Luxotica Retail Australia Pty Ltd v Susak - [2014] NSWWCCPD 36

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Luxotica Retail Australia Pty Ltd v Susak [2014] NSWWCCPD 36
APPELLANT:	Luxotica Retail Australia Pty Ltd
RESPONDENT:	Jasmina Susak
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-14647/12
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:	12 February 2014
DATE OF APPEAL DECISION:	13 June 2014
SUBJECT MATTER OF DECISION:	Partial incapacity; weekly compensation under s 40 of the Workers Compensation Act 1987 (as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012); calculation of ability to earn; effect of subsequent injury on ability to earn; exercise of discretion in determining the proper amount of weekly compensation; assessment of medical evidence; application of the principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 and Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; issues not argued at the arbitration; application of the principles in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 and Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111; alleged failure to give reasons
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Edwards Michael Lawyers
Respondent:	Carters Law Firm
ORDERS MADE ON APPEAL:	1. Save for deleting “25 September 2012” and substituting “25 April 2013” in paragraph 1 of the Certificate of Determination of 12 February 2014, the Arbitrator’s determination is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

This appeal concerns an Arbitrator’s findings in respect of an award for weekly compensation under s 40 of the Workers Compensation Act 1987 (the 1987 Act), as it stood prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012 (amending Act). The amendments introduced by the amending Act do not apply to the worker because she was an “existing recipient” of weekly compensation immediately before 1 October 2012 and, as no work capacity assessment has been conducted (see cl 9 of Pt 19H of Sch 6 to the 1987 Act), the worker remains entitled to compensation under Div 2 of Pt 3 of the 1987 Act “as if the weekly payments amendments had not been made” (cl 6 of Pt 19H).

BACKGROUND

On 26 November 2004, the respondent worker, Jasmina Susak, injured her back in the course of her employment as an optical technician/process worker with the appellant employer, Luxotica Retail Australia Pty Ltd (Luxotica) (the 2004 injury/the back injury). She suffered a further injury, to her neck, right shoulder and right knee, and aggravated the back injury, in a car accident on 27 January 2009 (the car accident) while driving home from a rehabilitation program for the original back injury.
Ms Susak also injured her right wrist at work on 23 September 2004 and her back in a car accident in 2001. As it is accepted that she recovered from both of these injuries, neither is directly relevant to the appeal.
In 2005, the parties agreed that Ms Susak had a seven per cent whole person impairment as a result of the 2004 injury. In May 2011, an Approved Medical Specialist (Dr Beer) assessed her to have a 14 per cent whole person impairment as a result of the car accident, but accepted that there should be a 5/7^th reduction in respect of the impairment because of the effects of the 2004 injury to the lumbar spine.
After the 2004 injury, Ms Susak worked on suitable duties with Luxotica for 30 hours per week until December 2006, when those duties were no longer available. She has not worked since that time.
From July 2007 until the car accident, Dr Todorovic, Ms Susak’s general practitioner, certified her fit for suitable duties for 30 hours per week.
After the car accident, Ms Susak had periods of total incapacity but Dr Guirgis, the treating orthopaedic surgeon, certified her to be fit for suitable duties for 12 hours per week from February 2010, which he increased to 16 hours per week by about October 2012. He considered that she was permanently unfit for her pre-injury duties and was unfit for work that applied stresses to her neck and back. He apportioned Ms Susak’s incapacity equally between the car accident and the 2004 injury.
Ms Susak claimed damages for the injuries received in the car accident, which claim she settled on 30 June 2011. That settlement, the terms of which are not in evidence, extinguished her rights to receive workers compensation benefits for all injuries received in that accident (s 151Z(1)(b) of the 1987 Act).
Luxotica’s insurer paid voluntary weekly compensation at the appropriate statutory rate until it issued a notice on 19 March 2012 reducing that rate to $101.29 per week, effective from 25 April 2012. It arrived at the rate by deducting its assessment of Ms Susak’s ability to earn ($621.29) from its assessment of probable earnings but for the injury ($722.58). The insurer gave no other reason for reducing Ms Susak’s payments.
In a report of 15 January 2013, Dr Todorovic stated that Ms Susak was fit for suitable duties for only 20 hours per week, notwithstanding that, prior to the car accident, he had certified her fit for suitable duties for 30 hours per week. He said that he had previously certified her fit for 30 hours per week because of a request by her rehabilitation provider, to increase her chances of finding a job, though his opinion was that she was realistically fit for only 20 hours per week.
The issue before the Arbitrator was Ms Susak’s entitlement to weekly compensation as a result of the 2004 back injury. The Arbitrator applied the five steps in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell) and made the following findings:
(a)     Ms Susak’s probable earnings but for the injury to be $770.39 per week from 25 April 2012 to 24 April 2013 and $789.03 from 25 April 2013 to date (these figures have not been challenged on appeal);
(b)     working 20 hours per week in suitable employment, Ms Susak’s ability to earn from 25 April 2012 to date was $300 per week;
(c)     deducting $300 from $770.39 and from $789.03 gave a difference of $470.39 and $489.03 respectively;
(d) having taken into account the effects of the car accident in step two, there was no evidence to justify the exercise of the discretion in s 40 to reduce the figures at step three, and
(e)     Ms Susak was entitled to an award as per the figures at step three.
The Commission issued a Certificate of Determination on 12 February 2014 in the following terms:
“Orders
1. The respondent is to pay the applicant weekly benefits compensation pursuant to section 40 of the Workers Compensation Act 1987 (as it stood prior to the amendments of 19 June 2012) at the rate of $470.39 per week from 25 April 2012 to 24 April 2013 and at the rate of $489.03 per week from 25 September 2012 [sic, 25 April 2013] to date and continuing, with credit to be given to the respondent for payments made.
2. The respondent is to pay the applicant’s costs as agreed or assessed.
Certification
1. In light of the medical, legal and factual complexities in this case and for the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2010 I certify this matter as complex with 25 per cent increase in the costs otherwise available to both parties.”
Luxotica has appealed. For the reasons explained below, the appeal is unsuccessful.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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 Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that, subject to one issue, 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 one issue on which I felt I did not have sufficient information to proceed on the papers was the exercise of the discretion under s 40 (step four). On this issue, the parties were invited to make additional submissions at a teleconference on 11 June 2014. At that teleconference, Mr Wardell, solicitor, represented the appellant and Mr Frank Curran, barrister, represented Ms Susak.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     accepting the evidence from Dr Todorovic that prior to the car accident Ms Susak could only work 20 hours per week, when that evidence was in contradiction of evidence previously provided by that doctor;
(b)     accepting the evidence from Dr Todorovic that prior to the car accident Ms Susak could only work 20 hours per week when such statement was a bare ipse dixit without adequate reasons or explanation, particularly in circumstances where such opinion was in direct contradiction of opinions previously expressed by him and he gave the different opinion after the settlement of the claim for damages for the car accident;
(c)     finding that the car accident reduced Ms Susak’s capacity to perform suitable duties by only four hours per week;
(d)     failing to take into account or address the evidence supporting the proposition that Ms Susak’s incapacity had been significantly increased by the effects of the car accident;
(e)     failing to take into account the additional difficulties in obtaining suitable work arising from the car accident due to a greater number of body parts being subjected to restrictions by reason of having been injured in the car accident and where the likelihood of Ms Susak obtaining suitable duties was further reduced;
(f) declining to exercise the s 40 discretion to reduce the amount of the s 40 award so as to take account of the effect of the car accident on Ms Susak’s ability to seek, obtain and maintain suitable employment;
(g)     failing to apply the three per cent notional consumer price index increases applied to Ms Susak’s probable earnings but for injury to her ability to earn in suitable employment, and
(h)     failing to give any or any adequate reasons in relation to the above.
It is convenient to deal with the above grounds under the following headings: Dr Todorovic’s evidence, the effects of the car accident, the s 40 discretion, and assessment of probable earnings.

