the right. There was tenderness in the trapezius, supraspinatus, infraspinatus and subdeltoid region. Deep tendon reflexes were present and equivalent.”
Dr Salmon stated that although Mr Logar “demonstrates a full range of movement ... [he] clearly is restricted in the physical tasks that he can perform”. However, neither Dr Saunders nor Dr Salmon opined that Mr Logar was unable to undertake his normal duties as a train driver as a result of the injury or otherwise commented on his capacity for work.
The SRA provided reports from Dr Robert Breit, Orthopaedic Surgeon, dated 25 September 2003 and 21 June 2004. In his earlier report, Dr Breit found on examination:
“There is tenderness over the anterior aspect of the shoulder and particularly the lesser tuberosity of the humerus. Movements are full with the exception of getting the hand behind the back, which only reaches L3 but with difficult [sic] past the level of the natal cleft.
Movements above 90Õtend to be quite slow.
There is some sub-acromial crepitus.
Strength is good, although slightly diminished in sub-scapularis and testing is associated with discomfort.”
Dr Breit found Mr Logar “fit for normal work”. In his later report, while diagnosing left shoulder pain and weakness post reconstruction, Dr Breit found Mr Logar “fit for normal duties as far as the shoulder injury is concerned”. He did, however, recommend a supervised strengthening program.
The Arbitrator found that Mr Logar performed full duties between November 2002 and May 2004. The Arbitrator discussed the evidence of Dr Breit and Dr Salmon, and while acknowledging Dr Salmon’s evidence that although Mr Logar “demonstrates a full range of movement ... [he] clearly is restricted in the physical tasks that he can perform”, found there “is no evidence of any such restrictions and the impact on his capacity to earn as a result”.
In its submissions on the appeal, the SRA referred to the High Court decision (decided by a majority of four to one) in Arnott’s Snack Products Pty Ltd v Yacob (1985) 155 CLR 171, where, the majority said:
“13. It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.”
The majority of the Court emphasised that that the applicant’s entitlement to compensation depends on loss of earning power caused by the physical disability.
I am not satisfied that the Arbitrator made any error in her decision. Entitlement to payment of weekly compensation arises from a reduction of weekly earnings caused by the physical disability, not from the mere fact of a physical disability resulting from an injury (see, relevantly, section 40 of the 1987 Act in respect of weekly payments during partial incapacity). In my view, the Arbitrator correctly applied the law and it is clear that she recognised Mr Logar’s physical disability and the agreed compensation paid for loss of efficient use of the left arm at or above the elbow and for pain and suffering (referred to in paragraph 22 of her Statement of Reasons).
However, the Arbitrator found there was no evidence before her that such disability adversely affected Mr Logar’s physical capacity for work such that it gave rise to a reduction in weekly earnings, noting that he was able to return to his normal duties as a train driver between November 2002 and May 2004. I am satisfied from my review that the evidence was capable of supporting such a finding, and that the Arbitrator gave adequate reasons for so finding in accordance with her obligation under section 294(2) of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003 in effect at the time of the Arbitrator’s determination (now Rule 15.6 of the Workers Compensation Commission Rules 2006). The Arbitrator’s decision must therefore be confirmed.
DECISION
The Arbitrator’s decision dated 22 June 2006 is confirmed.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
12 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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