Dr TODOROVIC’S EVIDENCE (grounds (a) and (b))

The Arbitrator’s decision

The Arbitrator referred (at [31]) to Dr Todorovic’s evidence in his report of 25 July 2010 where he addressed the circumstances and consequences of the 2004 back injury and the 2009 car accident. She added:
“[Dr Todorovic] notes that before the 2009 accident [Ms Susak] was certified fit for light duties for 30 hours per week with a lifting restriction of five kg using both arms and two kg using her right arm only, standing up to 15 minutes only, and sitting/travelling/keying up to 45 minutes. Dr Todorovic indicates that following the car accident in January 2009 there were periods of total incapacity, but since 25 February 2010 [Ms Susak] was certified fit for light duties 12 hours per week with a lifting restriction of two kg, a sitting/travelling/ keying restriction of 45 minutes, and the limitation that she is unfit for repetitive bending and heavy manual handling.
32. As is evident from Dr Todorovic’s certification of September 2012 as well as Dr Guirgis’s comments, [Ms Susak] was subsequently certified as fit for suitable duties for 16 hours per week.”
The Arbitrator had earlier referred (at [29]) to Dr Todorovic’s report of 15 January 2013, which confirmed that Ms Susak’s hours had been increased in July 2007 to 30 per week at the request of the rehabilitation provider so that Ms Susak’s chances of finding a job would be improved. However, he said that, in his opinion, Ms Susak was realistically fit for light duties for only 20 hours per week.
The Arbitrator said, at [30]:
“30.That opinion accords with [Ms Susak’s] own view in her statement, and I accept this explanation from Dr Todorovic for why he changed her certifications in July 2007. It is apparent that the shift in certification did not ultimately assist [Ms Susak] to find work, as she has not worked since December 2006. In my view Dr Todorovic’s earlier certifications should be considered and weighed in light of this subsequent explanation and clear statement of his opinion on the extent of the applicant’s capacity as at July 2007.”

Submissions

After referring to Dr Todorovic’s evidence, Mr Wardell, who did not appear at the arbitration, referred to the following passage from the Joint Statement as to the Role of Medical Practitioner in NSW Workers Compensation System (the Joint Statement) issued by WorkCover and the NSW AMA on 20 April 2010:
“A medical certificate is a legal document which enables a worker to receive weekly benefits and all necessary medical treatment and rehabilitation. It is essential that medical certificates accurately reflect the worker’s level of fitness for work. This is based on the doctor’s clinical opinion. If uncertain about a worker’s level of fitness, a doctor can request information from a treating physiotherapist or a rehabilitation provider. It is the doctor’s responsibility to determine fitness for work.”
He also referred to cl 8.8 of the “Good Medical Practice: A Code of Conduct for Doctors in Australia” (the Code of Conduct) issued by the Medical Board of Australia, which states:
“The community places a great deal of trust in doctors. Consequently, doctors have been given the authority to sign a variety of documents, such as Death Certificates and sickness certificates, on the assumption that they will only sign statements that they know, or reasonably believe, to be true. Good medical practice involves:
8.8.1 Being honest and not misleading when writing reports and certificates, and only signing documents you believe to be accurate.
8.8.2 Taking reasonable steps to verify the content before you sign a report or certificate and not omitting relevant information deliberately.”
Mr Wardell said that it must be assumed that Dr Todorovic was aware that the certification provided by him during the period July 2007 to 27 January 2009 was expected to be a reflection of his honestly and independently held clinical opinion, and that it was not appropriate to misstate such opinion at the request of a rehabilitation provider. As a matter of public policy, it is crucial that insurers, their service providers, the Commission, and courts can proceed on an assumption that a statement made by a doctor in a medical certificate or report reflects that doctor’s clinical opinion.
Mr Wardell submitted that it was not appropriate for the Arbitrator to merely “accept” the “explanation” provided by Dr Todorovic in his 15 January 2013 report, particularly when the effects of the car accident had been taken out of the equation prior to the writing of that report. He argued that accepting Dr Todorovic’s subsequent statement should have been undertaken with extreme caution and scepticism and attended by far more detailed reasons.
Mr Wardell complained that, in the Arbitrator’s reasons at [30], she provided no adequate reason for preferring Dr Todorovic’s “clear statement” over his previously expressed and equally “clear statements”. One of Dr Todorovic’s opinions, as to the hours Ms Susak could work in suitable employment, was wrong and was given to assist Ms Susak and did not reflect his true clinical opinion. Dr Todorovic prepared the report of 15 January 2013 “for the purposes of and to assist [Ms Susak] in the current Commission proceedings”.
In these circumstances, Mr Wardell contended that the Arbitrator erred in accepting the opinion expressed by Dr Todorovic in the report of 15 January 2013, or she gave too much weight to that evidence, leading to a conclusion that was wrong.
Next, Mr Wardell argued that, in accepting Dr Todorovic’s evidence, the Arbitrator made a further error in that such opinion was nothing more than a bare ipse dixit and should have been accorded no weight. He said that it was incumbent upon him to explain why Ms Susak could not have performed suitable duties for 30 hours per week, or, indeed, full-time. His baldly expressed opinion could not be accorded any weight.
Mr Curran submitted that the allegation against Dr Todorovic is that he was dishonest in his dealings with the rehabilitation provider and that such allegations should have been put to the doctor rather than made in privileged submissions (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock)).
Mr Curran added that the criticism of Dr Todorovic does not establish that the Arbitrator erred in accepting the evidence from that doctor in his report of 15 January 2013. She was entitled to accept that evidence, which was not refuted by evidence from the rehabilitation provider. Dr Todorovic gave an honest account as to the certifications of fitness for 30 hours a week in the period July 2007 to 27 January 2009, explained that they were issued to facilitate rehabilitation but his medical opinion was that, realistically, Ms Susak was only fit for 20 hours a work.

Discussion and findings

I do not accept Mr Wardell’s submissions.
The criticism of Dr Todorovic’s evidence on appeal cannot be sustained. It is a clear attack on the doctor’s credit in circumstances where the doctor has had no opportunity to defend himself. If it is being suggested that there was some impropriety in what Dr Todorovic did, and that seems to be what Mr Wardell is putting, that should have been put to the doctor in cross-examination (Hancock at [104]). Not only was no such attack made at the arbitration, counsel for Luxotica, Mr Alan Parker, did not refer to Dr Todorovic’s evidence at all at the arbitration.
The fact that Dr Todorovic changed his opinion as to Ms Susak’s fitness for suitable duties was a matter that called for an explanation. He provided that explanation in his report of 15 January 2013 where he said:
“This is to confirm that Ms Susak’s working hours were increased in July 2007 to 30 hours per week, (light duties) on the request of her rehabilitation provider – Active Occupational Health Services. The reason to increase her working hours was to increase her chances of finding a job, while in my opinion she was realistically fit for only 20 hours per week of light duties.”
Dr Todorovic’s assertion that he certified Ms Susak fit for suitable duties for 30 hours per week at the request of her rehabilitation provider, Active Occupational Health Services (Active), to increase her chance of finding work, was not challenged in any evidence from Luxotica, or in any submission from Mr Parker. The appellant called no evidence from Active to rebut the suggestion that the increase to 30 hours per week was made, at their request, to increase Ms Susak’s chance of finding work, and Mr Parker made no criticism of Dr Todorovic’s report.
Dealing with Ms Susak’s capacity in general, and Dr Todorovic’s evidence in particular, Mr Curran submitted, at T16.26:
“In my respectful submission, the capacity of [Ms Susak] to work upon the open labour market reasonably available to her under the Mitchell test is very low indeed. And nothing can be said about that, it’s been a fact. She was trying to get work, with this back injury, between 2005 and 2009. That’s the overall evidence. She was trying to get work. Dr Todorovic says he facilitated that by artificially escalating her capacity to work to what he thought was an unrealistic level. She couldn’t get work.”

The Arbitrator accepted (at [30]) Dr Todorovic’s evidence in his 15 January 2013 report for three reasons, namely:
(a)     it accorded with Ms Susak’s own view in her statement;
(b)     she accepted his explanation for why he changed Ms Susak’s certifications in July 2007, and
(c)     Dr Todorovic’s earlier certifications should be considered and weighed in light of his subsequent explanation and clear statement of his opinion on the extent of Ms Susak’s capacity as at July 2007.
The submission that Dr Todorovic’s subsequent statement should only have been accepted with “extreme caution and scepticism and attended by for more detailed reasons” is without foundation. An Arbitrator’s obligation to give reasons depends on the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (Clarke JA and Hope AJA agreeing) and, in particular, must be considered in the light of the issues raised for consideration by the parties (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 11 at [22] (Bell)).
As noted above, counsel for Luxotica did not refer to Dr Todorovic’s evidence. Moreover, he made no reference to the Joint Statement or the Code of Conduct, which documents were not even before the Arbitrator. As the Commission has held on dozens of occasions, parties are bound by the conduct of their case at first instance. It is necessary to repeat, yet again, the High Court’s observations in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, that:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The Arbitrator exposed her reasoning on the critical issues in dispute and articulated the essential ground on which she based her decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). Those reasons were adequate in the circumstances and there was no need for more detailed reasons. It was open to the Arbitrator to accept the opinion of Dr Todorovic in his report of 15 January 2013 and that acceptance involved no error.
The submission that the Arbitrator erred in accepting Dr Todorovic’s opinion, because it was a bare ipse dixit, is rejected for the same reasons noted above. This point was not argued before the Arbitrator. It is clearly a point that, had it been raised at the arbitration, could have been met by calling additional evidence from Dr Todorovic. Mr Wardell has advanced no reason why leave should be given for it to be raised for the first time on appeal. In the circumstances, it is not open to argue that an Arbitrator erred in not dealing with a point never argued (Bell at [22] and [30]).
Moreover, Mr Wardell’s submissions have ignored the principles in Hancock, which the Commission has consistently applied in several cases. That decision made it clear that, even in evidence based jurisdictions, compliance with the usual requirements for expert evidence “does not require strict compliance with each and every feature referred by Heydon JA in Makita to be set out in each and every report” (per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) in Hancock at [82]).
Beazley JA added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]). If an expert has done more than one report, those reports must be read together, and with the other evidence tendered. That is because a deficiency in one part of the expert’s evidence “may be made good by other material, either in another report or in oral evidence” ([92]).
In Hancock, the primary judge had rejected the evidence from the treating specialist (Dr Summersell) because he did not have a history of significant subsequent non-work incidents and he had not provided an “explanation of the scientific or other intellectual basis for the conclusion reached” (see the quote at [89] of Hancock). Dealing with the first point, Beazley JA said (at [88]) “the principle[s] in Makita do not require that there be an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved”.
Dealing with the second point, her Honour said, at [90]:
“Dr Summersell stated that, in his opinion, he suspected that ‘the subcutaneous changes are present due to a recent fall that [the appellant] had due to the pre-existing instability of his knee’. This opinion provided the scientific basis for the conclusion he reached in the respective reports, that the injury sustained in the work incident was responsible for the current condition of the appellant’s knee. Accordingly, there was no failure to comply with the second limb of Makita.” (emphasis included in original)
The “scientific basis”, that is, the explanation for Dr Summersell’s opinion, was not explained in any greater detail than is present in Dr Todorovic’s reports. Indeed, on one view, Dr Summersell provided a much briefer explanation for his opinion than that provided by Dr Todorovic. What is required by way of an explanation for the basis of the expert’s opinion will depend on the circumstances in each case (Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631]). However, an expert does not have to “offer chapter and verse in support of every opinion” (Sydneywide Distributors Pty Ltd vRed Bull Australia Pty Ltd [2002] FCAFC 157 at [89]).
As Spigelman CJ (Giles and Ipp JJA agreeing) explained in Australian Security and Investments Commission v Rich [2005] NSWCA 152 at [170] “[a]n expert frequently draws on an entire body of experience which is not articulated and, is indeed so fundamental to his or her professionalism, that it is not able to be articulated”. In other words, experts are allowed to use their general experience and knowledge, as experts, even though it is not stated in their reports.
Consistent with the principles discussed in Hancock, and, as Mr Curran submitted on appeal, Dr Todorovic’s opinion in his January 2013 report has to be read with his earlier reports. In his report of 25 July 2010, Dr Todorovic took a full history of the relevant events and complaints, set out his findings on examination and made appropriate references to radiological tests. He said that, prior to the car accident, Ms Susak had been fit for light duties for 30 hours per week and that, after that accident, she was fit for light duties for 12 hours per week.
In his January 2013 report, Dr Todorovic explained that he had increased Ms Susak working hours (on light duties) “on the request of her rehabilitation provider”, to increase her chances of finding a job, and that “realistically” his opinion was that she was only fit for light duties for 20 hours per week. Exactly what more Dr Todorovic was meant to explain is unclear. His reports, when read together, provided a fair climate for the acceptance of his opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510). That is particularly so in circumstances where his ultimate opinion accorded with Ms Susak’s evidence, which evidence the Arbitrator accepted.

THE EFFECTS OF THE CAR ACCIDENT (grounds (c), (d), (e) and (h))

Submissions

Mr Wardell submitted that the Arbitrator’s bald acceptance of Dr Todorovic’s evidence is all the more open to criticism on the basis that the doctor’s earlier opinion (that Ms Susak was fit for 30 hours per week) was consistent with the other evidence. He relied on the evidence from Dr Guirgis in his report of 9 October 2012 that Ms Susak had been certified fit for 30 hours per week before the car accident and she was more incapacitated after it, Dr Guirgis attributing 50 per cent of the incapacity to the car accident and 50 per cent to the 2004 injury. As at 9 October 2012, Dr Guirgis certified Ms Susak to be fit for suitable duties for 16 hours per week.
Though Dr Guirgis did not examine Ms Susak prior to the car accident, it could be inferred that he did not consider the certification of 30 hours per week by Dr Todorovic to have been unreasonable and he appears to have accepted the opinion of Dr Todorovic in that regard on its face. Though Ms Susak said in her statement of 15 November 2012 that she considered herself only fit for “approximately 20 hours per week of light duties and not the 30 hours recommended”, she raised no such qualification in her undated statement prepared for the car accident damages claim where she said that prior to the car accident she was certified fit for suitable duties for 30 hours per week. Nowhere in any of her statements did she say that she was informed by Dr Todorovic that prior to the car accident he considered her to be fit for only 20 hours per week of suitable duties but had certified her fit for 30 hours per week to assist her to obtain suitable employment.
Mr Wardell submitted that the Arbitrator’s error is “reflected in, and possibly caused by, the Arbitrator’s failure to make any reference to the large body of evidence indicating that the extent of [Ms Susak’s] disability and consequent incapacity had been greatly increased by the effects of the MVA”. He then repeated his previous reference to Dr Todorovic’s certification that Ms Susak had fit suitable duties for 30 hour per week prior to the car accident.
Mr Wardell referred to evidence Ms Susak relied on in her damages claim, in support of a claim for domestic assistance, to the effect that prior to the car accident she had been active in attending to a “very busy household routine”, but since the car accident she was no longer able to make the beds, prepare meals, do the laundry, do the shopping, or attend to gardening activities. He referred to Ms Susak’s undated statement, prepared for the damages claim, in which she said that since the car accident she experienced difficulties not previously present with numerous domestic activities.
Mr Wardell also referred to the particulars in respect of the damages claim provided by Ms Susak’s solicitors on 21 September 2009 which asserted that she was, as a result of the car accident, unfit for the light work she had been looking for prior to the car accident and that she had, prior to the car accident, a capacity to earn approximately $400 to $500 per week doing light duties, which she had lost. This letter also claimed the cost of domestic assistance for 26 hours per week.
In these circumstances, Mr Wardell submitted that it was incumbent upon the Arbitrator to approach the assertion in the present claim, namely, that the consequences of the car accident were minimal, with considerable caution, if not scepticism. Mr Wardell noted that Ms Susak performed suitable duties with the appellant until 21 December 2006 and had applied for a number of suitable jobs prior to the car accident, but does not “appear to have sought any suitable employment since the MVA”.
Dealing further with Ms Susak’s evidence, Mr Wardell submitted that inconsistencies between her evidence in support of the present claim and her evidence in the damages claim “leaves open a possible inference that she has tailored her evidence to maximise the compensation she might recover in the current proceedings in circumstances where her rights in relation to the MVA have been extinguished”.
Mr Wardell contended that, in these circumstances, the Arbitrator has failed to take account of relevant evidence and failed to give any or any adequate reasons in relation to these issues. He said that the evidence referred to above relating to the effects of the car accident was not even referred to by the Arbitrator in her decision. The Arbitrator attempted to neutralise the relevance and consequences of the car accident by ignoring it and accepting Dr Todorovic’s subsequent and contradictory amendment of his own evidence. A more detailed analysis of the whole of the evidence was required. The Arbitrator’s failure to do so constituted a failure to give reasons.
Next, Mr Wardell submitted that the Arbitrator erred in failing to undertake a more considered approach to the effects of the car accident than simply proceeding on the basis that Ms Susak was capable of working 20 hours per week prior to the car accident and is now capable of working 16 hours per week. He again referred to Ms Susak’s evidence of her ability before the car accident and her ability after it.
Mr Wardell noted that Ms Susak only injured her low back in 2004, which resulted in a seven per cent whole person impairment, but, in the car accident, she aggravated her back and injured her neck, right shoulder and right knee and was assessed to have a 14 per cent whole person impairment. This can be seen as having a significant impact on Ms Susak’s earning capacity. The Arbitrator failed to properly consider the issue of the impact of the car accident on Ms Susak’s earning capacity and failed to consider the evidence relevant to that issue.
Mr Curran submitted that, assuming an average workweek of 40 hours, Dr Guirgis’s apportionment of 50:50 between the two injuries means that the work injury has caused a limitation of 20 hours per week, in line with Dr Todorovic’s assessment. He argued that the Arbitrator had to make a general and “somewhat unscientific approach” to the incapacitating effects of the injurious events in question. She was correct to state that the exercise “must be somewhat imprecise” ([41]). The determinations were, on the overall facts, open to her and the determinations were in line with the evidence.
Mr Curran argued that the Arbitrator did not fail to take into account the effects of the car accident on Ms Susak’s capacity for work. He said that the particulars provided in support of the damages claim were not of much assistance in resolving the issue as to the actual incapacity and the value thereof stemming from the work injury. The assertions made by Ms Susak in the damages claim were of little relevance or weight. They do not constitute meaningful evidence on the issue of incapacity, based, as they were, on “largely speculative matters”.
The Arbitrator acknowledged the car accident and the submission that it was “another significant effect” ([14]). At [15], she reviewed the medical evidence from Dr Guirgis as to the effects of the car accident. At [18], she noted the submission that all of the assessments for incapacity for work had been done on behalf of the appellant before the car accident and were therefore of limited assistance in distinguishing the contributions made by the two injuries.
Dealing with the allegation that the Arbitrator failed to take into account the effects of the car accident on Ms Susak’s capacity to seek, obtain and maintain suitable employment, Mr Curran submitted that this was not a matter raised in the s 54 notice nor in any submission made to the Arbitrator.

Discussion and findings

I do not accept Mr Wardell’s submissions, which have ignored the Arbitrator’s reasons and how Mr Parker presented the appellant’s case at the arbitration. It is first appropriate to look at Mr Parker’s submissions at the arbitration and, then, in the context of those submissions, consider the Arbitrator reasons.
Mr Parker relied on the schedule of damages Ms Susak’s solicitors had prepared for her car accident claim. In that document, Ms Susak claimed past economic loss of $600 net per week and future economic loss of $500 net per week. He said that that claim was “not far different from what the section 54 notice has now got” (T5.16).
Mr Parker noted that when Ms Susak ceased work in December 2006 she had been doing suitable duties for 30 hours per week. After the car accident, she was initially certified fit for a graduated return to work, starting with four hours per week and, by 2012, she was certified fit for 16 hours per week. Referring to Dr Guirgis’s evidence, he submitted that that was “almost 50-50” (T6.43). He made, at T6.47, the following general submission about the assessment of Ms Susak’s claim for weekly compensation:
“The thing that we would submit, of course, is a discretion taking into account the legal side of things, of course, is that you have somebody who has gone from 30 hours to a superimposed additional incapacity and has dropped down to 16 on his view. But you would also, of course, be reducing the possibilities of being employed if you're a 30 hour person - a 30 hour a week person, the chance of getting, we would submit, employment is greater than if you're only a 16 hour person. Bearing in mind that most people are working 35 or 38 hours in this day, 30 hours for some people is full time for [unclear 0:17:12.5] positions.”
Mr Parker then made further references to Dr Guirgis’s evidence about the injuries Ms Susak received in the car accident.
The Arbitrator noted (at [12]) that Mr Parker’s submissions “emphasised the role played by the” (2009) car accident and that it was agreed that, in that accident, Ms Susak injured her neck, right shoulder, right knee and further injured her back. She also noted that reference had been made to the 2001 accident, but the thrust of Mr Parker’s submissions was that the effects of the 2009 car accident “were of real significance and had largely overtaken the effects from the subject injuries in 2004”.
The Arbitrator noted (at [13]) that after Ms Susak ceased work in December 2006 she was certified fit for suitable duties (by Dr Todorovic) for 30 hours per week. She also noted the evidence that Dr Guirgis attributed 50 per cent of the incapacity to the car accident and 50 per cent to the work accident. She referred (at [14]) to Mr Parker’s submission that Dr Guirgis’s evidence supported a reduction of about 50 per cent in Ms Susak’s capacity to work and that there are fewer opportunities to find work for only 16 hours per week than there are for 30 hours per week. She also noted (at [17]) Mr Curran’s submission that the 2004 injury was of “real significance” and that it continued to have serious and long-term effects.
At [15], the Arbitrator referred to Dr Guirgis’s evidence in October 2009 and his evidence that, in his report of October 2010, he accepted that the central posterior disc bulge evidenced on the later MRI scan had become bigger after the car accident, which she noted was another factor said to connect Ms Susak’s present incapacity with the car accident. Mr Curran had submitted that Dr Guirgis did not specifically say that the increase in the size of the bulging was due to the 2009 accident.
The Arbitrator recorded (at [16]) Mr Curran’s submission that Ms Susak had no lingering effects from the 2001 car accident and had been able to manage all her work until the 2004 work incident. The 2004 incident was, so it was submitted to the Arbitrator, of real significance and continued to have serious and long-term effects. That was supported, it was argued, by the evidence from Drs Pillemer, Todorovic and Guirgis.
At [17], the Arbitrator noted Dr Todorovic’s evidence in his report of 15 January 2013 that, realistically, Ms Susak had only been fit for 20 hours per week in the period prior to the car accident.
The Arbitrator then referred (at [18]) to Mr Curran’s submission that the s 54 notice provided no evidentiary basis for its conclusion that Ms Susak could earn “more than” $621.29 per week in suitable work. She correctly noted that all the assessments of Ms Susak’s capacity for work by the insurer pre-dated the car accident and were of limited assistance “in distinguishing the contributions made by the two injuries” ([18]). The appellant has not challenged this statement.

After referring to the principles in Cowra Shire Council v Quinn (1996) 13 NSWCCR 175; Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 and Naidu v Able Manufacturing Pty Ltd [2007] NSWWCCPD 237, the Arbitrator referred to Ms Susak’s evidence, which was in two statements. The Arbitrator said, at [26]–[27]:
“26.I have before me two statements from [Ms Susak]. One of those is undated and her second statement is dated 15 November 2102. [Ms Susak] describes her back injury in 2004 as severe. She says that in the 2009 motor vehicle injury she aggravated that earlier back injury and also injured her neck, and shoulders. She acknowledges she settled that matter with a lump sum in her favour, and claims her neck, right shoulder and right knee have improved greatly since that time. [Ms Susak] notes that prior to the motor vehicle accident Dr Todorovic had certified her fit to work 30 hours per week in light duties, but she considered she was in fact only fit to work 20 hours per week. She says she continued to have considerable problems with her low back which she believes are caused by the incident in 2004.
27.[Ms Susak] asserts she could not work as a clerk doing administrative tasks because that would require long periods of sitting which she cannot do because of her back problems. She does not think she could do a tele-marketing job for the same reason. She cannot sit for prolonged periods. She adds that her English skills would make it unlikely she could work in either of these areas. The applicant says that in addition she cannot stand for long periods, so that general sales assistant work would also be unsuitable. Lifting is also usually involved in such work.”
The Arbitrator then referred to the evidence from Drs Todorovic, Guirgis and Pillemer. I have already dealt with Dr Todorovic’s evidence and will not repeat it or my comments about it.
Dr Guirgis’s evidence, as summarised by the Arbitrator, was that Ms Susak suffered post-traumatic mechanical derangement of the lumbar spine in the 2004 injury, caused by musculo-ligamentous sprain/strain with intervertebral disc involvement. He noted the MRI scan showed a central protrusion affecting the thecal sac at L4/5 and L5/S1 causing right L4/5 sciatic radiation. He referred to the collateral conditions arising from the 2009 accident. He also explained why the jobs identified in the ARC Work Assessment Centre report of 18 August 2011 (the ARC Work Assessment) would either not be suitable, or be difficult for Ms Susak to find in the open labour market. The Arbitrator acknowledged that, in his October 2009 report, Dr Guirgis noted the worsening of Ms Susak’s symptoms in the car accident.
Dr Pillemer reported in February 2005 that Ms Susak suffered a mechanical problem at one or both of the lower two lumbar levels, on the basis of some internal disc disruption or facet problem. He considered the most likely explanation was a disc lesion. Ms Susak was only fit for restricted duties with the need to avoid heavy lifting, prolonged standing and prolonged bending or twisting activities. She needed to be able to change position regularly. Dr Pillemer confirmed his opinion in a report of November 2005.
The Arbitrator said (at [36]) that she “considered all the medical and other evidence before” her, as well as the parties’ submissions. She felt that, given the continuing effects of the 2004 injury, the pain Ms Susak continued to suffer from that injury, as well as her physical restrictions, limited work background and limited English skills, the labour market accessible to Ms Susak was “very limited” ([36]). These findings were consistent with an acceptance of Ms Susak’s evidence and disclosed no error.
The Arbitrator took into account the evidence that Ms Susak had been out of the workforce since December 2006 and is now 46 years of age. She also considered that intermittency of employment was likely to be a “significant feature” of Ms Susak’s ability to earn (Duncan v Roads & Traffic Authority of NSW [2007] NSWWCCPD 113). The appellant has not challenged any of these matters, all of which were relevant and appropriate to consider in the assessment of Ms Susak’s ability to earn.
Dealing with the assertion in the s 54 notice that Ms Susak had an ability to earn “more than” $621.29 per week, the Arbitrator (at [37]) accepted the submission by Mr Curran that the insurer had “not set out clearly the evidentiary foundation for that conclusion”. She correctly observed that the notice referred to various rehabilitation reports and vocational assessment reports, but agreed that they were “quite old”, pre-dating the car accident and the current claim by several years. She therefore found them of “very limited assistance”. Those findings were open on the evidence and disclosed no error.
The Arbitrator expressly dealt with the ARC Work Assessment, which the s 54 notice suggested provided the basis for the assertion that Ms Susak had an ability to earn $621.29 per week. She correctly noted that that report was “not a proper section 40 assessment report which assess[ed] [Ms Susak’s] capacity to work” ([37]). Rather, the report merely provided information on the market rates applicable to the positions of general clerk, call-centre operator, hand packer, assembler and sales assistant. The Arbitrator correctly recorded that Ms Susak had not been seen or assessed for the purposes of the report and that the limitations of the report were conceded in submissions.
Returning to Dr Todorovic’s evidence, that Ms Susak was only fit for 20 hours per week before the car accident, the Arbitrator concluded, at [38]:
“Moreover I accept those duties were subject to physical restrictions, especially in respect of lifting, prolonged standing and prolonged sitting. I am satisfied that the type of work within these restrictions [Ms Susak] could realistically have done for
20 hours per week from April 2012 would have attracted on average $300 per week. I therefore accept the amount of $300 per week as the correct amount for the purposes of section 40(2)(b) of the 1987 Act.”
Turning to Mr Wardell’s submissions on appeal, I have already dealt with his attack of the Arbitrator’s acceptance of Dr Todorovic’s evidence and will not repeat what I said about that issue.
Contrary to Mr Wardell’s submission, it is not open to infer that Dr Guirgis did not consider the certification of 30 hours per week by Dr Todorovic to have been unreasonable. Dr Guirgis did not see Ms Susak before the car accident and he expressed no opinion as to her capacity to earn at that time. He merely noted that she had been certified fit for 30 hours per week.
Mr Wardell’s complaint that Ms Susak considered that she was only fit for 20 hours per week in her statement of 15 November 2012, but she raised no such qualification in her undated statement, was not a point made at the arbitration. To the extent that it is an attack on Ms Susak’s credit (or reliability), and it is difficult to see it as anything else, it is improper to attempt to raise such a matter for the first time on appeal when Ms Susak has no chance to answer it and when Mr Parker made no such attack at the arbitration.
That Ms Susak did not say that she had been informed by Dr Todorovic that, prior to the car accident, he considered her to be fit for only 20 hours per week of suitable duties but certified her fit for 30 hours per week to assist her to obtain suitable employment was irrelevant and, also, not a matter argued at the arbitration. If it were untrue that the rehabilitation providers asked Dr Todorovic to certify Ms Susak fit for 30 hours per week, to assist her to obtain suitable employment, it would have been an easy matter for the appellant to call evidence to that effect. It did not do so.
The submission that the Arbitrator failed to refer to the large body of evidence indicating that Ms Susak’s incapacity had been greatly increased by the effects of the car accident is incorrect. The above summary of the Arbitrator’s reasons demonstrates that she referred to the relevant medical and lay evidence and, for reasons stated, accepted the evidence from Dr Todorovic and, implicitly, but clearly, accepted Ms Susak’s evidence. Ms Susak’s evidence included her statement that her neck, right shoulder and right knee had improved greatly since the settlement of the damages claim. The Arbitrator’s conclusion was open and disclosed no error.
Mr Wardell’s submission about Ms Susak’s evidence in her damages claim, in support of her claim for domestic assistance, was not a submission made at the arbitration. It is not an error for an Arbitrator not to refer to arguments never put (Bell at [22] and [30]). In any event, the Arbitrator was well aware of the injuries Ms Susak received in the car accident. That did not require her to reject Dr Todorovic’s evidence.
Mr Parker did not refer to the particulars provided in the damages claim by Ms Susak’s solicitors on 21 September 2009. However, he did refer to the schedule of damages relied on in that claim. That document was, quite clearly, an ambit claim and, as such, was of limited probative value. It did not require any particular analysis. I would have thought that it would have been more relevant to know the amount Ms Susak actually recovered in her damages claim. That fact was not in evidence.
The submission that it was, in the circumstances, incumbent on the Arbitrator to approach Ms Susak’s assertions about the consequences of the car accident with considerable caution, if not scepticism, was a clear attack on Ms Susak’s credit. As previously noted, Mr Parker made no such attack at the arbitration and it is improper to attempt to do so on appeal. Other than a general reference to the schedule of damages, which Mr Parker said supported the figures in the s 54 notice, Mr Parker made no reference to the matters relied on by Mr Wardell on appeal. It is therefore not open to argue that the Arbitrator erred by not referring to matters not argued (Bell at [22] and [30]).
The same comments apply to Mr Wardell’s submission that the inconsistencies between Ms Susak’s evidence in support of the present claim and her evidence in the damages claim leaves open a “possible inference that she has tailored her evidence to maximise the compensation she might recover in the present proceedings in circumstances where her rights in relation to the MVA have been extinguished”. This is yet another attack on Ms Susak’s credit when Mr Parker made no such attack at the arbitration. Had he done so, Ms Susak would have been entitled to call evidence in response. It is improper to attempt to raise it for the first time on appeal and it is rejected.
It follows that the submission that the Arbitrator failed to take account of relevant evidence and failed to give any or any adequate reasons cannot be sustained. As noted earlier in this decision, an Arbitrator’s obligation to give reasons depends on the circumstances of the individual case and the issues run at first instance (see [37] above). The Arbitrator dealt with the issues argued and, for reasons given, determined those issues against the appellant. Her reasons fully explained the basis for her conclusion and satisfied her obligation to give reasons.
Contrary to Mr Wardell’s submission, the Arbitrator did not ignore the effects of the car accident. She noted Mr Parker’s submissions about it, the medical evidence that dealt with it, and Ms Susak’s evidence. Accepting the evidence from Dr Todorovic and Ms Susak, which it was open to the Arbitrator to do, she concluded that, as a result of the 2004 injury, Ms Susak had a capacity to earn $300 per week. That finding was open on the evidence and disclosed no error.
The submission that the Arbitrator failed to take a “more considered approach” to the effects of the car accident is without substance. An Arbitrator’s approach must always be considered in light of the circumstances of the case and the submissions made. The Arbitrator considered the evidence and the parties’ submissions and did not accept the submissions made on behalf of the appellant, which were quite different to the submissions made on appeal.
Mr Wardell’s submission that, after the car accident, Ms Susak was assessed to have a 14 per cent whole person impairment has ignored the 5/7^th deduction that applied to that assessment because of the continuing effects of the 2004 injury. It has also ignored the fact that an assessment of whole person impairment does not equate to a finding of economic incapacity under s 40 (Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart [2008] NSWCA 155 per Campbell JA (Basten JA and Rein J agreeing) at [47]; 71 NSWLR 593).
The submission that the Arbitrator failed to properly consider the impact of the car accident on Ms Susak’s earning capacity was just another way of expressing the same complaints previously raised. For the reasons explained above, I do not accept that submission.

THE SECTION 40 DISCRETION (ground (f))

The Arbitrator’s decision

The Arbitrator considered the exercise of the discretion at [40], [41] and [43]. After having determined Ms Susak’s ability to earn to be $300 per week, the Arbitrator said, at [40]:
“40.In reaching the above conclusions I have taken into account the fact of the subsequent motor vehicle accident in January 2009. It was not entirely clear in submissions for the [appellant] whether that matter should be taken into account in my consideration of what [Ms Susak] would be able to earn in some suitable employment from time to time after the injury (being Step 2 of the Mitchell process) or in considering the exercise of my discretion to lower the amount otherwise arrived at by the mathematical calculation (being Step 4 of the Mitchell process). In the event I have considered the fact of the motor vehicle accident in January 2009, and its consequential effects on [Ms Susak’s] capacity for work, in making by [sic] determination at Step 2 of the Mitchell process.
41.I accept that the accident in January 2009 was a relatively serious injury that resulted in a significant degree of permanent impairment. That is clear from the MAC of November 2011 and is also clear from Dr Guirgis’s own comments. However[,] any apportionment on a purely mathematical basis as to the separate effects of the two injuries (in 2004 and 2009) on [Ms Susak’s] incapacity for work must be somewhat imprecise. Based on Dr Todorovic’s subsequent explanation for the upgrading of [Ms Susak’s] hours for which she could do suitable duties, I have taken the view that prior to the car accident in January 2009 she was really only capable of doing 20 hours per week suitable duties. My calculations proceed on that basis. I have therefore excluded the subsequent effects from the 2009 accident which initially rendered [Ms Susak] totally incapacitated for work, but later meant that she could only work 12 hours per week and then finally 16 hours per week. ”
After noting (at [42]) that Ms Susak suffered no lingering effects from the 2001 car accident, which finding has not been challenged, the Arbitrator concluded (at [43]) that there was no evidence before her of “circumstances that would warrant or justify the exercise of [her] discretion under s 40(1) of the 1987 Act to lower the amounts arrived at by the mathematical calculation above”.

Submissions

Mr Wardell said that the Arbitrator appeared to say at [40], [41] and [43] (though it was unclear) that she excluded the consequences of the car accident from her assessment of the mathematical difference (between steps one and two), or that she assessed Ms Susak’s ability to earn in suitable employment only on the basis of the incapacity she considered to result from the low back injury on 16 November 2004, and she therefore did not consider it appropriate to consider the exercise of the s 40 discretion. He said it was not clear what the Arbitrator meant when she said that she had “taken into account the fact of the subsequent motor vehicle accident” ([40]), particularly as she accepted that the 2009 car accident was a relatively serious injury that resulted in a significant degree of permanent impairment.
In any event, Mr Wardell argued that the Arbitrator erred in declining to exercise the s 40 discretion to reduce the mathematical difference in order to ensure that the amount awarded “is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case”. He said it was well established that a relevant matter to be considered in the context of the s 40 discretion is the occurrence of a supervening injury (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 (Nicholson); Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 (Cordina Chickens)).
Mr Wardell contended that there was little doubt that the car accident significantly increased Ms Susak’s incapacity, both in terms of the hours for which she could perform suitable work and in terms of the physical restrictions imposed on her for the purpose of identifying suitable employment.
Moreover, he said there was no evidence before the Commission that, since the car accident, Ms Susak had made any attempt to obtain suitable employment and the evidence relied on by her in her car accident claim in relation to domestic assistance would clearly indicate that her functional capacity has been significantly curtailed by the consequences of the car accident. It may further be inferred that it would be more difficult for Ms Susak to obtain suitable employment now that she is only certified fit for 16 hours per week.
Mr Wardell argued that a further matter to be taken into account is that the incapacity resulting from the car accident is undoubtedly as great, and almost certainly greater, than the incapacity resulting from the low back injury in 2004, meaning that Ms Susak has no incapacity additional to that which would have been present as a result of the car accident in any event.
Taking all these matters into account, Mr Wardell contended that, regardless of the mathematical difference between Ms Susak’s probable earnings but for injury and her ability to earn in suitable employment as a result only of the back injury, the “proper amount” awarded under s 40 after the exercise of the discretion should not have exceeded $200.
Mr Curran submitted that the Arbitrator was dealing with the period from 25 April 2012, well over three years after the car accident. This was not a case where the post-work car accident produced permanent total incapacity and the Arbitrator was entitled to find, as she did, that by 25 April 2012 the effects of the car accident were of modest impact on Ms Susak’s earning capacity.

Discussion and findings

I do not accept Mr Wardell’s submissions, which are completely different to the submissions Mr Parker made at the arbitration.
The first point to note is that the Arbitrator was uncertain if Mr Parker had submitted that the effects of the car accident should be taken into account at step two or step four. Given Mr Parker’s submissions on this issue (see [65] above), that uncertainty is understandable. This left it open to the Arbitrator to consider the effect of the car accident at either step two or step four, but not both.
Contrary to Mr Wardell’s submissions, it is tolerably clear from the Arbitrator’s reasons that she took the effects of the car accident into account at step two, that is, when she assessed Ms Susak’s ability to earn in suitable employment to be $300 per week. This follows from her statement (at [40]) that she considered the fact of the motor vehicle accident in January 2009, and its consequential effects on Ms Susak’s capacity for work, in making her determination at step two of the Mitchell process. Therefore, she did not consider it necessary to consider it at step four. Given the submissions made by Mr Parker, that approach disclosed no error.
Mr Wardell’s complaint might have some substance if the Arbitrator had assessed Ms Susak’s ability to earn at step two by reference to both the 2004 injury and the car accident. She did not do that. She accepted Dr Todorovic’s evidence that, as a result of the 2004 injury, Ms Susak could only work in suitable employment for 20 hours per week. The Arbitrator had earlier said (at [38]) that the type of work Ms Susak could realistically have done for 20 hours per week, within the restrictions listed by Dr Todorovic, would have “attracted on average $300 per week”. This assessment was based on the effect of the 2004 back injury and was consistent with the approach endorsed in Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 where the High Court held that compensation is only payable for the incapacity that has resulted from the relevant work injury.

Had the Arbitrator calculated Ms Susak’s ability to earn at step two by reference to the effect of both accidents (which was an available approach), then, given her other findings, she would have found an ability to earn of $240 per week (16 hours by $15 per hour). Deducting this amount from the probable earnings of $770.39 gives a difference of $530.39. As this difference has resulted from the effect of both the compensable 2004 injury and the non-compensable car accident, it would then be necessary to use the discretion to adjust that figure down by $60 to arrive at a figure that properly represents the loss caused by the 2004 injury. However, as the Arbitrator had already allowed for the effects of the car accident in her calculations at step two, by calculating Ms Susak’s ability earn solely by reference to the effects of the 2004 injury, to allow for it at step four would be to take it into account twice. That is not permissible.
The Arbitrator’s ultimate findings were not inconsistent with her statement that the car accident was a relatively serious injury that resulted in a significant degree of permanent impairment. As I have already noted (see [94] above) one cannot infer, from an award for permanent impairment compensation, that a worker is entitled to any award at all under s 40. Therefore, Dr Beer’s assessment that Ms Susak has a 14 per cent whole person impairment after the car accident, from which he deducted 5/7^th for the effect of the 2004 injury, is, given the Arbitrator’s other findings, of no consequence.
It follows that Mr Wardell’s submissions are unsustainable and, if accepted, would involve counting the effect of the car accident twice. It is accepted that a subsequent non-compensable injury is relevant to the exercise of the discretion (Nicholson), but not if the effect of that injury has, as it clearly has in this case, already been considered in calculating the worker’s ability to earn at step two.
Cordina Chickens does not assist the appellant and, in any event, was not argued by Mr Parker. That case considered the circumstances in which a worker may obtain two awards of compensation: one for partial incapacity and one for total incapacity. It held that while a finding of total incapacity, subsequent to a finding of partial incapacity, will not eliminate the liability for the initial partial incapacity, the calculation of compensation payable under s 40 for the initial partial incapacity calls for the application of the discretion in s 40(1). As Mr Curran submitted, the current claim does not concern any period of total incapacity. It therefore follows that, in addition to the reasons noted above, the principles discussed in Cordina Chickens have no application.
The submission that there was no evidence before the Commission that, since the car accident, Ms Susak made any attempt to obtain suitable employment was not a submission made at the arbitration and, as it could have been met by additional evidence, is not a submission that can be made on appeal. In any event, the failure to look for work is not relevant to the exercise of the discretion (Mitchell at 534) and the submission is without merit.
I have considered the submission about Ms Susak’s claim for domestic assistance earlier in this decision (see [87] above). Having regard to the Arbitrator’s approach to step two it was not necessary for her to have regard to the claim for domestic assistance in the exercise of her discretion. Mr Wardell’s submission was simply another attack on the Arbitrator’s finding at step two. I have already dealt with that attack.
The submission that it may be inferred that it would be more difficult for Ms Susak to obtain suitable employment now that she is only certified fit to work for 16 hours per week (compared to 20 hours per week) was not a submission made at the arbitration and is unsupported by any evidence. In any event, for the reasons explained above, given the Arbitrator’s approach at step two, it is not a matter that can be taken into account in the exercise of the discretion. That is because, at step two, the Arbitrator only assessed Ms Susak’s ability to earn by reference to the effect of the 2004 injury.
The submission that Ms Susak has no incapacity additional to that which would have resulted from the car accident in any event is untenable and has ignored the evidence from Dr Todorovic and Ms Susak, which the Arbitrator accepted, as to Ms Susak’s ability to earn.
Mr Wardell’s submission, made at the teleconference, that because of the effect of the car accident, Ms Susak cannot realise her ability to earn $300 seems to be based on the false premise that, since the car accident, Ms Susak has been totally unfit for work. That is clearly not correct. In the period relevant to the claim, Ms Susak has been fit for suitable employment for 16 hours per week. However, as explained above, the loss resulting from that level of capacity has resulted from the effects of both the 2004 injury and the car accident. Ms Susak cannot be compensated for both. An adjustment must be made at either step two or step four, but not both. The Arbitrator made the appropriate adjustment at step two. Given the way Mr Parker presented the appellant’s case, that was open and disclosed no error.
It follows that I do not accept the submission that the “proper amount” to be awarded under s 40, after the exercise of the discretion, should not exceed $200. The appellant’s real complaint is that, by accepting the evidence from Dr Todorovic, the Arbitrator erred in her calculation of Ms Susak’s ability to earn at step two. I have dealt with that challenge earlier in this decision and, for the reasons stated, have rejected it. It is not open to reintroduce that argument at step four.

ASSESSMENT OF PROBABLE EARNINGS (ground (g))

Submissions

Mr Wardell submitted that the Arbitrator erred in failing to apply the three per cent notional consumer price index increases to her finding of Ms Susak’s ability to earn, as she did in determining Ms Susak’s probable earnings. He contended that if such an increase were allowed in respect of probable earnings, it should also be allowed in calculating ability to earn. He conceded that this ground, of itself, would result in only a minimal change in the award and that it was raised primarily for the purpose of any reconsideration of the Arbitrator’s award.
Mr Curran submitted that no submissions were made on this point at the arbitration and that, if applied, the change in the award would be minimal. In these circumstances, given the de minimus impact on the award, this ground of appeal should be held not to be made out.

Discussion and findings

Mr Curran’s submissions are correct. Mr Parker made no submissions on this point at the arbitration and it is not an error for an Arbitrator not to deal with an issue not argued. As the point has been raised “primarily for the purpose of any reconsideration of the Arbitrator’s award”, and, as the award is not being reconsidered, because no relevant error has been established, it is not appropriate to recalculate the step two figure in the manner suggested.

CONCLUSION

Mr Wardell has essentially conducted the appeal as a re-hearing, with no proper regard to the Arbitrator’s reasons or the way counsel conducted the arbitration. In an appeal restricted to the identification and correction of error, that approach is not permissible. The Commission has repeatedly held that parties are bound by the conduct of their counsel at the arbitration. Mr Wardell’s attempt to rely on numerous submissions not raised at the arbitration, including improper attacks on the credit of Dr Todorovic and Ms Susak, was unsatisfactory.
One final matter needs to be considered, though the parties did not address on it. Order 1 made on 12 February 2012 contains an error that should be corrected. To be consistent with the Arbitrator’s reasons, the date “25 September 2012” should be “25 April 2013”. That amendment will be made to the Certificate of Determination.

DECISION

Save for deleting “25 September 2012” and substituting “25 April 2013” in paragraph 1 of the Certificate of Determination of 12 February 2014, the Arbitrator’s determination is confirmed.

COSTS

The appellant is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche
Deputy President

13 June 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE